Omar Property Pty Ltd & Others v; Amcor Flexibles (Port Melbourne) Pty Ltd
[2019] VSC 446
•3 July 2019
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMERCIAL COURT
S ECI 2019 00109
| OMAR PROPERTY PTY LTD and Others | Plaintiffs |
| v | |
| AMCOR FLEXIBLES (PORT MELBOURNE) PTY LTD | Defendant |
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JUDGE: | Mukhtar AsJ |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 17 June 2019 |
DATE OF JUDGMENT: | 3 July 2019 |
CASE MAY BE CITED AS: | Omar Property Pty Ltd & Others v Amcor Flexibles (Port Melbourne) Pty Ltd |
MEDIUM NEUTRAL CITATION: | [2019] VSC 446 |
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DISCOVERY ― Adequacy of discovery ― Content of pleading ― Unreasonable confinement of ambit of discovery based on verbiage in pleading ― Importance of context and nature of the case and fact finding function of Court at trial
DISCOVERY ― Redactions ― Redactions for confidential information ― Redactions for asserted irrelevance of information not confidential ― Applicable considerations on application to remove redactions
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr M I Borsky QC with Mr R Chaile | Maddocks |
| For the Defendant | Mr L E Hawas with Mr C Lum | Baker and McKenzie |
HIS HONOUR:
Not long after the commencement of this proceeding in the Commercial Court, it was fixed promptly for trial by a Commercial Court Judge for a five-day trial commencing on 10 July next. On 27 June 2019 the trial date was vacated by Croft J because of three intervening discovery fights. This is the first of them. The two others are due to be heard on 7 August next.
The proceeding is a dispute over a commercial lease of industrial premises. The question is whether the defendant has validly exercised an option to renew its lease or is entitled to renew the lease. The plaintiffs says the defendant was not entitled to a renewal because it was in breach of the lease, and the breach was not remedied. By counterclaim, the defendant says its acts and omissions were not a contravention of the lease, and it is ought not be deprived of a renewal. The commercial interests appear to be of a high calibre.
Expositive pleadings have been administered. Each party has filed an affidavit of documents. Parties have filed witness statements from lay and expert witnesses. But, in preparing for trial, the plaintiffs claim the defendant’s discovery of documents has been insufficient, and, that some of the discovered documents were produced with redactions without justification or proper explanation, to the extent that not much of the contents remained for exposure. The plaintiffs say more documents ought to be discovered to enable their expert evidence to be completed, and to test or meet elements of the defence and the counterclaim.
Accordingly, by summons filed 17 May 2019 the plaintiffs sought orders requiring the defendant to make discovery of twelve categories of documents. Subsequently, the defendant discovered additional documents as sought in categories 3, 4(a) and 5 to 11 of the schedule. That left five categories of documents in dispute, with sub-categories.
The issue on the application is two-fold. First, there is a question of relevance. The defendant maintains the documents sought are irrelevant according to the pleadings. Secondly, there is a question whether the documents that have been discovered and produced with extensive redactions should be re-produced without redactions. I am not invited to inspect the redacted documents, because the plaintiffs say the redactions are evidently unjustified or suspect. The defendant opposes production of documents in unredacted form and does not invite the Court to examine the unredacted documents. But it accepts that any controversy about redactions is appropriately met by an order requiring the defendant to file an affidavit giving additional or better reasons for each redaction.
The application is made in exigent circumstances. An in-depth examination of the substantial materials on this application will have to give way to the greater importance of a prompt decision in the conflict. To that end, it is unnecessary to make any reference to the scope of the discovery obligation under Order 29 of the Court’s procedural rules or the Court’s powers under s 55 of the Civil Procedure Act. It can be accepted that costly and distracting discovery fights have led to a narrowing of the former obligation on a party to make discovery according to the perceived largesse of the test in the famous Peruvian Guano case[1] which permitted discovery of documents that were directly or indirectly within the purview of the pleadings and which might go to a fact in issue. Now, the commandment under the Civil Procedure Act is to give effect to the overarching purpose of facilitating ‘the just, efficient, timely and cost-effective resolution of the real issues in dispute’. That means the Court looks to ensure that discovery is limited to documents directly relevant to the issues in dispute and to the extent proportionate to the apparent needs and procedural justice of the case, and is not to be propelled by a lawyerly quest for leaving no stone unturned or finding the ‘smoking gun’.[2]
[1]Compagnie Financiere et Commerciale du Pacifique v The Peruvian Guano Company (1882) 11 QBD 55, 63.
[2]Liesfield v SPI Electricity Pty Ltd (2013) 43 VR 493, 501.
That said, pre-trial discovery of facts and documents is a very important tool of justice, especially in commercial litigation where much is usually documented in the ways of modern trade and commerce. That is why, in borderline cases, Courts tend in the interests of justice to make judgments that prefer, or err on the side of, disclosure.
At the outset, I should state my determinations on this application. The application was justified, but not completely.
First, I would allow the application for further discovery of category 1 (b), (d) and (e). The documents are relevant. That means collaterally that the application for further discovery of category 2 and 3 must also be allowed for the works under category 1.
Secondly, with one exception I would decline to make an order for the unredacted production of the minutes of meetings as discovered under category 4. The defendant’s position, in the event the Court was not satisfied that the redactions had been properly justified, was to invite the Court to order the defendant to give a better explanation of the redactions made. The redactions for documents marked ‘Commercial in Confidence’ can remain. But, I would order the unredacted production of documents marked ‘Redacted for Relevance’.
Thirdly, the documents sought in category 12 (a) for ‘the decision making process’ to install the printing press at the leased premises is too broad a category.
Fourthly ― and subject to my fifth determination ― I think documents sought in category 12 (c), (d) and (e) for any ‘advice, deliberation or consideration as to whether a building permit was required’ or whether the lessor’s consent should be obtained, are not relevant. On the plaintiffs’ case for breach of the lease, it is irrelevant why those steps were not taken. The defendant admits they were not taken.
However (and fifthly), the pursuit of category 12 agitates to my mind an order for discovery on a cognate issue as pleaded under paragraph 28 (b) of the statement of claim. Thereabouts, the plaintiffs allege that even if they were able under the lease to give retrospective consent to a renewal despite the defendant’s breaches, and even if it could not unreasonably withhold such consent, nevertheless it was not unreasonable for it to withhold retrospective consent ‘having regard to the fact that Amcor had already undertaken the Works before requesting consent, including in circumstances where Amcor knew, or ought reasonably to have known that it was required to obtain Omar’s written consent’. I think that distinct and significant issue means there ought be discovery of documents concerning the defendant’s state of knowledge or its realisation, before undertaking the works, that under the lease there was an obligation not to make or permit any structural alterations or additions to the premises without first obtaining the lessor’s consent. What comes of any evidence of that prior knowledge or realisation, and the failure of the defendant to act on it, will be a matter of adjudication at trial.
In giving the following reasons for those conclusions, I shall avoid copious reference to the pleadings. For ease of narration, I shall elide the relationship and interests as between the four plaintiffs and use the designations ‘lessor’ to mean the common interest of the plaintiffs and ‘lessee’ to mean the defendant.
The lessor owns industrial land at Williamstown Road in Port Melbourne. On about 31 March 2014, the lessor and lessee entered into a lease for an initial term of five years. The lessee had an option to renew the lease for a one further term of five years and a another term of two years. The lessee was not entitled to renew the lease if at the time of exercise of the option there was any un-remedied breach of the lease of which the lessor had given written notice. That is what the lessor says happened here.
Three covenants made by the lessee are pertinent. Under clause 5.2, the lessee covenanted not to make structural alterations or additions to the premises without first obtaining the lessor’s consent, on the proviso that the consent could not be unreasonably withheld. Under clause 5.4, the lessee covenanted to perform all statutory requirements applicable to the premises and to not permit anything to be done which may conflict with any statute. Clause 5.6 was a covenant by the lessee not to ‘cut, injure, damage or deface any services, facilities, plant and equipment or any other part of the Premises’.
The lessee installed an industrial sized 40 metre gravure printing press at the leased premises without obtaining the lessor’s consent or without obtaining a building permit. The plans in evidence show this to be a prodigious piece of equipment. According to the lessee’s defence, the installation took place between April 2017 and October 2017. The lessor served a notice of default dated 4 July 2018 on the lessee requiring it to remedy the breaches of the lease. The notice of default stipulated (with my underlining for a textual argument that arose):
F. The Tenant is in breach of clause 5.2 of the Lease, as follows:
F.1In or about 2017, in connection with its installation of an industrial size printing machine (Machinery) at the Premises, and without first obtaining the consent in writing of the Landlord for the purpose of Clause 5.2, the tenant did the following to the Premises:
F.1.1 modified and altered the structure of the building
F.1.2. broke the concrete slab of the floor;
F.1.3 excavated the ground;F.1.4carried out structural improvements and alterations to the concrete slab; and
F.1.5carried out alterations to the roof
G. The Tenant is in breach of clause 5.4 of the Lease, as follows:
G.1The Tenant failed to obtain a building permit prior to the installation of the Machinery at the Premises as required by the Building Act 1993 (Vic) in connection with such installation.
G.2Further, and as a direct consequence of the Tenant’s failure to obtain a building permit prior to the installation of the Machinery at the Premises, the tenant failed to comply with section 31(1) of the Occupational Health and Safety Act 2004 (Vic) which provides that a person who installs, erects or commissions plant who knows, or ought reasonably to know, that the plant is to be used at a workplace must ensure, so far as is reasonably practicable, that nothing about the way in which the plant is installed, erected or commissioner makes it use unsafe or a risk to health.
H. The Tenant is in breach of clause 5.6 of the Lease, by reason of:
H.1 Having broken the concrete slab of the floor in the course of installing the Machinery; and
H.2penetrations made to the roof.
Consonant with the notice, the statement of claim alleges:
(a) The lessee installed the press machinery by undertaking works at the premises ‘including’ (and there is another textual argument): cutting into and breaking the concrete slab of the floor of the premises; excavating the ground below the floor; pouring a new section of concrete slab which was supported by screw piles which were placed between the concrete slab and the ground below; installing the press on the new section of concrete slab; and penetrating the roof at the premises, including in order to install ductwork.
(b) The effect of the works and the installation of the press was, amongst other things, to make structural alterations and/or additions to the Premises and cut, injure and damage the roof and concrete slab of the premises, and in breach of clause 5.2 of the lease the lessee did not seek or obtain the lessor’s consent.
(c) Further or alternatively, at the time that the lessee performed the works, the Building Act 1993 (Vic) required that a permit be obtained for any work that might adversely affect the structural soundness of a building, its underpinning or the removal of any element that contributed to the support of any other element of the building and in breach of clause 5.2 the lessee installed the press and performed the works without having obtained a building permit under the Building Act.
The defendant admits that it installed the printing press at the premises. The lessee also admits it did not obtain the lessor’s prior written consent to the work. It does not plead why, but I am told by counsel that a witness statement for the defendant says it was an ‘oversight’. (One wonders, in passing, how the installation of such substantial machinery over a long period of time occurred unnoticeably, or without an urge to give any notice whether as legally required or prudentially.) However, after the event, the defendant says it requested the lessor to give its written consent to the works, retrospectively. Nothing in the lease, expressly, required the lessor to give retrospective consent but the lessee says the lessor was ‘entitled’ to give retrospective consent, and it was unreasonable for the lessor to withhold that consent. The lessee says that the works and installation of the press improved the concrete slab and extended the existing roof stacks. It says there was no damage caused to the premises or any damage had been rectified by the completion of the works. It says the works did not fundamentally alter the nature of the premises or the manner in which it was used.
Allied to all, the defendant also admits that it did not obtain a building permit, but contends that the Building Regulations exempted these alterations to the building because the works did not adversely affect the structural soundness of the building or any supporting element of the building.
The lessor responds by saying that even supposing retrospective consent could be given, it was not unreasonable to withhold retrospective consent having regard to the nature of the works and ‘having regard to the fact that Amcor [the lessee] had already undertaken the Works before requesting consent, including in circumstances where Amcor knew or ought reasonably to have known that it was required to obtain [‘the lessor’s] prior written consent’.[3]
[3]See para 28 (b) of the statement of claim.
On those elements of the case, the lessor seeks declarations that the lessee’s option notice was invalid and that the lease came to an end on 31 March 2019. It seeks possession of the premises. The lessee’s counterclaim seeks a declaration that the lessee was entitled to a renewal of the lease.
I turn to the categories of documents sought under the lessor’s summons.
Category 1(a)-(e): relevance
This asks for discovery of all plans, specifications and other construction documents:
delineating the whole of the works that have been undertaken to accommodate the Press including:
(a)the roof penetration works, including framing around roof penetrations and bracing of ventilation shafts at the roof penetrations;
(b)altered or installed services including:
(i)fire services and other ESM services;
(ii)mechanical services;
(iii)electrical services;
(c)base fixing of other structures into the slab;
(d)altered or installed structures other than the printing press, such as crane rails, equipment supports and the like;
(e)altered or installed structures in the building now occupied by the printing press.
An affidavit sworn on behalf of the defendant by Andrew John Terry on 14 June 2019 objects to any order for a further discovery. He appears by designation to occupy a senior position with Amcor.[4] Following the antecedent argumentative correspondence between lawyers, Mr Terry’s response is aligned with the defendant’s central contention by its lawyers that the scope of discoverable documents is governed by the pleadings ― that much is elementary ― and the lessor’s allegation of the lessee’s breach is circumscribed in the statement of claim to the lessee’s installation of the printing press. The lessee says it has already discovered plans etc. concerning installation of the printing press. It says the request for further plans and specifications in this category goes to ancillary or accessory works and services for a ‘wired up’ (my words) project, which are not ‘installation’ works. In submissions, that position was said to be established by reference to the Notice of Default, service of which was the legal step by which the lessor’s case was originated and delineated. The lessee contended that such notices are construed strictly in landlord and tenant law, and on a close examination of the language of the notice, it could not be said that the scope of works that were the subject of the breach included the five matters in this category of documents. In short, the lessee was contending the relevant ‘works’ was the affixation of the printing press to the floor and not works for the ‘wired up’ operation of the press. Likewise, it was said that the works wrongfully done without consent as stipulated in paragraph 14 and 15 in the statement of claim could not be adroitly enlarged in scope by use of the word ‘including’ before the stipulation of breach.
[4]Vice President, Finance & Information Technology of Amcor Singapore Pte Ltd, one of five business groups of Amcor Ltd.
The central contention was this: the scope of discovery is dependent strictly on the four corners of the pleading (and derivatively by the Notice of Default) and all that came within the purview of the meaning ‘installation’ was the installation of the machine and not any other ancillary works or altered or installed services.
In any event, Mr Terry’s affidavit swears that the defendant does not have any documents answering Category 1 (a) other than a quote for those works and a tax invoice, both of which have been discovered. That is accepted by the plaintiff. Likewise, he says that lessee has discovered all documents in relation to the construction of the concrete slab for the press and the works concerning the base fixing of the press to the slab. That disposes of the documents sought in paragraph 1 (c). That leaves in dispute the application for all plans, specifications and other construction documents in 1 (b), (d) and (e).
In my view, the discrimen or limitation imposed by the defendant on its discovery obligation based on the word ‘installation’ is far too narrow in the present context. Installation of a press could to my mind include, naturally, installation and operation. in working and safe condition. The lessee is taking an austere view of relevance in what appears to be a building type case within a tenancy dispute. It is plain from the materials before the Court that this is a substantial piece of equipment where it may be readily supposed that as part of its installation for the purposes of making it operative, there were manifold other works done that were ancillary to the installation or were integrated into the installation or as installed operation of the press in one way or another. It may be that some of these ancillary works of themselves were not ‘structural’ in that they did not involve alterations to the structural features or integrity of the building. But that could be debateable in a building type case, as they would be nevertheless integral to the operation of the plant and inextricable from the alleged breach of installing the plant without prior consent or a building permit.
When it comes to an exact and proper analysis of whether the ‘installation’ involved any structural alterations then in my view it would be essential for a Court, aided by expert evidence, to have before it a complete understanding of the entirety of the works. In addition when it comes to the Court adjudicating the lessee’s defence that the works it conducted were exempt from any requirement for a building permit, the lessor would be at a disadvantage in not having discovery about the entirety of the works in order to test the lessee’s case on the exemption.
Accordingly, I would allow the application for Category 1 (b), (d) and (e). That collaterally means an order for further discovery ought be made under Category 2 which seeks ‘as constructed or as built drawings for works undertaken at the Premises between 22 April 2017 and October 2017’. It also extends to category 3 which seeks ‘Any engineering inspection works for works in progress, or the completed works undertaken at the Premises’. Hitherto, the lessee has taken the objection that it has no such documents for what it regards as ‘the relevant work’. Now that I have rejected the defendant’s unjustifiable narrow view of the ‘relevant works’, I would also allow the application for those categories.
Category 12: relevance
Further discovery under this category is also disputed on the grounds of relevance. Part of the consideration of this category touches the redaction issue under category 4. For category 12, the plaintiff seeks these documents –
Internal memorandum, meeting minutes (except for Project Night minutes to the extent they have already been discovered), correspondence, emails or other documents including without limitation, any documents concerning or setting out information in relation to:
(a)the decision making process to install the printing press at the Property;
(b) the construction of the printing press;
(c)any advice, deliberation or consideration as to whether a building permit was required;
(d)any discussion, advice, deliberation or consideration as to whether consent to the works or the installation of the printing press should be obtained;
(e)any discussion, advice, deliberation or consideration as to why consent to the works or the installation of the printing press was not obtained.
The documents sought in category 12 (b) can be put aside as Mr Terry has sworn, and the lessor accepts, that the press was purchased by the lessee as pre-constructed plant.
I think the documents sought in category 12 (a) for ‘the decision making process’ to install the printing press at the leased premises is too broad. It can be detected in category 12 (a), (c), (d) and (e) the lessor is looking to see if the decision making process can reveal what the lessee’s attitude to its obligations or the lessor’s interests, and, why the lessee did not seek the lessor’s consent or obtain a building permit, maybe for the forensic purpose of seeing if it could show the lessee mightily or deliberately ignored its obligations under the lease.
On the lessor’s case for a breach of the lease, I think documents sought in category 12 (c), (d) and (e) for any advice, deliberation or consideration as to whether a building permit was required or whether the lessor’s consent should be obtained are not relevant. A breach is a breach; be it deliberate or inadvertent or the result of erroneous or strategic advice. On a case for breach of the lease, it is irrelevant why those steps were not taken. Therefore these categories of documents, as composed, are impermissibly ‘fishing’ for documents to see what the lessee was thinking or devising in not seeking consent to see if a case, not pleaded, can be made. I say ‘as composed’ because I can see a reasonable pursuit of discovery on a distinct issue on the pleadings calling for discovery of documents resembling what is sought in category 12, but on a more precise ambit and manifestly referable to the pleadings. But it is not on the primary breach of lease case. It concerns the lessee’s countervailing claim for an unreasonable refusal to give retrospective consent after the admitted breach. What follows is how I see an opening.
In paragraph 28 (b) of the statement of claim the lessor alleges that even if it was able under the lease to give its retrospective consent to a lease renewal despite the lessee’s breaches, and even if the lessor could not unreasonably withhold such consent, nevertheless it was not unreasonable for it to withhold its retrospective consent ‘having regard to the fact that Amcor had already undertaken the Works before requesting consent, including in circumstances where Amcor knew, or ought reasonably to have known, that it was required to obtain Omar’s written consent’. Put bluntly, the lessor might well say to the lessee: ‘Why should I give you my consent retrospectively when, knowing of your covenant under the lease, you went ahead and did not seek my consent to such major works which I say affect my interests in this property?’
This brings into analogical consideration the body of law concerning the landlord’s right to refuse an assignment of lease but only on reasonable grounds or language to that effect: see generally the digest of cases and analysis in Bradbrook Croft and Hay, Commercial Tenancy Law.[5] In those cases, the Court has regard not only to the terms of the lease but to all of the circumstances that inform consent which may concern not only the lessor’s property interests, but also the relationship with the assignee. In the assignment cases, the lessor may, for example, refuse consent having regard to the respectability or responsibility of the assignee or the undesirable use of the premises by an assignee. But, likewise, a Court may look for the real reason for a lessor’s refusal.
[5](Third edition) [15.12] ff.
I look to paragraph 28 (b) of the statement of claim. I think discovery of documents is attracted on the patent issue of the defendant’s state of knowledge or realisation that before undertaking the works at the premises, there was an obligation under its lease not to make or permit any structural alterations or additions to the premises without first obtaining the lessor’s consent. I think it is just to adapt category 12 and order discovery on that basis.
Category 4(b) to (v) ― Redactions
This category identifies 22 redacted documents as already discovered and produced by the lessee. After the filing of the summons, category 4 (a) was produced in unredacted form. The evidence is that all the documents in this category are minutes of meetings to carry out a corporate project called ‘Project Night’. Mr Terry’s affidavit explains that Amcor created that standalone project to implement a decision to close its packaging business at its Nunawading site and relocate it to other sites in Australia. He acknowledges that part of the project included the installation of the printing press at the leased premises that is the subject of this proceeding.
In the one example of the Project Night minutes in evidence, there was very little left of the document after redaction.[6] But, it appears that a regimented approach has been taken according to marked cells on the document that state whether the minutes were redacted ‘for Relevance’ or ‘Commercial-in-confidence’. The only exiguous exposure on this document comes under a sub heading ‘Equipment’.
[6]See Court Exhibit B. It appears by code to be the document in category 4 (j).
The starting point for analysis is that strictly speaking a party is required to produce the entire discovered document even though parts of if may be irrelevant.[7] That is because production of irrelevant parts does not ordinarily prejudice the discovering party in ways regarded as unjust.[8] But it has been recognised that a party is entitled to redact irrelevant parts of a document if it has a legitimate claim on the basis of confidentiality or the like: see Guns v Marr.[9] In that case, as is set out in the plaintiffs’ written submissions, Kaye J identified the following principles:
[7]See Gunns Ltd v Marr [2008] VSC 646 at [30].
[8]See Octagon Inc. v Hewitt (No 2) [2011] VSC 373 at [53].
[9][2008] VSC 646, [30].
(a) where there is a dispute as to the right of a party, making inspection, to mask or redact part of the discovered document, the Court may, in an appropriate case, inspect the document in its unmasked form, in order to assess the claim that the masked or redacted parts of the document are irrelevant to the issues in the case, and are parts which, by their nature, attract a valid basis for exclusion from the inspection processes;
(b) in assessing the claim of a party to be entitled to mask part of a discovered document, it is important to ensure that the redaction of irrelevant parts of the document does not create gaps affecting the intelligibility or meaning of the remaining portions of the document which are produced on inspection;
(c) where there is a dispute as to the right of a party to redact part of a discovered document, the oath of the party applying the redaction is not conclusive and it is for the Court to determine, on the material before it, whether that party had a right to do so;
(d) the onus lies on the party resisting production of the whole of the document to establish an appropriate basis for doing so; and,
(e) in determining the entitlement of a party to mask or redact a part of a discovered document, the courts have emphasised that the test is what is necessary to ensure the attainment of justice between the parties.
When it comes to the protection of access to confidential discovered documents, the legal considerations were stated this way by the Court of Appeal in Cargill Australia Ltd v Viterra Malt Pty Ltd[10] ―
On the one hand, a party to litigation has an interest in having access to documents held by its opponent that are relevant to the issues in the litigation. ... On the other hand, where the parties are commercial competitors (or ‘trade rivals’) and one of the parties discovers sensitive business information which, if used by the other party for purposes other than the litigation, would prejudice the first party’s commercial interests, the first party has an interest in minimising the risk of such use. The ultimate question is what is necessary for the attainment of justice in a particular case.
[10][2018] VSCA 260, [122].
It may be no answer to say that protection is afforded by the statutory Home Office v Harman obligation on any person not to use documents provided in a civil proceeding for a purpose other than in connection with the civil proceeding. [11] The law’s concern is with inadvertent disclosure. As was said by Hayne JA in In Mobil Oil Australia v Guina Developments Pty Ltd:[12]
Once the documents are inspected by the principals of the trade rival the information which is revealed is known to the trade rival and cannot be forgotten. Confidentiality is destroyed once and for all (at least so far as the particular trade rival is concerned). To say that the trade rival is bound not to use the documents except for the purposes of the action concerned is, in a case such as this, to impose upon that trade rival an obligation that is impossible of performance by him and impossible of enforcement by the party whose secrets have been revealed. ... Thus, if the trade rival may inspect the documents concerned, the confidentiality of the information in them is at once destroyed. Is that necessary for the attainment of justice in the particular case?
[11]Civil Procedure Act 2010 (Vic), s 27(1).
[12][1996] 2 VR 34.
Mr Terry swears in paragraph 17(d) of his affidavit that –
…
(ii)the Project Night minutes contain a number of references to confidential customer and supplier information regarding the manufacture of packaging products and Amcor’s internal discussions around managing these customer relationships as well as references to financial information related to Project Night. These have been redacted because Amcor is concerned about disclosure of confidential and commercially sensitive information and the possibility of this information becoming publicly available;
(iii)only a part of Project Night involved the installation of the press the subject of this Proceeding, and only a small part involved the building works to install the Press which are the subject of this proceeding. Project Night involved, amongst other things, all things to do with the closure of the Nunawading site including the relocation of equipment and production volume to other sites across the Amcor Australia & New Zealand group across the Asia-Pacific region and the redeployment and/or retrenchment of employees. This additional information is not relevant to the issues in the proceeding.
The plaintiffs contends that the redactions for ‘Commercial-in Confidence’ ought be removed. First, that Mr Terry is to be there understood as saying the minutes were redacted for commercial sensitivity, without saying the redacted parts were irrelevant. Logically, if the confidential document was irrelevant it would have been ‘Redacted for relevance’. So, the argument went, if the minutes were relevant, they had to be discovered. Secondly, the plaintiff says there was no question of trade rivalry here. There is information in a witness statement filed by the plaintiffs that the owners of the first plaintiff are also the owners of the Detmold Group, a family owned business that is a leading manufacturer of paper and board based packaging products doing business in Australia and Asia. Despite that, the witness says that the Detmold Group and the Omar Group are independent and have separate and distinct corporate and management structures.[13]
[13]See witness statement of Grant Fielder dated 26 April 2019, [4] – [11].
It is right to say that just because a relevant document contains confidential information does mean it is not discoverable, or that is therefore protected from production. I do not think Mr Terry is being shrewd in his affidavit. Despite the redaction taxonomy in the minutes, paragraphs 17(d) (ii) and (iii) of his affidavit must be read together. In saying that customer and supplier information regarding the manufacture of packaging products and financial information related to Project Night is ‘Commercial-in–confidence’, I think that implicitly also means, having regard to the description or nature of such information, it has nothing to do with the installation of the press at the premises. Accordingly, I see no basis for the Court intervening and requiring those redactions to be undone. That redaction has not occurred so as to affect the intelligibility or meaning of the remaining part of the document.
That takes me to the defendant’s widespread use of the ‘Redacted for Relevance’ cell, which attracts greater attention. If that was done on the defendant’s view of what it regarded as relevant on the pleadings, and about which I have already said was narrow and austere (at least for the issue of works and installation) then, I am afraid to say, there are grounds for apprehension about those redactions and the basis on which the defendant has decided what is and is not relevant. Mr Terry’s affidavit does not condescend into detail or explication about the specific criteria used to determine relevance or say anything about the sort of documents in that very large cell. Because of the taxonomy used, that relevance cell can be taken not to contain confidential information. For reasons stated in this judgment, I regard as relevant any document containing information concerning the lessee’s state of knowledge or recognition about its obligation to seek the consent of the lessor.
There is choice for the Court between ordering the removal of those redactions or requiring the lessee to file and serve a revealing and explanatory affidavit about the basis on which it has redacted for relevance. Given the approaching trial, and other disputes, I think the course least productive of delay and unabated apprehension and more disputation is to order that the documents in Category 12 (b) to (c) of the summons be produced to the plaintiff without redactions for the cell ‘Redacted for Relevance’. I apply the thinking that the fact that parts of the minutes are regarded by the defendant as irrelevant (and not confidential) does not prejudice the discovering party and no apparent injustice is caused.
I propose making the following orders, with compliance dates that have regard to the hearings due to take place before me on 7 August 2019 on the defendant’s application for particular discovery and to set aside a subpoena:
1. The defendant shall, by 24 July 2019, file and serve an affidavit under rule 29.08 giving particular discovery of the documents identified in paragraph 1(b), 1(d), 1(e), 2 and 3 of the Schedule (‘the Schedule’) to the plaintiff’s summons dated 17 May 2019.
2. Further to paragraph 1, that affidavit shall also give particular discovery of documents concerning the defendant’s knowledge or recognition (before undertaking the works that are the subject of this proceeding) of its obligation under the lease to not make, or permit to be made, any structural alteration or addition to the premises without first obtaining the lessor’s consent.
3. The defendant shall also by 24 July 2019 produce, for the plaintiffs’ inspection, copies of the documents it has already discovered in this proceeding as identified in paragraphs 4(b) to (v) of the Schedule but with a removal or uncovering of the redactions within the sections of those documents marked out as ‘Redacted for Relevance’.
4. The costs of the plaintiff’s summons are reserved for determination on 7 August 2019.
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SCHEDULE OF PARTIES
| OMAR PROPERTY PTY LTD | First plaintiff |
| MB WILLIAMSTOWN ROAD PTY LTD (as trustee for the MB Williamstown Road Trust) | Second plaintiff |
| JG WILLIAMSTOWN ROAD PTY LTD (as trustee for the JG Williamstown Road Trust) | Third plaintiff |
| ID WILLIAMSTOWN ROAD PTY LTD (as trustee for the ID Williamstown Road Trust) | Fourth plaintiff |
| - and - | |
| AMCOR FLEXIBLES (PORT MELBOURNE) PTY LTD | Defendant and Plaintiff by counterclaim |
| - and - | |
| OMAR PROPERTY PTY LTD | First defendant by counterclaim |
| MB WILLIAMSTOWN ROAD PTY LTD (as trustee for the MB Williamstown Road Trust) | Second defendant by counterclaim |
| JG WILLIAMSTOWN ROAD PTY LTD (as trustee for the JG Williamstown Road Trust) | Third defendant by counterclaim |
| ID WILLIAMSTOWN ROAD PTY LTD (as trustee for the ID Williamstown Road Trust) | Fourth defendant by counterclaim |
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