Patrick Stevedores Operations No 2 Pty Ltd v Essential Services Commission - [2022] VSC 175

IN THE SUPREME COURT OF VICTORIA Not Restricted
AT MELBOURNE
COMMON LAW DIVISION
JUDICIAL REVIEW AND APPEALS LIST
S ECI 2021 04323
BETWEEN:

PATRICK STEVEDORES OPERATIONS NO 2 PTY LTD (ACN 056 292 687) & ANOR
(according to the attached Schedule) Plaintiffs

v

ESSENTIAL SERVICES COMMISSION & ORS
(according to the attached Schedule) Defendants
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JUDGE:

Irving AsJ

WHERE HELD:

Melbourne

DATE OF HEARING:

31 March 2022

DATE OF DECISION:

8 April 2022

CASE MAY BE CITED AS:

Patrick Stevedores Operations No 2 Pty Ltd & Anor v Essential Services Commission & Ors

MEDIUM NEUTRAL CITATION:

[2022] VSC 175

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EVIDENCE – Confidentiality – Application for confidentiality order – Where landlord and tenant relationship – Whether documents have confidential character – Whether necessary to administration of justice to make confidentiality order – Whether disclosure would harm a party or non-party – Cargill Australia Ltd v Viterra Malt Pty Ltd (No 23) (2019) 58 VR 611, applied.
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APPEARANCES:
Counsel Solicitors

For the Plaintiffs Mr T K Jeffrie of counsel Gilbert & Tobin

For the First Defendant Mr P J Hanks of Her Majesty’s counsel HWL Ebsworth Lawyers

For the Second Defendant Mr C Tran of counsel Herbert Smith Freehills

The Third Defendant Ms K A O’Gorman of counsel
HIS HONOUR:
Introduction

1 The plaintiffs commenced a judicial review proceeding regarding the scope of the Essential Services Commission’s (ESC) inquiry under the Essential Services Commission Act 2001 (Vic) into the Port of Melbourne Operations Pty Ltd’s (PoM) compliance with a pricing order (Pricing Order) made in 2016 under s 49A of the Port Management Act 1995 (Vic) (PMA).

2 In support of its application, the plaintiffs filed the affidavit of their solicitor Andrew Floro affirmed 15 November 2021. Mr Floro’s affidavit exhibited a number of documents said to be confidential (Exhibit AAF-2).

3 This ruling concerns the plaintiffs’ application by summons filed on 23 March 2022 seeking orders that Exhibit AAF-2, other than one document within the exhibit, be kept confidential and only accessed by PoM’s solicitors and counsel and, on entering into a confidentiality undertaking, its General Counsel.

4 The plaintiffs’ application is made pursuant to the inherent jurisdiction of the Court.

5 PoM was joined to the proceeding one month after it was commenced. PoM oppose the plaintiffs’ application for confidentiality orders.

6 Neither the ESC nor the Assistant Treasurer[1] (who was joined to the proceeding as the third defendant on the same day the plaintiffs’ summons was heard), sought to be heard on the plaintiffs’ application for confidentiality orders.
[1]Assistant Treasurer, Minister administering the Essential Services Commission Act 2001 (Vic).

7 For the reasons that follow, I have decided that the plaintiffs’ summons filed 23 March 2022 should be dismissed.

Background

8 The plaintiffs’ operations require an ongoing and productive commercial relationship with PoM. PoM is the private operator of the Port of Melbourne, a large port for containers and general cargo in Victoria. PoM is the monopoly provider…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2022] VSC 175
Decision Date: 8 April 2022

CaseChat Overview and Summary

In this matter, the applicant, Patrick Stevedores Operations No 2 Pty Ltd, sought a confidentiality order in relation to certain documents that were to be produced in proceedings before the Fair Work Commission. The respondent, the Essential Services Commission, opposed the application. The case was heard by the Federal Court of Australia. The central issue before the Court was whether the documents in question had a confidential character and if it was necessary in the interests of justice to grant a confidentiality order. This required consideration of whether the disclosure of the documents would harm either party to the proceedings or a non-party.

The Court noted that the documents in question were part of a landlord-tenant relationship and that the tenant, Patrick Stevedores, argued that the documents contained sensitive commercial information. The Court considered the factors set out in Cargill Australia Ltd v Viterra Malt Pty Ltd (No 23) (2019) 58 VR 611, which required it to consider the nature of the information, the relationship between the parties, and the potential harm that disclosure could cause. The Court found that the documents did not have a confidential character and that the information contained within them was not sensitive enough to warrant a confidentiality order. The Court also found that there was no real risk of harm to any party if the documents were disclosed.

As a result of the Court's findings, the application for a confidentiality order was dismissed. The Court held that it was not necessary in the interests of justice to grant the order, and that the disclosure of the documents would not cause harm to either party. The Court's decision was based on a careful consideration of the relevant legal principles and the facts of the case, and it provides useful guidance for parties seeking confidentiality orders in similar circumstances.

Orders