Newcrest Mining Ltd v Santos WA Northwest Pty Ltd [No 2]
[2022] WASC 410
•1 DECEMBER 2022
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CIVIL
CITATION: NEWCREST MINING LTD -v- SANTOS WA NORTHWEST PTY LTD [No 2] [2022] WASC 410
CORAM: TOTTLE J
HEARD: 30 NOVEMBER 2022
DELIVERED : 30 NOVEMBER 2022
PUBLISHED : 1 DECEMBER 2022
FILE NO/S: CIV 1546 of 2022
BETWEEN: NEWCREST MINING LTD
Plaintiff
AND
SANTOS WA NORTHWEST PTY LTD
First Defendant
SANTOS (BOL) PTY LTD
Second Defendant
Catchwords:
Practice and procedure - Orders restricting access to information and things held by the court - Operation of the principles of open justice - Orders restricting the publication of evidence - Orders for the redaction of transcript - Where term of contract for the supply of gas confidential - Access to documents disclosing term restricted - Transcript redacted to remove references to confidential term or its general effect - Application to vacate orders - Turns on own facts
Legislation:
Rules of the Supreme Court 1971 (WA), O 67B r 5, r 6, r 11
Result:
Application dismissed
Category: B
Representation:
Counsel:
| Plaintiff | : | C V Wren |
| First Defendant | : | P Cahill SC |
| Second Defendant | : | P Cahill SC |
Solicitors:
| Plaintiff | : | Gilbert + Tobin |
| First Defendant | : | Corrs Chambers Westgarth |
| Second Defendant | : | Corrs Chambers Westgarth |
Cases referred to in decision:
AW v Rayney [No 4] [2012] WASCA 117
Cargill Australia Ltd v Viterra Malt Pty Ltd (No 23) [2019] VSC 417, (2019) 58 VR 611
Channel Seven Adelaide Pty Ltd v Draper [2004] SASC 351; (2004) 90 SASR 160
Cockburn Cement Ltd v Minister for Environment [2019] WASC 9
Herald and Weekly Times v Williams [2005] VSC 316
Hogan v Hinch [2011] HCA 4; (2011) 243 CLR 506
John Fairfax & Sons Ltd v Police Tribunal (NSW) (1986) 5 NSWLR 465
John Fairfax Publications Pty Ltd v District Court of New South Wales [2004] NSWCA 324; (2004) 61 NSWLR 344
John Fairfax Publications Pty Ltd v Ryde Local Court [2005] NSWCA 101; (2005) 62 NSWLR 512
Re A Former Officer of the Australian Security Intelligence Organisation [1987] VR 875
Riley McKay Pty Ltd v McKay [1982] 1 NSWLR 264
Russell v Russell [1976] HCA 23; (1976) 134 CLR 495
Titelius v Public Service Appeal Board [1999] WASCA 19; (1999) 21 WAR 201
X v General Television Corp Pty Ltd [2008] VSC 344; (2008) 187 A Crim R 533
TOTTLE J:
These reasons concern the plaintiff's application to vacate orders, which may be conveniently labelled 'confidentiality orders', previously made on the defendants' application.
Procedural history
The parties are in dispute over the terms of a gas supply agreement. The defendants, who were the suppliers of gas to the plaintiff, maintain that the term of the agreement which is the focus of the dispute is confidential and their commercial interests would be prejudiced if the term or its general effect were disclosed. The term is recorded in cl 2.5 of the agreement. I will refer to it as 'the critical provision'.
At a hearing on 8 September 2022, listed to deal with various interlocutory disputes, I made orders under O 67B r 5 of the Rules of the Supreme Court 1971 (WA) restricting access to certain documents on the court file which disclosed the critical provision or its general effect. I also made an order under the court's inherent jurisdiction restricting the publication of anything said during the hearing. The blanket prohibition on publication was made on the basis that a version of the transcript redacted to remove references to the critical provision would be made available in due course.
On 12 September 2022, of my own motion and following inquiries made by a media organisation, I made a further order prohibiting publication of certain paragraphs of the indorsement of claim in the writ. It appeared that the defendants had inadvertently omitted these paragraphs from the application dealt with on 8 September 2022. I formed the view that publication of those paragraphs would undermine the effectiveness of the orders made on 8 September 2022.
At a hearing on 14 September 2022, a further order was made under O 67B r 5 in respect of certain documents on the court file. The order made on 14 September 2022 was made 'until further order'.
The orders to which I have referred were made because, on the evidence adduced by the defendants and on the basis of their submissions, I was satisfied that the critical provision was confidential and commercially sensitive.
I record, however, that at the hearings on 8 and 14 September 2022 the plaintiff's senior counsel adopted a 'pragmatic approach'. The plaintiff made no concession as to the confidentiality of the critical provision and it made no submissions in opposition to the orders sought by the defendants but reserved its right to make an application to vacate the orders at a later stage of the proceedings.
On 23 September 2022, the defendants' solicitors provided the court with a version of the transcript redacted to remove references to the critical provision or its general effect.
In advance of a directions hearing scheduled to take place on 26 October 2022 the plaintiff filed and served submissions in support of an application to vacate the orders made on 14 September 2022.[1] The defendants filed and served submissions in opposition,[2] and the plaintiff filed and served reply submissions.[3]
[1] Plaintiff's submissions on non-publication and access restriction orders made on 14 September 2022 filed on 24 October 2022.
[2] Defendants' submissions on non-publication and access restriction orders made on 14 September 2022 filed on 25 October 2022.
[3] Plaintiff's reply submissions on non-publication and access restriction orders filed on 28 October 2022.
Rules of the Supreme Court O 67B
As Allanson J noted in Cockburn Cement Ltd v Minister for Environment,[4] the common law does not recognise a right to obtain access to a document that has been filed in proceedings and is held as part of the court record.
[4] Cockburn Cement Ltd v Minister for Environment [2019] WASC 9 [1], citing John Fairfax Publications Pty Ltd v Ryde Local Court [2005] NSWCA 101; (2005) 62 NSWLR 512 [31]; Titelius v Public Service Appeal Board [1999] WASCA 19; (1999) 21 WAR 201 [88], [99].
Order 67B regulates how information or a record or thing held by the court may be accessed by parties to proceedings and members of the public.
A person who is not a party to proceedings is entitled to limited information, as of right, under O 67B r 6. Otherwise, by O 67B r 11(3), a person who wants access to information or a record or other thing must apply for access.
A person who wishes to have access to the court record restricted can apply for an order under O 67B r 5. By sub‑rule (3) the Court may make an order that restricts access to information or a record or other thing if it considers:[5]
(a)that the information, record or thing is the subject of a pending claim that it is privileged or confidential; or
(b)that the information, record or thing is privileged or confidential; or
(c)that in the interests of justice, access to the information, record or thing should be restricted.
[5] Rules of the Supreme Court 1971 (WA) O 67B r 5(3).
An application for an order under sub-rule (3) must:[6]
(a)state the grounds for the application;
(b)identify the information, record or thing to which the order should apply;
(c)state the person, or class of persons, whose access to the information, record or thing should be restricted by the order;
(d)state any conditions that should apply if the Court were to give access to the information, record or thing;
(e)state the period for which the order should apply.
[6] Rules of the Supreme Court 1971 (WA) O 67B r 5(2).
Order 67B r 5(5) provides the court may at any time, by order, amend or cancel an order made under sub-rule (3).
In Cockburn Cement Ltd, Allanson J agreed with a submission to the effect that O 67B r 5(3)(b) does not require an applicant for a restriction order to show that the information asserted to be confidential has commercial value.[7] With respect, his Honour's acceptance of that submission was plainly correct. There is no textual warrant for adding a requirement of 'commercial value' or 'commercial sensitivity' to O 67B r 5(3)(b).
[7] Cockburn Cement Ltd v Minister for Environment [22].
Open justice principles
In AW v Rayney [No 4],[8] Buss JA (as his Honour then was) (McLure P and Newnes JA agreeing), in the context of suppression orders made in respect of reasons delivered by the Court of Appeal in a criminal case, examined the principles underpinning the concept of open justice. For present purposes it is sufficient to refer to the following aspects of his Honour's statement of the principles:
(a)An essential feature of courts in the Australian judicial system is that they sit in public.[9]
(b)The rationale for this principle is the benefit that flows from subjecting court proceedings to public and professional scrutiny and the maintenance of public confidence in the courts, in particular, confidence in the independence and impartiality of the courts.[10]
(c)A corollary of the open-court or open justice principle is that at common law, absent any limitation or restriction imposed by an order of the court, anyone (including the media) may publish a fair and accurate report of proceedings in open court.[11]
(d)At common law, a superior court may, in the exercise of its inherent jurisdiction, and an inferior court may, in the exercise of its implied powers, make orders that limit or restrict the application of the open-court or open justice principle, and the correlative entitlement to publish a fair and accurate report, by, for example, making a suppression order. But this jurisdiction or power may be exercised only where it is 'necessary' for the proper administration of justice.[12]
(e)This court's inherent jurisdiction to make suppression orders has not been circumscribed or excluded by any relevant express statutory provisions.
[8] AW v Rayney [No 4] [2012] WASCA 117.
[9] Russell v Russell [1976] HCA 23; (1976) 134 CLR 495; Hogan v Hinch [2011] HCA 4; (2011) 243 CLR 506.
[10] Russell v Russell (520); Hogan v Hinch [20].
[11] John Fairfax & Sons Ltd v Police Tribunal (NSW) (1986) 5 NSWLR 465, 481; John Fairfax Publications Pty Ltd v District Court of New South Wales [2004] NSWCA 324; (2004) 61 NSWLR 344 [20]; Hogan v Hinch [22].
[12] Riley McKay Pty Ltd v McKay [1982] 1 NSWLR 264, 270; John Fairfax v Police Tribunal (NSW) (476 ‑ 477); Re A Former Officer of the Australian Security Intelligence Organisation [1987] VR 875, 876 ‑ 877; Channel Seven Adelaide Pty Ltd v Draper [2004] SASC 351; (2004) 90 SASR 160 [37] - [39], [45] - [48]; Herald and Weekly Times v Williams [2005] VSC 316 [11] - [17]; X v General Television Corp Pty Ltd [2008] VSC 344; (2008) 187 A Crim R 533 [44]; Hogan [21], [26].
In Cargill Australia Ltd v Viterra Malt Pty Ltd,[13] the parties agreed that information concerning the price paid for the plaintiff's global malt business was commercially sensitive and confidential. Inadvertent disclosure of the information had been made during the hearing. The trial judge, Elliott J, made interim orders for the redaction of the transcript and subsequently dealt with an application for permanent confidentiality orders. In the course of his reasons for making permanent orders, Elliott J first considered the application of the Open Courts Act 2013 (Vic) and, after explaining why it did not apply, turned to consider the common law open justice principles. His Honour's statement of the general principles reflected the statement of those principles by Buss JA in AW v Rayney [No 4]. Elliott J then dealt with the application of the general principles to information said to be commercially sensitive and said:[14]
[13] Cargill Australia Ltd v Viterra Malt Pty Ltd (No 23) [2019] VSC 417; (2019) 58 VR 611.
[14] Cargill Australia Ltd v Viterra Malt Pty Ltd (No 23) [65] - [73].
Relevantly, in certain circumstances, commercial confidentiality may be necessary to the administration of justice, and so permit a departure from the principle of open justice. In such circumstances, the court may make a confidentiality order. A confidentiality order may, amongst other things, restrict access to a transcript of a hearing, in whole or in part, or, as here, require that certain portions of a transcript be redacted or otherwise marked or treated as confidential.
In relation to the order presently sought, the following principles apply.
First, the court will only make a confidentiality order where confidentiality is necessary for the administration of justice. In other words, a confidentiality order:
must be 'necessary in order to serve the ends of justice', 'necessary to secure the proper administration of justice in proceedings' or necessary to avoid a course which would 'destroy the attainment of justice in the particular case'.
Necessity is a stringent standard. It is not enough that a confidentiality order appear to be convenient, reasonable, sensible, or be perceived to be in the public interest, however understood, or that 'as a result of some "balancing exercise", the order appears to have one or more of those characteristics'. Further, and for obvious reasons, it is not enough that the applicant merely wishes to avoid scrutiny or maintain confidence, or subjectively believes the orders sought to be necessary. Furthermore, whilst relevant, it is not enough that the parties to a proceeding agree that a confidentiality order should be made, or that, as here, an application for a confidentiality order is not opposed. This is because the rationale of the principle of open justice is exposure to public scrutiny, to which the parties to a proceeding may be unanimously averse.
Secondly, it is not enough that the applicant merely assert confidentiality in respect of the information sought to be protected; rather, the applicant must identify a basis for the court to maintain the confidentiality. Relatedly, it is ordinarily for the applicant to adduce evidence upon which the court may reasonably conclude that the standard of necessity has been met. Specifically, the applicant must ordinarily adduce evidence of some apprehended particular or specific harm or damage that disclosure of the information the subject of the proposed order would cause.
Thirdly, the protection of commercially-sensitive information may, in appropriate cases, be necessary to the administration of justice. This is because the administration of justice requires that controversies between parties be resolved without a party, or a non-party, suffering severe and collateral commercial harm. As has been observed:
'Parties should not be deterred from coming to courts to enforce or protect their rights for fear that in doing so they will be forced to lose the very foundation of their commercial success ... or that they may lose some competitive advantage that derives from material that they rightly consider to be confidential or secret.'
For example, it is well-accepted that the principle of open justice may, in appropriate cases, accommodate the protection of trade-sensitive information, such as 'prices and costs paid and incurred' for valuable items, supplier terms, and commercially-sensitive aspects of goods and services sold.
Fourthly, where a confidentiality order is sought in respect of commercial information, it is for the applicant to establish that each piece of commercial information in respect of which a confidentiality order is sought has a confidential character warranting the protection of a court order.
Fifthly, the strength of an asserted need for confidentiality will necessarily vary according to context, and in light of matters including:
(1)The nature of the proceeding in which confidentiality is sought.
(2)The nature of the information in respect of which a confidentiality order is sought.
(3)Whether or not the information has already been received into evidence, or deployed in open court.
(4)The likelihood and severity of collateral damage to participants in the court proceeding or others, absent the confidentiality order sought.
(5)The nature and extent of the confidentiality order sought and how it would operate to interfere with the principle of open justice.
Finally, it is necessary to consider what effect, if any, the making of a confidentiality order in respect of certain evidence may have on the ability of the court to provide cogent reasons for its judgment in a proceeding. As was observed in Wainohu v New South Wales, the obligation on courts to provide adequate reasons for judgment is itself an aspect of the open justice principle. Plainly, where certain evidence is made subject to a confidentiality order, the court may be deprived of the opportunity to include and openly refer to that evidence in its published reasons. Whether that constitutes a significant obstacle may depend on whether or not, without relying on the confidential information, and by formulating its reasons in more general terms, the court may nonetheless 'convey an adequate account of the litigation and the reasons underlying the orders'. (citations omitted)
The defendants' evidence
In support of their application the defendants relied on two affidavits sworn by Mr Daniel Grant who is the General Manager for Domestic Gas in the Gas Marketing and Trading Division of Santos Ltd, the parent company of each of the defendants. The first affidavit was sworn on 7 September 2022. The second was sworn on 25 October 2022 and addressed what the plaintiff contended were limitations in the evidence contained in the first affidavit.
Mr Grant attached a copy of the agreement to his first affidavit. He referred to cl 22.11 in the agreement by which each party agreed that the agreement was confidential. Clause 22.11(a) provided:
(a)Each Party must (and must ensure that its employees, agents, officers, representatives, subcontractors and subconsultants) keep confidential and not allow, make or cause any public announcement or other disclosure of or in relation to:
(i)the terms of this Agreement and any related documents (including any negotiations or information in relation to those documents);
(ii)any information or any fact, matter or thing in relation to the Project, the Suppliers' Facilities, or Newcrest's Property; and
(iii)any other documents which are, or information which is, confidential to the other Party,
without the prior written consent of the Party to which the information is confidential.
In his evidence Mr Grant explained in some detail why disclosure of various terms of the agreement would be damaging to the defendants' commercial interests. In particular, he explained by reference to aspects of the critical provision, why disclosure of that provision would be damaging to the defendants' commercial interests and why the term and its general effect were 'commercially sensitive'.
The proposed redactions in the transcript
The plaintiff objected to two of the redactions proposed by the defendants to the transcript of the hearing on 8 September 2022. The defendants do not press one of the proposed redactions and propose reducing the scope of the other redaction so it is limited to redacting words that disclose the nature of the critical provision.
The plaintiff's submissions
The plaintiff's overarching submission is that 'the 14 September Orders and 8 September Transcript Redactions go beyond what is truly confidential and commercially sensitive'.[15] The plaintiff contends that Mr Grant's affidavit evidence does not support that the critical term is truly commercially sensitive and confidential. The submission is developed by reference to particular aspects of Mr Grant's evidence which I am unable to expand upon without disclosing the nature of the critical provision. Additionally, the plaintiff argues the fact that the defendants did not raise their confidentiality concerns about the indorsement of claim when the writ was first served in June 2022 demonstrates that the paragraphs which the defendants contended were confidential were not truly confidential.
[15] Plaintiff's submissions on non-publication and access restriction orders made on 14 September 2022 filed on 24 October 2022, 3.
In its reply submissions the plaintiff contends in effect that the court should not make a final determination as to confidentiality orders until it has a 'proper opportunity' to put on evidence and challenge Mr Grant's evidence.
Disposition
In the context of a commercial agreement, the existence of a contractual obligation to keep the terms of the agreement confidential and not allow any disclosure of it, points powerfully to the conclusion that the terms of the agreement are confidential. On the basis of the evidence before the court, I consider that the critical provision is confidential and that the discretion conferred by O 67B r 5(3) to make an order restricting access to documents which reveal the critical provision or its effect is enlivened. Having regard to the nature of the agreement, the market in which it was concluded and the contractual obligation of confidentiality I am satisfied that the defendants are entitled to an order restricting access to documents on the court's file which disclose the critical provision or its general effect. I am not persuaded that any delay on the part of the defendants in applying for the orders reflects to any material extent on the confidentiality of the critical provision.
Separately, on a fair reading of Mr Grant's evidence, and in the absence of any evidence contradicting his evidence, I am satisfied that disclosure of the critical provision would create a risk of damaging the defendants' commercial interests and the critical provision is 'commercially sensitive' information. I am satisfied that the making of orders preserving the confidentiality of the critical provision is necessary for the administration of justice in order to avoid the defendants suffering collateral commercial harm as a result of the disclosure of commercially sensitive information. Such orders extend to orders restricting the publication of statements made in the course of a hearing which disclose the critical provision or its general effect and to redacting the transcript of a hearing to remove references to such statements.
Conclusion
I will not vacate the 14 September 2022 orders though having reflected on the terms of the orders I consider that they may be simplified in a manner which will facilitate observance of them. I will address this aspect of the orders with the parties. The plaintiff will have the opportunity to make a further application to vacate or vary the orders if it wishes to do so.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
RC
Associate to the Honourable Justice Tottle
1 DECEMBER 2022
4
16
1