Poole v Australian Pacific Touring Pty Ltd

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FEDERAL COURT OF AUSTRALIA

Poole v Australian Pacific Touring Pty Ltd [2019] FCA 1459

File number: NSD 1387 of 2017
Judge: BROMWICH J
Date of judgment: 6 September 2019
Catchwords: PRACTICE AND PROCEDURE – where respondent asserts that documents contain confidential commercial information – whether necessary for anyone beyond the applicant’s legal representatives to sign an undertaking prior to accessing the information – the nature of the obligation identified in Hearne v Street [2008] HCA 36; 235 CLR 125 – whether suppression or non-publication orders under s 37AF of the Federal Court of Australia Act 1976 (Cth) are necessary when the Hearne v Street obligation applies  
Legislation:

Australian Consumer Law, contained in Schedule 2 to the Competition and Consumer Act 2010 (Cth), s 24

Federal Court of Australia Act 1976 (Cth) ss 37AF, 37AG(1)(a), 37AH, 37N, 37P

Cases cited:

Harman v Secretary of State for Home Department [1983] 1 AC 280

Hearne v Street [2008] HCA 36; 235 CLR 125

Mobil Oil Australia Ltd v Guina Developments Pty Ltd [1996] 2 VR 34

Poole v Australian Pacific Touring Pty Ltd [2017] FCA 424

Date of hearing: 29 August 2019
Registry: New South Wales
Division: General Division
National Practice Area: Commercial and Corporations
Sub-area: Regulator and Consumer Protection
Category: Catchwords
Number of paragraphs: 35
Counsel for the Applicant: Mr J Potts SC with Mr C Conde
Solicitor for the Applicant: James Tuite & Associates Lawyers
Counsel for the Respondent: Mr G Harris QC
Solicitor for the Respondent: Macpherson Kelley
Table of Corrections
9 September 2019 “apparently” deleted before the word “divergent” in [20].

ORDERS

NSD 1387 of 2017
BETWEEN:

KIMBERLEY JANE POOLE

Applicant
AND:

AUSTRALIAN PACIFIC TOURING PTY LTD

Respondent

JUDGE:

BROMWICH J

DATE OF ORDER:

6 SEPTEMBER 2019

THE COURT ORDERS THAT:

1.The parties furnish, by email to the associate to Justice Bromwich, agreed or competing orders arising from the reasons for judgment within 28 days, or such further time as may be allowed, including addressing orders 1 and 3 made on 12 June 2019, and addressing the evidence read at the hearing of the interlocutory application.

2.The applicant pay the respondent’s costs of and incidental to the interlocutory application dated 5 July 2019.

Note:   Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.


REASONS FOR JUDGMENT

BROMWICH J:

Introduction

  1. This is an adjudication of an interlocutory application brought by the respondent in this proceeding, Australian Pacific Touring Pty Ltd (APT).  APT seeks orders to limit the disclosure of asserted confidential components of commercially-related evidence that it has filed and served for its defence of a case brought by the applicant, Ms Kimberley Poole, and also additional material that it has discovered or will discover to Ms Poole.  It seeks to do that by having this Court impose a requirement of written undertakings before access is given to that material to anyone beyond Ms Poole’s legal team.  The period for which the relief is now sought is for the…

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Details
Case
[2019] FCA 1459
Decision Date

CaseChat Overview and Summary

In Poole v Australian Pacific Touring Pty Ltd, the Federal Court addressed a dispute between Ms Poole, a traveller, and Australian Pacific Touring Pty Ltd (APT), a travel service provider, over a cancelled cruise booking. The case involved complex issues of confidentiality and disclosure of commercial information, particularly regarding materials shared with international entities, Mitsui and Mapfre, involved in funding Ms Poole's legal case. The Court was tasked with determining whether suppression or non-publication orders under the Federal Court of Australia Act 1976 were necessary to protect confidential commercial information and whether any such orders should be broader than the obligations imposed by Hearne v Street. The Court also needed to consider the implications of the disclosure to parties outside Australia and the necessity of a confidentiality regime to ensure compliance with legal obligations.

The central legal issue was whether a suppression or non-publication order was necessary to prevent prejudice to the administration of justice, particularly concerning the disclosure of confidential commercial information to international parties. The Court examined the obligations under Hearne v Street and whether these could be sufficiently enforced without additional court orders. It also deliberated on the potential for prejudice to the proper administration of justice if the information were to be improperly disclosed. The Court had to balance the need for protecting confidential information against the practicalities of enforcing such protections in an international context.

The Court concluded that while a suppression or non-publication order might not be necessary at that stage, a limited confidentiality regime could enhance the legal obligation of non-disclosure imposed on recipients of the evidence. The Court recognised the challenges of enforcing these obligations outside Australia and stressed the importance of ensuring that any person receiving the confidential information understood the gravity of the obligation. The Court did not see a need for express orders regarding Australian legal and expert personnel involved in the case, but it did consider it appropriate to require an express undertaking for anyone beyond the immediate legal team to be given access to the confidential material. The Court provided guidance for the parties to negotiate and submit competing orders addressing the interim orders and the evidence presented.

The Court ordered that the parties submit agreed or competing orders within 28 days, addressing the interim orders made on 12 June 2019 and the evidence presented. Additionally, the applicant was directed to pay the respondent's costs of and incidental to the interlocutory application dated 5 July 2019. The Court's decision aimed to strike a balance between protecting confidential information and ensuring that the legal obligations were enforceable in practice.

Orders

Orders of the court

1. The parties furnish, by email to the associate to Justice Bromwich, agreed or competing orders arising from the reasons for judgment within 28 days, or such further time as may be allowed, including addressing orders 1 and 3 made on 12 June 2019, and addressing the evidence read at the hearing of the interlocutory application.

2. The applicant pay the respondent’s costs of and incidental to the interlocutory application dated 5 July 2019.

Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

Background

Background to the litigation

For the reasons that follow, I do not consider that a suppression or non-publication order is needed at this stage of the proceeding. I do, however, consider that there may yet be a need for a limited confidentiality regime to be put in place as an enhancement of the legal obligation imposed on the recipient of evidence and other material furnished pursuant to the processes of the Court. The reasons for the conclusions that I have reached are important, because I am of the view that Ms Poole is not at liberty to furnish copies of the evidence and discovery material served by APT to the extent indicated in the affidavit evidence adduced by her.Background The general nature of the facts underlying the case that Ms Poole brings were sufficiently summarised for present purposes in a prior preliminary discovery judgment, Poole v Australian Pacific Touring Pty Ltd [2017] FCA 424, at [7] and part of [12]:On 30 September 2015, Ms Poole booked a “21 Day Magnificent Europe River Cruise” package for herself and her husband through Flight Centre Travel Group Limited, which acted as agent for APT, the travel service provider (the Booking). An invoice for the Booking was issued by Flight Centre on 3 October 2015. The invoice included details such as a total price of $30,030 for the package, a departure and return date in May 2016, and an itinerary detailing activities over 21 days in Paris, Amsterdam, Rüdesheim, Miltenberg, Bamberg, Nuremberg, Regensburg, Passau, Melk, Vienna, Budapest, and Prague. The invoice also recommended that Ms Poole purchase insurance for the trip, including cancellation cover, at a cost of $1,210 through an entity identified as Cover-More. It is apparent that travel insurance was obtained as an insurer is funding Ms Poole’s case.…On 28 April 2016, Ms Poole’s husband was admitted to St Vincent’s Hospital in Sydney with an acute lung infection and was certified by doctors there as unfit to travel until 12 May 2016. On the same date, Ms Poole instructed Flight Centre to cancel the Booking with APT due to her husband’s ill-health and inability to travel. By email on 28 April 2016, Flight Centre advised that the Booking had been cancelled. Shortly thereafter, Flight Centre provided Ms Poole with a “Cancellation of Booking” form. That form stipulated that, in accordance with APT’s cancellation policy, Ms Poole would not be entitled to a refund of any part of the Booking price of $31,620 paid. …The need for a suppression or non-publication order at or proximate to the trial I understand that APT is likely to seek suppression orders at or prior to the trial over parts of the evidence to be adduced, including discovery material that might be tendered or otherwise relied upon by Ms Poole, that can be demonstrated to meet the threshold of being “necessary” in s 37AG(1) of the Act, specifically in paragraph (a). That is, “the order is necessary to prevent prejudice to the proper administration of justice”. As an initial observation, such an order is unlikely to be necessary if the protection sought is able to be provided by other means.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

The problem does not lie with the Australian lawyers running this case for Ms Poole, nor with any professional person in Australia to be retained to give an expert opinion and perhaps furnish expert evidence, but with the apparent, possibly innocent enough, demands or requirements of Mitsui and/or Mapfre, which are not described in a way that reflects an understanding of what they are not entitled to see before the material is disclosed publically by the adducing of evidence. The problem becomes more acute when the person seeking or expecting access is in a different country, with a different legal system and set of obligations and norms, and speaks a different language. Conclusion I have therefore determined that the solution to this dispute lies in an order being made that represents a compromise between the regime sought by APT and the order that Ms Poole was prepared to consent to despite contending that no such order was necessary. I do not propose to endeavour to draft the appropriate order. However, I will adjudicate upon competing orders in the event that such an order is considered necessary by APT and agreement cannot be reached, noting that there still remains negotiation to be had prior to the trial as to whether a suppression order should be made at, or immediately prior to, the trial and, if so, its terms. There is also the matter of what, if anything, should replace the interim orders made on 12 June 2019, or whether those orders should simply be discharged. By way of guidance, I cannot presently see that there is any need for any express order to be made in relation to the solicitors, counsel or any Australian expert retained for the purposes of this litigation, nor for anyone directly tasked with assisting those persons by way of clerical, secretarial, information technology or related support. They are well enough covered by the legal obligation of non-disclosure except for the proper purposes of this litigation, imposed by law. I have not been able to reach a concluded view as to what orders are needed to enhance the legal non-disclosure obligation in relation to the person, or persons, who are tasked with providing instructions on behalf of Mitsui to Ms Poole’s lawyers for the purposes of the proceeding. That is because I do not know who is giving those instructions, and whether that is taking place in Australia or from further afield. If such a person is overseas, I would see more need for an express undertaking to bring “explicitly home to the minds of those giving it how important it is that the documents only be used for the purpose of” this proceeding: Hearne v Street at [116], reproduced above at [21(5)]. I do however consider it appropriate that an express undertaking be provided to APT, and thereby to the Court, for anyone to be given access falling beyond that identified pool or category of persons, most particularly beyond the person or persons who, for example, truly need access to assist in providing those instructions. That is largely because of the real risk I see in the obligation not being properly understood and thereby observed outside Australia. It may be, for example, that more than one person at Mitsui or Mapfre in fact needs to see the redacted material in order to facilitate the giving of instructions, but there is nothing in the evidence thus far adduced to convince me that is so.

Ratio Decidendi

Legal Principle Established

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