Orora Ltd v Asahi Holdings (Australia) Pty Ltd
[2015] VSC 749
•18 December 2015
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMERCIAL COURT
S CI 2015 05468
| ORORA LTD (ACN 004 275 165) (and others according to the attached schedule) | Plaintiffs |
| v | |
| ASAHI HOLDINGS (AUSTRALIA) PTY LTD (ACN 135 315 767) (and others according to the attached schedule) | Defendants |
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JUDGE: | Ierodiaconou AsJ |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 9 December 2015 |
DATE OF JUDGMENT: | 18 December 2015 |
CASE MAY BE CITED AS: | Orora Ltd v Asahi Holdings (Australia) Pty Ltd |
MEDIUM NEUTRAL CITATION: | [2015] VSC 749 |
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DISCOVERY― Pre action discovery of documents ― Purpose of rule ― Reasonable enquiries ― Volunteering of confidential document by prospective defendants with redaction ― Disavowal of possession of other documents ― Limited order made ― Supreme Court (General Civil Procedure Rules) 2015, r 32.05
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiffs | Mr N Hopkins QC with Mr M Tehan | Minter Ellison |
| For the Defendants | Ms W Harris SC with Mr R Craig | Herbert Smith Freehills |
HER HONOUR:
Introduction
By summons filed on 21 October 2015, the plaintiffs make an application for preliminary discovery of documents. The application is made pursuant to r 32.05 of the Supreme Court (General Civil Procedure) Rules 2015 (the ‘Rules’).
The documents sought are:
(a) documents evidencing the ‘unconditional agreement’ with another party referred to in the letter dated 21 September 2015 from Jane Holcombe, General Manager Procurement of Asahi Beverages to Jason Arnheim, General Counsel Australia of Orora Ltd, being exhibit SB-19 to the affidavit of Simon Thomas Conrad Bromell sworn on 16 October 2015 (the ‘Bromell affidavit’); and
(b) any agreement or other document evidencing arrangements for the future supply of beverage cans and ends and aluminium bottles to the second and third defendants by a party or parties other than the plaintiffs.
The reference to categories (a) and (b) in this decision are references to the categories above.
The summons is supported by the Bromell affidavit and affidavit of Anthony Hengel on 9 October 2015 (the ‘Hengel affidavit’).
The application is opposed by the defendants.
Both parties made oral submissions at the hearing of the application on
9 December 2015. Prior to the hearing, both parties also filed written submissions. In addition, the defendant filed an affidavit sworn by Ruth Overington on
8 December 2015 (the ‘Overington affidavit’).
At the hearing, the plaintiffs sought leave to amend their summons to include the following categories of documents:
(a) documents evidencing the ‘unconditional agreement’ referred to in the letter dated 21 September 2015 from Ms Holcombe to Mr Arnheim being exhibit SB-19 to the Bromwell affidavit;
(b) the ‘Visy Agreement’ referred to in paragraph 11 of the Overington affidavit;
(c) any agreement or other document of any kind evidencing or comprising or forming part or all of the arrangements or evidencing proposed arrangements for the future supply of beverage cans and ends to the second and third defendants by a related party or parties of the second and third defendants or a party or parties other than the plaintiffs;
(d) any document that evidences the requirements of the second and third defendants for the supply of beverage cans and ends and aluminium bottles, including pricing, for the period commencing upon the expiration of the current Can & End Supply Agreement that is exhibit AJH-7 to the Hengel affidavit;
(e) any document of any kind evidencing, relating to or concerning any ‘direction’ of the nature referred to in paragraph 8 of the Overington affidavit and/or the second bullet point of paragraph 2 of the letter of Herbert Smith Freehills dated 4 December 2015 which refers or relates to future supply of beverage cans and ends and aluminium bottles to the second or third defendants;
(f) any document generated or produced by the defendants in considering the Orora proposal in respect of the Asahi Beverages ‘Business and Proposal Requirements’ that is exhibit SB-7 to the Brommel affidavit, including any document which evidences a consideration by the defendants of the price competitiveness of the Orora proposal.
The defendants filed a notice to produce on 16 November 2015. They indicated at the hearing that they would not call for production. Accordingly, this issue was not further dealt with at the hearing.
Background
This application arises from a commercial dispute between a client and a supplier. They had a longstanding relationship. The client went out to tender for future supplies. The supplier was unsuccessful. The supplier argues that it was not given the opportunity to exercise ‘last rights’ in relation to the tender outcome. It says its ‘last rights’ clause arises out of a contract it has with the client.
Both the client and supplier consist of a number of corporate entities. Accordingly, there are multiple plaintiffs and defendants.
Proposed amendment to plaintiffs’ summons
The plaintiffs sought leave to amend their summons. The application was made orally and without notice. It was made without any supporting affidavit or other evidence. The defendants submit that the application to amend put the cart before the horse because the plaintiffs had not made ‘all reasonable inquiries’ as required by r 32.05.[1]
[1]
The plaintiffs submit that the late amendment was brought about because of further correspondence received from the defendants in the two or three days prior to the hearing. They say the situation was not helped by the late filing of the defendants’ submissions. The defendants’ written submissions were filed late and in breach of consent orders made on 11 November 2015 requiring that they file their submissions by 30 November 2015. The defendants’ submissions were filed on
8 December, the day before the hearing.
The amendments sought were to identify six categories of documents for preliminary discovery. Save for one category (category f), these documents were related to categories (a) and (b) in their summons and originating motion.
The Court has a discretion to permit a late amendment to a summons. The proposed amendments go beyond the relief sought in the plaintiffs’ originating motion filed on 21 October 2015. Further, they were made without any notice at all, and without supporting evidence. The defendants will be prejudiced by reason of the lack of notice. Given all these factors, the Court will not grant leave to the plaintiffs to amend their summons.
Application for preliminary discovery
Plaintiffs’ submissions
The plaintiffs rely on the supply agreement that is exhibit AJH-7 to the Hengel affidavit. They say that it took effect from 1 July 2008 and is due to expire on the later of 30 June 2016 or such time as the plaintiffs reach supply of 1.6 billion cans.
Mr Bromell deposes this is likely to be around August 2016.[2]
[2]Affidavit of Simon Thomas Conrad Bromell affirmed on 16 October 2015, paragraph 11, 12 (‘Bromell affidavit’).
The plaintiffs submit that the second and third defendants granted them a final option to supply ‘the package’.[3] They refer to a last rights clause in the Supply Agreement. The Supply Agreement states, at page 2, following the heading ‘Contract Term’:
The agreement period commences, 1st of July 2008, for a period of 6 years ending 30th June. Should volumes over the 6 year term not reach a total of 12 Billion cans, the contract will continue until such time as this total volume is met.
Thereafter the contract will automatically continue for a period of up to 12 months until either party gives not less than 3 months prior notice in writing.
In the spirit of continuing the long term relationship, the Purchaser will not enter into any future agreement with another party, without granting the Supplier the final option to supply the Package, subject to the Supplier being able to meet the Purchasers requirements including competitive pricing.
[3] Transcript 4.16-23.
The plaintiffs submit that in June 2015, the first defendant (which is the parent company of the second and third defendants), issued a ‘Business and Proposal Requirements’ document.[4] It was a tender for the supply of beverage cans and ends following expiry of the Supply Agreement. The plaintiffs provided a tender response, noting on page 16:
[4]Paragraph 20 of the Bromell affidavit. The document forms Exhibit ‘SB-7’ to the Bromell affidavit.
Last Rights
Orora is pleased to provide Asahi with this tender response. Please be aware that Orora has valuable last rights under the current Independent Liquor agreement and Orora’s rights in this regard are expressly reserved. In the granting of these rights, Asahi has no obligation not to enter into any future agreement with another party, without granting Orora the final option to supply the products, subject to Orora being able to meet Asahi’s requirements including competitive pricing. This tender submission is submitted on a without prejudice basis to those rights.
There was an exchange of correspondence between the parties following the tender response. Then on 18 September 2015, the first defendant informed the plaintiffs that it had decided not to award the tender to them.[5] They were informed by letter dated 21 September 2015 that there was now ‘an unconditional agreement in place with another party’.[6] The plaintiffs were not given any further opportunity to exercise their rights under the last rights clause. The first defendant disputed the application of the last rights clause.[7]
[5]Paragraph 3 of Exhibit ‘SB-16’ to Bromell affidavit.
[6]Paragraph 3 of Exhibit ‘SB-19’ to Bromell affidavit.
[7]Exhibit ‘SB-16’ to Bromell affidavit.
The plaintiffs submit that they sought details from the first defendant of its ‘requirements’ for a future agreement so they could determine whether they wished to exercise the last rights clause.[8] They say the information was not provided. Further, that the last rights clause has been breached by the second and third defendants.
[8]See Bromell affidavit.
The plaintiffs apply for preliminary discovery to determine:
(a) what the second and third defendants requirements are for supply of the package; and
(b) whether they are able to meet those requirements, including competitive pricing.
The plaintiffs submit that this information will enable them to determine whether they have a cause of action against some or all of the defendants arising out of the breach of the Supply Agreement, including breach of the last rights clause, and whether the plaintiffs thus have an entitlement to seek specific performance of the Supply Agreement, and/or damages. That is, they say the question is whether, had the second and third defendants complied with the clause, the plaintiffs would have met the requirements and entered into a new supply agreement. The plaintiffs say that if they could not match the requirements, then the inquiry is at an end because they will not have suffered loss or damage by the defendants’ breach of the last rights clause. They submit that if they obtain the information they seek then it may prevent unnecessary and fruitless litigation.
The plaintiffs submit that if the information indicates that the first defendant’s requirements could have been matched by the plaintiffs, then they are entitled to relief as a result of the breach of the last rights clause. In that case, the information sought will enable them to assess what relief should be sought.
Defendants’ submissions
The defendants agree that the second and third defendants are parties to the Supply Agreement. They say it expires in 2016. They deny that it has been breached.
The defendants say that the plaintiffs have identified what they allege to be a breach but, notwithstanding that, apply for preliminary discovery in order to determine whether to sue on it.
The defendants say that there are no documents which strictly fall within the categories (a) and (b) of the plaintiffs’ summons.[9]
[9]Defendants’ Outline of Submissions filed 8 December 2015, paragraph 7 (the ‘defendant’s submissions’).
The defendants say that the second and third defendants do not have any need for the future supply of the package. They say ‘package’ is defined in the Supply Agreement.[10]
[10]Package is defined in the supply agreement as the purchase of ‘all of its New Zealand and Australian requirements of beverage cans and ends and aluminium bottles’.
The defendants say that the future supply of the second and third defendants’ branded aluminium cans to the Asahi group will be provided by a third party supplier. The defendants say that there is a confidential agreement between Visy Packaging Pty Ltd (‘Visy’) and a related entity of the second and third defendants regarding this. They refer to this agreement as ‘the Redacted Third Party Agreement’.
The defendants do not concede that the Redacted Third Party Agreement falls within the original categories of the summons. However, they say that they wish to avoid a dispute over the proper construction of the categories for production and delays caused by the reformulation of the categories or making a fresh application. To that end, they have informed the plaintiffs that they will produce the Redacted Third Party Agreement, subject to certain conditions. The conditions relate to confidentiality. The defendants submit that Visy is a competitor to the plaintiffs, and that the Redacted Third Party Agreement contains very valuable commercial information. They refer to the confidentiality obligations in clause 77 of the Redacted Third Party Agreement.
The defendants submit that a balance needs to be struck between the provision of information to the plaintiffs and the protection of confidential information. They submit that this should be done by limiting disclosure of the Redacted Third Party Agreement to ‘nominated persons’ and requiring the execution of appropriate confidentiality undertakings.
The defendants say that the Redacted Third Party Agreement has been redacted to ensure that information which may conceivably pertain to requirements for supply, including pricing, remains visible to the nominated persons. They can then evaluate the Redacted Third Party Agreement to assess whether loss and damage has been suffered. The defendants say that the information will not however serve that purpose. It will not provide a complete picture of the value of the supply arrangements with the third party supplier to the plaintiffs. The defendants offer to meet with the plaintiffs on a without prejudice basis to explain why that is so and explain the value inherent in dealing with the third party supplier.[11]
[11]Defendants’ submissions paragraph 12.
Applicable Principles
Rule 32.05 of the Rules is applicable, and provides:
32.05 Discovery from prospective defendant
Where—
(a)there is reasonable cause to believe that the applicant has or may have the right to obtain relief in the Court from a person whose description the applicant has ascertained;
(b)after making all reasonable inquiries, the applicant has not sufficient information to enable the applicant to decide whether to commence a proceeding in the Court to obtain that relief; and
(c)there is reasonable cause to believe that that person has or is likely to have or has had or is likely to have had in that person's possession any document relating to the question whether the applicant has the right to obtain the relief and that inspection of the document by the applicant would assist the applicant to make the decision—
the Court may order that that person shall make discovery to the applicant of any document of the kind described in paragraph (c).
The following principles are relevant to this application.
(a)The rule should be construed benevolently, because it is intended to assist an applicant who does not have sufficient, precise information to commence a proceeding, and to prevent the bringing of speculative suits.[12] This is also consistent with modern case management principles in the Civil Procedure Act 2010.[13]
[12]Beston Parks Management Pty Ltd v Sexton [2008] VSC 392, [52] (‘Beston Parks’).
[13]Grocon Constructors (Vic) Pty Ltd v Biosciences Research Centre Pty Ltd [2014] VSC 204 [58].
(b)The rule ‘must be given the fullest scope its language will reasonable allow.’[14]
[14]Beston Parks [2008] VSC 392, [52].
(c)The applicant need not identify a cause of action precisely. It is sufficient to identify facts which may reasonably give rise to a right to obtain relief.[15]
(d)A ‘flimsy foundation’ or ‘mere hunch’ is insufficient to constitute a reasonable cause of action.[16]
(e)‘An applicant does not have to prove that there will be, only that there may be, a real benefit from making the order.’[17]
(f)‘The benefit may be the drawing of an appropriate pleading with proper particulars and the avoidance of substantial amendment after discovery, or, alternatively, the possible avoidance of unnecessary and fruitless litigation.’[18]
(g)The benefit may be ‘to determine the extent of the respondent’s breach and the likely quantum of any damages award.’[19]
(h)‘The ‘reasonable cause to believe’ requirement is primarily concerned with whether, as an objective fact, an applicant has sufficient information to decide whether to commence proceedings. So, an application cannot succeed if the applicant has sufficient information (assessed objectively), but where the inability to determine whether to commence proceedings arises, for example, due to an overly indecisive or cautious nature.’[20]
(i)If the applicant has decided to commence proceedings, it will be fatal to the application.[21]
(j)‘The existence and content of legal advice has no bearing on the question of whether the test in r 32.05 has been made out.’[22]
(k)The rule is a discretionary one.[23]
[15]Ibid [53].
[16]Ibid.
[17]Ibid. See also Optiver Australia v Tibra Trading Pty Ltd [2008] FCAFC 133, [47]-[48].
[18]Ibid.
[19]St George Bank v Rabo Australia Ltd (2004) 211 ALR 147, 154.
[20]Beston Parks [2008] VSC 392, [54].
[21]Ibid [56].
[22]Ibid [64].
[23]United Energy Limited v Energy Risk Management Pty Ltd [1998] VSC 133 [25].
The following principles are applicable in respect of confidentiality and redaction:
(a)‘The fact that the documents in respect of which discovery is sought may contain confidential information will not usually in itself be sufficient to cause the Court, in the exercise of its discretion to decline to order preliminary discovery.’[24]
(b)Confidentiality regimes are an appropriate response to concerns about the disclosure of highly sensitive confidential material to trade rivals.[25]
(c)Confidentiality regimes may include limiting disclosure to external lawyers and independent experts upon their giving undertakings to the Court.[26]
(d)Where a party has a legitimate claim of confidentiality, a party is entitled to redact irrelevant parts of a document discovered by it.[27]
(e)If there is a dispute about the right of a party to mask or redact part of the discovered document, the Court may inspect the document in its unmasked form in appropriate cases. The Court may then assess whether the redacted parts of the document are irrelevant to the issues in the case and ’are part which, by their nature, attract a valid basis for exclusion from the inspection processes. In assessing the claim of a party to be entitled to mask up part of a discovered document, it is important to ensure that the redaction of irrelevant parts of the document does not create gaps affect the intelligibility or meaning of the remaining portions of the document which are produced on inspection.’[28]
(f)Redaction should not ‘create gaps affecting the intelligibility or meaning of the unredacted portions of the document.’[29] Put another way, if ‘masking on the ground of irrelevance would detract from a proper understanding of the meaning and significance of the admittedly relevant parts of the document, then such masking is not justified.’[30]
(g)’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. It has been recognised that the rules must not be permitted to become an instrument of oppression, or to cause unnecessary unfairness to one or other party in litigation.’[31]
(h)The question is ’whether it is apparent that there are, or may be, substantial privacy or confidentiality interests which ought to be given protection’.[32]
(i)’The court will not permit the coercive nature of the discovery process to infringe the genuine interests of privacy and confidentiality for no legitimate purpose.’[33] The retention of secrecy of commercially sensitive information is a legitimate concern.[34]
(j)’Ultimately, the onus to establish an appropriate basis for redaction rests with the party resisting production of the whole of the document.’[35]
[24]Griffin Energy Pty Ltd v Western Power Corporation [2006] FCA 1241 [110] (‘Griffin Energy’).
[25]Optiver Australia v Tibra Trading Pty Ltd & Ors [2008] FCAFC 133 [40].
[26]Ibid. See also Griffin Energy [2006] FCA 1241 [111].
[27]Gunns Ltd v Marr [2008] VSC 464 [30].
[28]Ibid [31] [citations omitted]. See also [33] of same case.
[29]Octagon Inc v Hewitt [2011] VSC 373, [33] (‘Octagon’).
[30]Telstra Corp v Australis Media Holdings (2004) ATPR 41-996, 3.
[31]Gunns Ltd v Marr [2008] VSC 464, [34]. See also Octagon [2011] VSC 373, [32] which makes reference to the Civil Procedure Act 2010 and the rules of the Court being designed to enhance justice and to facilitate the resolution and determination of disputes.
[32]Telstra Corp v Australis Media Holdings (2004) ATPR 41-996, 3.
[33] Octagon [2011] VSC 373, [33].
[34] Ibid at [37].
[35]Ibid at [32], referring to the Gunns case. See also MG Corrosion Consultants Pty Ltd v Gilmour [2011] FCA 1514 [11]-[14] which refers to the Federal Court Rules.
Application
Rule 32.05
The plaintiffs seek preliminary discovery on a relatively narrow basis. They have already formed the view that the last rights clause has been breached. The Court need not determine whether or not this will be a successful cause of action. It is only required to be satisfied that the plaintiffs may have a right to obtain relief. It is satisfied of that. Sensibly, the defendants did not seriously dispute that. In order to determine whether the plaintiffs have a remedy, that is, specific performance and/or damages, they submit that they need preliminary discovery. As the authorities above indicate, this is a legitimate reason to seek preliminary discovery, and meets the requirements in r 32.05(a).
Rule 32.05(b) requires the plaintiffs to have made all reasonable inquiries before concluding that they do not have sufficient information to enable them to decide whether to commence a proceeding in the Court to obtain relief.
Have the plaintiffs made all reasonable inquiries?
On 23 September 2015, the first plaintiff sought details of the first defendant’s requirements ‘for a future supply agreement, including competitive pricing details’.[36] It indicated that if the information was not provided, then proceedings would be commenced to compel production, including pricing details. The defendants’ response was that the information regarding the future supply agreement was in the tender proposal with which they had already been provided, and they appeared to be seeking confidential third party pricing.[37]
[36]Page 2 of Exhibit ‘SB-20’ to Bromell affidavit.
[37]Exhibit ‘SB-21’ to Bromell affidavit.
On 21 October 2015, the plaintiffs filed their summons and originating motion. The defendants’ solicitors wrote to the plaintiff’s solicitor in response by letter dated
4 December 2015.[38] They referred, inter alia, to the ‘unconditional agreement’ and asserted that there was no written agreement. They indicated that the reference to an ‘unconditional agreement’ was an authorisation for the CFO of each Asahi company to enter into agreements with third parties that allow supply to other companies within the Asahi group. Therefore there would be no documents produced in response to category (a) of the summons. Further, that the future supply of beverage cans differs materially from those the subject of the current agreement with the plaintiffs and that there is no longer a need for supply of the ‘package’ (as defined in the current agreement). Therefore there would be no documents produced in response to category (b) in the summons. Further, that the plaintiffs had participated in the tender and their pricing was not competitive. The letter stated:
The Third party agreement bears little relationship to the agreement which would have been entered into with your clients had they been successful in the recent tender process. Among other things, it will reveal to Orora the value attributable to the award of future supply to the third party supplier which exceeded that available under the Orora proposal. For this reason, even if the Third party agreement was responsible to …[category(b) of summons] (which is denied), its production would not assist your clients’ to evaluate their position with response to the decision as to whether or not to commence a proceeding against [the second and third defendants]. Save for the Third party agreement, there are no other documents potentially response to [category b]…
[38]Exhibit ‘REO-4’ to the Overington affidavit.
The letter concluded with a proposal to produce a redacted version of the Third party agreement with certain conditions, including the dismissal of the preliminary discovery application.
The plaintiffs’ solicitors responded by way of letter dated 8 December 2015.[39] They sought the ‘agreement’ and ‘direction’ between the CFO and other Asahi entities, subject to redactions. They also sought information on the redactions proposed to the Third party agreement.
[39]Exhibit ‘REO-4’ to the Overington affidavit.
The defendants’ solicitors responded by way of letter dated 8 December 2015.[40] They offered, inter alia, to provide a redacted Third party agreement.
[40]Exhibit ‘REO-4’ to the Overington affidavit.
The correspondence above indicates that the plaintiffs have made all reasonable inquiries in respect of categories (a) and (b) of the summons.
The defendants’ submission that the plaintiffs have not made all reasonable inquiries because they did not take up their offer to meet with them to explain documents is rejected. The approach taken by the defendants, namely that they wished to view the documents and independently assess them, rather than relying on the plaintiffs to do so, is reasonable.
The plaintiffs have deposed that they do not have sufficient information to determine whether they have a remedy. Accordingly, they do not have sufficient information to decide whether or not to commence a proceeding. Consistently with modern case management principles in the Civil Procedure Act, the plaintiffs should not initiate proceedings which would be fruitless. The plaintiffs submit that they need to know if they would have met the requirements of the new supply agreement. The Court is satisfied that the plaintiffs do not have that information and need it to decide whether to commence proceedings. It is satisfied that categories (a) and (b) of the summons may be of real benefit in informing the plaintiffs’ decision as to whether or not to commence a proceeding.
Rule 32.05(c) requires the plaintiffs to establish that there is reasonable cause to believe the defendants have, or are likely to have, or have had, or are likely to have had, documents in their possession that relate to the question whether the plaintiffs have the right to obtain relief and that inspection of the document by the plaintiffs would assist them to make that decision. The defendants say that they do not have any documents within the category (a) of the summons, namely the unconditional agreement referred to in the letter of 21 September 2015 discussed above. As discussed above, the defendants sought to explain away their own reference to the unconditional agreement by reference to an internal authorisation for Asahi group CFOs. No written agreement is produced. Importantly, the reference to the unconditional agreement was made in the context of the decision to reject the plaintiff’s tender proposal. Relevantly, the 21 September letter stated:
[The second and third defendants] reject any allegation that they have breached their contractual commitments. They refer to and repeat, the matters outlined in our letter dated 18 September 2015.
Further, in view of the decision not to accept Orora’s proposal, [the second and third defendants] now have an unconditional agreement in place with another party.
The plaintiffs have reasonable cause to believe that the defendants have an unconditional agreement.
In respect of category (b) of the summons, the defendants say that they have provided to the Court the only document that could respond, being exhibit ‘REO-5’ to the Overington affidavit. This document is discussed further below.
Categories (a) and (b) relate to the question of whether the plaintiffs have the right to relief. Inspection of documents will help the plaintiffs decide whether to commence proceedings.
Confidentiality Regime
Visy is a party to the Third party agreement referred to above.[41] The defendants’ assertion that Visy and the plaintiffs are trade rivals is not disputed by the plaintiffs. It is accepted that there are legitimate confidentiality claims and the plaintiffs have proposed a confidentiality regime in response. This is discussed further below.
[41]A letter from Visy to the defendants indicates it wishes to protect its confidential information and also proposes a confidentiality regime in the event a court orders disclosure. See Exhibit ‘REO-2’ of the Overington affidavit. The defendants also referred to clause 77, a confidentiality clause, in the Third party agreement.
The defendants have provided the Redacted Third Party Agreement to the Court for inspection. It is confidential exhibit REO-5 to the Overington affidavit. It is heavily redacted. It is 97 pages, of which 74 are wholly redacted and 20 are partially redacted. The nature and extent of the redactions are such that it is not possible to obtain a proper understanding of the meaning and significance of the redacted agreement. Even basic information about the nature of the agreement is redacted. For instance, the parties’ names, recitals, contract duration and date are not evident.[42]
[42]There is a company letterhead visible, but it is not evident whether or not they are a party to the agreement and who the other parties are to the agreement.
The plaintiffs have suggested an appropriate confidentiality regime. Firstly, they have submitted that the documents they seek should be redacted to obscure the pricing information for the supply of products other than beverage cans and ends and aluminium bottles. Secondly, they have suggested that inspection be limited to each of the persons in the proposed Schedule B who have signed a confidentiality undertaking. The form of the confidentiality undertaking is largely agreed between the parties. It is Schedule A of the plaintiffs’ proposed orders behind tab 13 of their court book. The defendants suggest that paragraph 3(a) be narrowed. Their proposed changes are marked up:
Notwithstanding clause 1 of this undertaking, the defendants agree that I am permitted to disclose the Confidential Information:
(a)solely for the purpose of enabling the plaintiffs to commence a proceeding against the second and third defendants for any alleged breach of the agreement
dated 2008 between the plaintiffs and the second and third defendants,between them being Exhibit ‘AJH-7’ to the affidavit of Anthony Hengel sworn 9 October 2015, in which case I will use my best endeavours to ensure that the use of the Confidential information remains confidential in that proceeding; and
This suggested amendment is appropriate as it provides clarity to the undertaking. It is common ground between the parties that the agreement was subsequently amended and accordingly, the words ‘and including any subsequent amendment’ should be added for clarity. Clause 1(a) should therefore read as follows:
(a)solely for the purpose of enabling the plaintiffs to commence a proceeding against the second and third defendants for any alleged breach of the agreement between them being Exhibit ‘AJH-7’ to the affidavit of Anthony Hengel sworn 9 October 2015 and including any subsequent amendment, in which case I will use my best endeavours to ensure that the use of the Confidential Information remains confidential in that proceeding; and
The reference to the Court hearing date in paragraph 1 of the confidentiality undertaking should be changed from 8 to 9 December. With these amendments, the Court is satisfied that the confidentiality undertaking together with limits on disclosure discussed above, is an appropriate confidentiality regime.
Conclusion
The Court will make orders requiring the defendants to produce the documents in categories (a) and (b) of the summons for the plaintiffs’ inspection. The documents are to be redacted only to obscure the pricing information for the supply of products other than beverage cans and ends and aluminium bottles. Inspection is to be limited to the persons in Schedule B of the proposed order discussed above, and subject to execution of an undertaking in the form referred to above.
The parties are requested to confer regarding the appropriate orders, including costs.
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SCHEDULE OF PARTIES
ORORA LIMITED (ACN 004 275 165) First Plaintiff ORORA PACKAGING NEW ZEALAND LIMITED Second Plaintiff - and - ASAHI HOLDINGS (AUSTRALIA) PTY LTD
(ACN 135 315 767)First Defendant ASAHI PREMIUM BEVERAGES PTY LTD (ACN 077 568 480) Second Defendant INDEPENDENT LIQUOR (NZ) LIMITED Third Defendant
Transcript of Proceedings, Orora Ltd v Asahi Holdings (Australia) Pty Ltd (Supreme Court of Victoria,
S CI 2015 05468, Ierodiaconou AsJ, 9 December 2015) 47, (‘Transcript’).
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