Poole v Australian Pacific Touring Pty Ltd
[2019] FCA 1459
•6 September 2019
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
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 period between now and the commencement of the trial and thus the adducing of evidence.
Ms Poole contends that no such orders are necessary, but consents to a lesser form of order, falling short of what APT contends is necessary. Ms Poole asserts that what is being sought is in substance a suppression order under s 37AF, which requires the threshold of being “necessary to prevent prejudice to the proper administration of justice” in s 37AG(1)(a) of the Federal Court of Australia Act 1976 (Cth) (Act) to be met.
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.
There was some dispute about the application of that test when it properly arises, but the effect of the authorities on that topic are unlikely to be controversial at the trial stage of the proceedings. Similarly, there is agreement that at least some of APT’s evidence and discovery material properly meets the description of being confidential and in need of protection from becoming public knowledge and thereby known to APT’s competitors.
There is a substantial hurdle to be met before commercially sensitive material, that would otherwise become public as part of open justice during the course of the trial, may be ordered to be the subject of a suppression or non-publication order. As that trial will not take place until sometime in 2020, the orders APT seeks now for the pre-trial period may apply to a wider range of material than would be sought to be covered by a suppression order in relation to trial evidence. This is not least because parts of the confidentiality in commercially sensitive information tends to dissipate over time, but also because only a subset of that material may be relevant and therefore become evidence, or the subject of evidence.
Based on the evidence and arguments presented at the hearing of this interlocutory application, I anticipate that there is at least a core component of the evidence and discovery material that would be harmful to APT if it were made publically available as an ordinary incident of the trial process, and that allowing that to take place would probably be prejudicial to the proper administration of justice. However, the requirements of Part VAA of the Act will need to be addressed and in particular the process described in s 37AH will need to be observed before that relief could be granted. It is to be expected that the parties will confer and endeavour to reach agreement so far as possible, so as to limit the scope of material requiring adjudication on the question of whether such an order should be made, and if so, the terms and the duration of such an order, in accordance with the case management obligations imposed by Part VB in general, and s 37N in particular.
Overview of this proceeding and the present interlocutory application
By an amended originating application and amended statement of claim, Ms Poole, via her subrogated insurer, Mitsui Sumitomo Insurance Company Ltd (including its authorised representative Mapfre Insurance Services Australia Pty Ltd) who is funding the bringing of this proceeding, seeks to have the contractual term by which the entire booking fee was forfeited declared void either:
(1)as being “unfair” within the meaning of s 24 of the Australian Consumer Law (contained in Schedule 2 to the Competition and Consumer Act 2010 (Cth)); or
(2)as being a penalty.
If Ms Poole is successful in having that contractual term declared void, she (and thus in reality her travel insurer, Mitsui who has apparently paid her travel insurance claim) seeks a refund or judgment in her favour for the entire booking fee, less a small amount that is not claimed for a reason that I do not need to consider for present purposes. It is common ground that this proceeding is in the nature of a test case, because such cancellation fees are prevalent for group tours of the kind that APT sells, with travel insurers generally being called upon to meet cancellation costs when that occurs.
An important – indeed, probably critical – part of the evidence that APT wishes to adduce at the trial seeks to justify the forfeiture of all or most of a booking fee by proving what might conveniently be described in general terms as details of its business model and contractual arrangements with its suppliers. It is not in dispute that certain parts of that evidence properly meet the description of being confidential material of the kind needing some degree of protection. However, with the benefit of access to unredacted copies of that material currently restricted by interim orders made on 12 June 2019, pending the resolution of this interlocutory dispute, Ms Poole challenges the ordering of a similar but ongoing confidentiality regime proposed by the respondents. She points to the inconsistency of some information being redacted at one point and not at another, seemingly unimportant information being redacted, and a degree of overreach in the scope of certain confidentiality claims. Those points of detail as to the scope of the material said to be confidential are generally conceded by APT, but are said by it not to affect the bulk or substance of the confidentiality claims made. I do not propose to adjudicate upon what is, or is not, in fact confidential material unless the parties, after negotiating in good faith, are unable to reach agreement.
APT asserts that access to the confidential material in its original unredacted form, and thus to the redacted information (subject to revision of the extent of the redaction referred to above), needs to be restricted to:
(1)Ms Poole’s solicitors and counsel, who it is contended should be prevented from disclosing the redacted information to anyone other than people who have also received that material under the orders sought;
(2)officers or employees of Mitsui and of Mapfre nominated by Ms Poole’s solicitors to APT’s solicitors who have signed a particular proposed written undertaking; and
(3)expert witnesses engaged by Ms Poole’s solicitors for the purposes of the proceeding, confined to such witnesses who have been nominated and who have signed that undertaking,
all of whom should be required to take reasonable steps to ensure that the redacted information is kept confidential.
APT contends that the regime that it proposes does not prevent any expert or any individual at Mitsui or Mapfre who provides instructions to Ms Poole’s lawyers from obtaining access to the redacted material, but seeks the imposition of a requirement that such persons provide a written undertaking before that access is given. It contends that the Court has the power to impose the confidentiality regime orders that it seeks under s 37P of the Act, concerning the power of the Court to give directions about practice and procedure in a civil proceeding, or if needs be, by way of suppression order under s 37AF.
The making of suppression or non-publication orders under s 37AF may only be contemplated in the mandatory context of the principle of open justice in s 37AE:
Safeguarding public interest in open justice
In deciding whether to make a suppression order or non‑publication order, the Court must take into account that a primary objective of the administration of justice is to safeguard the public interest in open justice.
It follows that s 37AF orders are directed to limiting access to information that would otherwise be in, or be at risk of being in, the public domain. As such, the usual impact of such orders is to limit what would otherwise be the lawful dissemination by anyone of information revealed in the course of proceedings conducted in open court.
Section 37AF is as follows:
(1)The Court may, by making a suppression order or non‑publication order on grounds permitted by this Part, prohibit or restrict the publication or other disclosure of:
(a)information tending to reveal the identity of or otherwise concerning any party to or witness in a proceeding before the Court or any person who is related to or otherwise associated with any party to or witness in a proceeding before the Court; or
(b)information that relates to a proceeding before the Court and is:
(i)information that comprises evidence or information about evidence; or
(ii)information obtained by the process of discovery; or
(iii)information produced under a subpoena; or
(iv)information lodged with or filed in the Court.
(2)The Court may make such orders as it thinks appropriate to give effect to an order under subsection (1).
In opposing the grant of the relief that APT seeks, Ms Poole asserts that:
(1)the burden of the signed undertaking sought by APT as a condition of access to the redacted information is unreasonable and disproportionate to the meagre risk of disclosure established by the evidence it relies upon, and impracticable to comply with both as to cost and effort, especially given the range of people whom Mitsui requires to have access to all the evidence filed and to be relied upon in the substantive proceeding (that purported requirement being proven by affidavit evidence as discussed further below);
(2)the substantive obligation which arises by virtue of the circumstances under which the redacted information has been obtained by anyone, being necessarily directly or indirectly associated with the litigation, is sufficient protection, in accordance with Hearne v Street [2008] HCA 36; 235 CLR 125, especially at [109]-[112]; and
(3)in the alternative to (2), if thought necessary by the Court, a lesser order would be consented to, being to the effect that the two affidavits in question in unredacted form, the affidavit of a solicitor for APT affirmed in support of this interlocutory application annexing copies of the unredacted affidavits, and certain of the discovered documents in unredacted form, be restricted to Ms Poole, her legal representatives, qualified experts, Mitsui, and Mapfre, all of whom can be ordered to ensure that the documents are kept confidential by any person to whom they are disclosed pursuant to that order and not be disclosed to any other person.
Ms Poole contends that the requirements of s 37AG, to be met prior to making an order under s 37AF, cannot be evaded by resort to s 37P. She further contends that the risk of disclosure has been asserted but not proven, such that the threshold of a suppression order being “necessary” has not been met. She therefore asserts that it has not been demonstrated that the limits on disclosure imposed by the obligation identified in Hearne v Street will not suffice.
Ms Poole adduced affidavit evidence at the hearing of this interlocutory application by the solicitor with carriage of this proceeding for her, as to the impracticability and substantial expense that will be incurred by complying with the written undertaking regime that APT seeks. That affidavit relevantly deposes to the following:
(1)at [11] as to who at Mitsui the solicitor deponent is “required” to provide documents about this proceeding, necessarily including the redacted information in the absence of any restriction existing or otherwise imposed, under the heading “Mrs Poole’s insurers and my dealings with them”:
As to the identity of Mrs Poole’s insurers and my dealings with them:
(a) the insurer is Mitsui Sumitomo Insurance Company Ltd (“Mitsui”);
(b)the authorised representative of Mitsui is Mapfre Insurance Services Australia Pty Ltd (“Mapfre”);
(c)I am currently required to provide all documents received in relation to this matter (including all pleadings, interlocutory applications, submissions, orders, evidence, advices, opinions, discovery and correspondence) to each person with the following roles at Mapfre and Mitsui respectively from time to time:
(i)Head of Implementation and Operations, Mapfre - this role is presently filled by Victor Quiroz, who is based in Sydney;
(ii)Head of Legal Affairs, Mapfre - this role is presently filled by Xavier de Ramon Blesa, who is based in Madrid;
(iii)General Manager, Mapfre - this role is presently filled by Raphael Bandeira, who is based in Sydney;
(iv)Chief Technical Manager, Oceania, Mitsui - this role is presently filled by Hajime Takeda who is based in Sydney;
(v)Claims Manager, Mitsui - this role is presently filled by Nami Irie, who is based in Sydney;
(vi)Claims Adviser, Mitsui - this role is presently filled by Duminda Gamage, who is based in Sydney; and
(vii) Assistant General Manager, Mitsui - this role is presently filled by Seiji Nakamura, who is based in Sydney but may be based in Japan next year;
(d) from time to time the persons fulfilling the above roles may change;
(e)when on leave, the persons fulfilling the above roles will delegate their responsibilities to colleagues within the respective companies if matters need to be actioned in their absence.
(2)after evidence at [13] and [14] as to the lack of competition between Mapfre and Mitsui on the one hand, and APT on the other, in relation to Mapfre and Mitsui information technology (IT) staff (at [15]-[16]):
IT staff at each of Mapfre and Mitsui have rights of access to documents, subject to internal controls to ensure confidentiality.
The Mapfre and Mitsui representatives I have contact with, being those identified in paragraph 11 (c) above, do not know the identity of all IT staff at their respective companies and expressed concerns to me that they would not be able to identify all such staff nor, as a result, obtain a signed Undertaking from them.
(3)at [17] and [18], under the heading “English and ad hoc translation of documents”:
English is not the native language of either the Mapfre representatives whom I have identified above (whose native language is Spanish) or three of the Mitsui representatives whom I have identified above (whose native language is Japanese).
In Mapfre and Mitsui, from time to time the above representatives will obtain translations of particular documents or extracts of particular documents from colleagues within their company. Such translations occur on an informal basis and depend upon which colleagues are available at any particular time.
(4)at [19]-[23] under the heading “Internal auditing and other reporting at Mapfre”:
Mapfre has internal audits, including internal audits required from time to time by Mitsui as underwriter.
Internal auditors at Mapfre scrutinise all work being performed and review underlying documents such as discovery and evidence.
Mapfre utilises external compliance auditors who would require access to information relating to these proceedings.
On a day-to-day basis representatives from Mapfre’s technical team (comprising two persons based in Sydney plus further employees based in Madrid who are involved in the decision-making process) and a claims department (usually comprising anywhere between 2-5 persons based in Madrid) conduct reviews of matters and may require access to underlying documents such as discovery and evidence.
The Board of directors for Mapfre requires visibility with respect to Mapfre’s activities. The Board recently appointed two new members who are based in Spain and Indonesia. The Board will shortly utilise a chair who will be based in the United Kingdom. Board members may require access to underlying documents such as discovery and evidence.
(5)at [24] under the heading “Internal reporting requirements at Mitsui”:
Mitsui has complex internal reporting requirements which involve at least four jurisdictions – Australia, Singapore, Japan and Spain. Internal reporting from Australia goes through Singapore to Japan and involves multiple individuals. Reinsurer reporting from Australia goes through Spain.
It is apparent that at the heart of the present dispute are divergent views as to the scope and effectiveness of the “substantive obligation” authoritatively stated in Hearne v Street, commonly still referred somewhat inaccurately, but conveniently, as the “implied undertaking” or the “Harman undertaking” (the latter derived from the seminal decision on this topic in Harman v Secretary of State for Home Department [1983] 1 AC 280). In my view, both parties have not fully grappled with the scope of that obligation as detailed below. APT may be seen to understate the stringent restrictions the obligation imposes on distribution and use of the material in question beyond the purposes of this proceeding. Correspondingly, the effectiveness of the obligation asserted by Ms Poole is only achieved if its scope is strictly observed, an outcome that may be aided by supplementary orders of the Court, as described further below.
The plurality judgment in Hearne v Street (Hayne, Heydon and Crennan JJ, with whom Gleeson CJ relevantly agreed at [3], and with whom Kirby J eventually wholly agreed at [60]) included the following:
(1)at [96], a restatement of the background principles (footnotes omitted):
Where one party to litigation is compelled, either by reason of a rule of court, or by reason of a specific order of the court, or otherwise, to disclose documents or information, the party obtaining the disclosure cannot, without the leave of the court, use it for any purpose other than that for which it was given unless it is received into evidence. The types of material disclosed to which this principle applies include documents inspected after discovery, answers to interrogatories, documents produced on subpoena, documents produced for the purposes of taxation of costs, documents produced pursuant to a direction from an arbitrator, documents seized pursuant to an Anton Piller order, witness statements served pursuant to a judicial direction and affidavits. The appellants did not dispute the existence of this principle, and in particular did not dispute its potential application to the affidavit of Mrs Hesse and the witness statement of Dr Tonin.
(2)at [102]-[103], the problems in principle facing the appellants in that case:
The first is that to call the obligation of the litigant who has received material generated by litigious processes one which arises from an “implied undertaking” is misleading unless it is understood that in truth it is an obligation of law arising from circumstances in which the material was generated and received.
The second is that that obligation would be of very limited protection if it were only personal to the litigant, which is why it is often said to be extended also to a litigant’s solicitor, industrial advocate or barrister, and also to third parties like a shorthand writer or court officer. For that reason the authorities recognise a broader principle by which persons who, knowing that material was generated in legal proceedings, use it for purposes other than those of the proceedings are in contempt of court.
(3)in the first part of [105], explaining why the first problem in principle, of relying upon the obligation as only an “implied undertaking” given to a party to proceedings, stood in the way of the appeal succeeding upon the basis of the appellants not being such a party (omitting the more detailed discussion about discovery and omitting footnotes):
Originally the restriction on the use of documents generated by litigious processes depended on an express undertaking. Then in Williams v Prince of Wales Life, etc, Co [(1857) 23 Beav 338 at 340 [53 ER 133]], Sir John Romilly MR, while requiring an express undertaking, put the matter in terms of legal rights: “[I]t is not the right of a Plaintiff, who has obtained access to the Defendants’ papers, to make them public.” The following year the protection was not said to rest on an express undertaking, but on a “rule” that “where documents have been produced in obedience to an order of this Court, the Court has a right to say to the person who has obtained their production: ‘Those documents shall never be used by you except under the authority of the Court’.” In Alterskye v Scott [[1948] 1 All ER 469 at 470-471], although Jenkins J referred to a concession by counsel that his client obtained discovery on an “implied undertaking”, in the operative part of his reasoning he did not analyse the matter in terms of “undertaking”, either express or implied, but in terms of an “implied obligation not to make an improper use of the documents.” And other judges have preferred to the language of “implied undertaking” the words “implied obligation” or “obligation” or “duty”.
(4)in the first part of [109], explaining how third parties (that is to say, non-parties to the litigation) are subject to the same substantive obligation and at [112] as to how that obligation is enlivened:
Thus Hobhouse J said: “[A]ny person who knowingly … does acts which are inconsistent with the undertaking is himself in contempt and liable to sanctions”. In Watkins v A J Wright (Electrical) Ltd [[1996] 3 All ER 31 at 41] Blackburne J said:
“I cannot accept the submission that ignorance of the implied undertaking provides a person with a defence to proceedings for contempt arising out of his breach of the implied undertaking. As is well known, the implied undertaking arises by implication of law on the giving of discovery in the course of a civil action where discovery is required to be given.”
He also rejected a submission that third parties could not be bound by the obligations created by the “implied undertaking”. He said: “I see no basis for confining the scope of the undertaking to those who are parties to the action, to whom discovery has been given, and to the solicitor or solicitors on the record.” As noted above, he held that a person engaged in day-to-day conduct of litigation on behalf of a litigant was bound – an expression not irrelevant to Messrs Hearne and Tierney, who were certainly engaged in day-to-day conduct of a struggle which included but was wider than litigation, and included an attempt to nullify the litigation by legislative means.
…
There is no support in the authorities for the idea that knowledge of anything more than the origins of the material in legal proceedings need be established. In particular, there is no support for the idea that knowledge of the “implied undertaking” and its consequences should be proved, for that would be to require proof of knowledge of the law, and generally ignorance of the law does not prevent liability arising.
(5)at [116], as to why, in some cases, express undertakings may properly be required in addition to, but not in substitution for, the substantive obligation commonly known as the implied undertaking, and at [117] as to the ability of a Court to modify that obligation by express terms:
… The point of insisting on an express undertaking, commonly employed in relation to documents which it is particularly desired to keep secret, is 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 proceedings. It does not follow that the obligation in question does not exist in more routine cases without the need for an express undertaking. If the appellants’ stance were sound, it would be necessary for litigants, in order to obtain protection partially, but not completely, as effective as that given by the approach urged by the residents, to seek express undertakings to the court from all servants and agents of a party, from all potential lay and expert witnesses, and from all other persons into whose hands documents generated in the proceedings may come. At present this happens in exceptional cases for particular reasons. If it were necessary for that general practice to develop, it would be extremely cumbersome, and extremely wasteful of time, energy and money.
… While legal obligations are not usually modified by courts to suit the interests of particular parties, it can happen …
(6)at [119], as to why the majority decision in the New South Wales Court of Appeal equating the obligation imposed by law to an express undertaking should not be regarded as harsh:
The appellants submitted that the majority approach was harsh, in that it meant that any person into whose hands discovered documents came and who used them for purposes extraneous to the proceedings could be guilty of contempt on proof only of knowledge on the part of that person that the documents originated in legal proceedings, even if that person had “no idea of the legal significance of that fact”. But a person who behaved in that way in relation to documents the subject of an express undertaking could be liable for contempt, even though that person was equally ignorant of the legal significance of the express undertaking.
The important thing to note from the extracts above is that, ordinarily, private information furnished by one party to litigation to another party pursuant to a court’s processes, whether by the operation of the rules of a court or by orders, is not by that process alone in the public domain. As such, it ordinarily does not require suppression or non-publication orders because of the strict obligation of non-disclosure of such information except for purposes directly associated with the conduct of the litigation. It is a common enough practice of this Court to enhance that obligation by way of confidentiality regimes, which may operate to prevent those ordinarily able to obtain access to material provided in the course of litigation, especially, but not only, for trade rivals who cannot realistically be expected to forget what they have been permitted to see: Mobil Oil Australia Ltd v Guina Developments Pty Ltd [1996] 2 VR 34 at 38. None of this ordinarily entails resort to suppression or non-publication orders, which are usually only required at a time proximate to the point at which information will be adduced in evidence or otherwise made public. It is public access, as an ordinary incidence of open justice, which is sought to be limited by a suppression or non-publication order. That is, a curtailment of the principle of open justice is usually only said to be needed at the point in time at which that openness is going to manifest, or in preparation for that taking place.
The real problem at this stage of the proceeding lies in the extent of the proposed further disclosure of material furnished by APT to Ms Poole pursuant to procedural orders made by the Court to file and serve evidence and to give discovery. What is wholly absent from the affidavit relied upon by Ms Poole, parts of which are reproduced at [19] above, is any clear explanation for why the wide range of persons who are proposed to have access to some or all of the documents in the case would be entitled to be given access to any of the evidentiary or related material served or produced by APT in the course of this litigation, whether that be by affidavit, or discovery, or otherwise. There is, of course, no such problem with pleadings, which are ordinarily accessible to non-parties.
There is nothing in the evidence adduced by Ms Poole to suggest that such access would be clearly and expressly confined to the purposes for which it was given by APT, namely for purposes directly connected to this litigation. Relevantly, the mere fact that a person at Mitsui or Mapfre wants to, or even considers he or she needs to, have access to such documents does not provide a sufficient basis for that taking place.
It needs to be made abundantly clear that no-one at Mitsui or Mapfre, or indeed anyone else associated with Ms Poole or her lawyers, has any entitlement to see any of the evidence or discovery material except for purposes associated with this litigation, prior to and in the event of it becoming public in the course of proceedings, without the express leave of the Court. Persons at Mitsui or Mapfre are not, for example, entitled to have access to that material for any purpose associated with the conduct of their insurance business, or with any other litigation. Yet the wide range of persons who apparently “require” such access seems far removed from any evident association with the purposes of this litigation. Many of them, by their job titles, appear to be in operational roles, for which the evidentiary and discovery material may well be interesting and useful, but that is the antithesis of what is permitted.
The affidavit does not contain any explicit reference to, or identification of, a person who is giving instructions, or from whom instructions will be sought, for the purposes of this proceeding. Any such access that is given or obtained, let alone any use of that material, in both redacted and unredacted form, except for a purpose directly associated with these proceedings, may constitute a contempt of court. Such a contempt is taken seriously by this Court if it is not purged, and in serious cases can even result in imprisonment. The situation will be different once any information is adduced in evidence, unless it is made the subject of a suppression or non-publication order.
In the above circumstances, I am not willing to infer, as I was asked to do by senior counsel for Ms Poole, that on the evidence before me the proposed disclosure would be limited to those entitled to access documents in accordance with the obligation identified in Hearne v Street. I hasten to add that the concern I have expressed is not directed at all to the solicitors or counsel for Ms Poole, whom I have every confidence will strictly and conscientiously comply with their legal obligations, but rather to the wider pool of people at Mitsui and Mapfre who seem to think that they have a right to access this evidentiary and discovery material, when in fact they may have no such right, and as a consequence even less understanding of the obligation imposed upon them.
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.
The best way forward on the issue of whether any express order is needed, and, if so, its terms, is sensible negotiation in good faith between the two legal teams, so as to limit the need for any further adjudication to the matters truly in dispute.
Orders
The parties are to provide either agreed or competing draft orders within 28 days of the date of this judgment, or such further time as may be allowed. The draft orders will also need to address orders 1 and 3 made on 12 June 2019, and to address the evidence read at the hearing of the interlocutory application.
As APT has substantially succeeded in achieving the outcome sought of maintaining a regime of confidentiality over the redacted information (subject to revision of the extent of the redaction), Ms Poole should pay the costs of and incidental to this interlocutory application.
I certify that the preceding thirty-five (35) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Bromwich. Associate:
Dated: 6 September 2019
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