Re Japara Holdings Pty Ltd

[2010] VSC 361

IN THE SUPREME COURT OF VICTORIA Not Restricted

AT MELBOURNE

COMMERCIAL AND EQUITY DIVISION

COMMERCIAL COURT

LIST E
No. 3258 of 2010

IN THE MATTER of JAPARA HOLDINGS PTY LTD (ACN 110 486 889)

JAPARA HOLDINGS PTY LTD (ACN 110 486 889) & ORS (according to the schedule attached)	Plaintiffs
v
ARNAN LAWRENCE ROUSE & ANOR (according to the schedule attached)	Defendants

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JUDGE:	Davies J
WHERE HELD:	Melbourne
DATE OF HEARING:	15 -16 July 2010
DATE OF RULING:	16 July 2010 (delivered ex tempore, revised 19 August 2010)
CASE MAY BE CITED AS:	Re Japara Holdings Pty Ltd
MEDIUM NEUTRAL CITATION:	[2010] VSC 361

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PRACTICE & PROCEDURE – Proceedings – Inspection of documents – Confidentiality – Basis – Whether affidavits and exhibits  should be made confidential – Where Court file already inspected – Where material admitted into evidence – Supreme Court (General Civil Procedure) Rules 2005 r 28.05.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr N. O’Bryan QC with Mr C. Shaw	Norton Rose Australia
For the Defendants	Mr I. Waller SC with Mr S. Hibble	Diakou Faigen Lawyers

HER HONOUR:

1. The plaintiffs seek an order pursuant to r 28.05(2)(a) of the Supreme Court (General Civil Procedure) Rules 2005 (Supreme Court Rules) that certain parts of affidavits filed in this proceeding, and exhibits to those affidavits, remain confidential. The order is sought on the basis that the material is confidential and that an order is required to preclude persons who are not parties to the proceeding from obtaining that material.

1. In Victoria, unlike other jurisdictions, any person may obtain a copy of any document in a proceeding on payment of a proper fee. This is provided for in r 28.05(1) of the Supreme Court Rules. That right may be curtailed if the Court orders that a document remain confidential or, in the absence of such an order, if the Prothonotary is of the opinion that the document ought to remain confidential to the parties. The plaintiffs submitted that the order is necessary as the Court documents are available for public inspection, subject to the Prothonotary’s discretion.

1. The plaintiffs identified two categories of material of which, it was submitted, were confidential and should remain confidential. 

1. Those two categories are:

(a) material relating to the sale process for the interests in a group of companies and trusts (together called “Japara”); and

(b) material relating to refinancing and financing matters concerning Japara.

1. In support of the application, the plaintiffs relied on the fact that the parts of the affidavits and exhibits over which they seek the order, apart from certain exceptions, have not been relied on or put into evidence, arguing that the interests of open justice do not require that a person other than the parties should have access to material that is not in evidence.  Reference was made to the recent High Court decision in Hogan v Australian Crime Commission,[1] in which the High Court stated that Justice Emmett at first instance was correct to make the distinction between material on the Court file not admitted into evidence and material that had been in the context of the Federal Court Rules regulating a non-party’s right to inspect the Court file.

   [1](2010) 267 ALR 12.

1. The Federal Court Rules are very different however to the Victorian Supreme Court Rules with respect to the entitlement of a person who is not a party to the proceeding to inspect the Court files.  In that jurisdiction, a non party is precluded from inspecting certain categories of documents on the Court file, including affidavits, without the leave of the Court.  That is not the position in Victoria.  The position in Victoria is that there is such an entitlement.  The leave of the Court is not required unless the Court first has made an order that documents remain confidential.

1. The question for the Court to determine, is whether the material over which the order is sought is of such nature that an order for confidentiality to remain, should be made.  That of course requires the Court to be satisfied that the material is confidential in the first instance.

1. Much of the material in respect of which the order is sought is contained in affidavits that have been on the Court file for some time.  Moreover, that material has been the subject of inspection and copying by persons who are not parties to the proceeding.  Notably it appears that the material has been inspected and copied by media interests.  Handed to me today were two media reports, one published on 9 March 2010, the other on 17 June 2010, in which there is reporting on the present dispute and the sale process.  The report of 17 June 2010 quotes extracts from and makes reference to several of the affidavits on the Court file.  Counsel for the plaintiffs informed the Court that apart from one affidavit which was filed in Court yesterday, he could not say that there were no affidavits that had not been inspected by persons who are not parties to this proceeding.  It was submitted however that the mere fact that people have had access to the Court file does not mean that the content of those documents is in the public domain.  Nor does it mean that the content of those affidavits do not continue to contain information that is confidential. 

1. It is apparent that at least some of the material contains personal and commercial information that the parties or, at least the plaintiff, may regard as confidential. However, the fact that affidavits have been inspected and copied means that this has ceased to be confidential to the parties - there has been disclosure to the public. In other words an order under r 28.05(2)(a) is directed to ensuring that that confidentiality, where properly claimed, is preserved. Here the horse has already bolted in that insofar as the material may have been confidential, such confidentiality has been lost. This applies to all affidavits other than the one affidavit which it appears could not have been the subject of a request for inspection and copied.

1. There is another reason why I reject the application with respect to material contained in those affidavits. It is one thing to point to content which it is claimed is confidential. But for the purposes of r 28.05(2) the fact that it is confidential is not in my view sufficient to justify the Court curtailing what is the entitlement of a person who is not a party to the proceeding to inspect and obtain a copy of any document as provided for in r 28.05(1). It is incumbent on the party seeking an order to do more than simply show that what is contained in documents on the Court file is confidential. It is necessary to go further and demonstrate that the party would be seriously compromised or adversely affected if confidentiality was not retained.[2]  There is no evidence before the Court to that effect, although counsel for the plaintiffs made the submission that the disclosure of the material in respect of which the order is sought has the potential to cause damage to the plaintiffs.

   [2]Ibif [38], [41]; Australian Securities & Investments Commission v Rich & Ors (2001) 51 NSWLR 643.

1. I am not prepared to conclude simply from the material itself that the plaintiffs would be seriously compromised or adversely affected if the relevant material was not protected from inspection by members of the public.  As the High Court stated in Hogan v Australian Crime Commission,[3] it is not sufficient simply to claim confidentiality and rely upon assumptions about how the person may be adversely effected by disclosure, without an evidentiary basis for that claim. 

   [3](2010) 267 ALR 12 [43].

1. Counsel for the plaintiffs notwithstanding, pursued the application in respect of parts of the affidavit of Arnan Lawrence Rouse, sworn 9 July 2010. In particular notwithstanding, that it is apparent that the Court file has been searched by non-parties since the filing of that affidavit. For the reasons I have expressed above, even if the content of that affidavit is not one that has been inspected by a non-party, nonetheless the basis for an order under r 28.05(2)(a) has not been made out because the plaintiff's have not demonstrated that it would be damaging to them if that material was available to be inspected.

1. There was one affidavit which the parties are reasonably confident could not have been the subject of a request for inspection.  That is the affidavit of Arnan Lawrence Rouse, sworn on 14 July 2010.  The order was sought over two paragraphs in that affidavit as well as one exhibit.  One of the paragraphs in respect of which the order is sought identifies the exhibit.  The second paragraph refers to information that is contained in that exhibit.  In my view an order should not be made with respect to either of those paragraphs.  It is not apparent by reference to either of those paragraphs how it is that the plaintiffs would be seriously compromised if a member of the public was able to read them. 

1. The exhibit is in a different position.  Senior counsel for the defendants supported the making of an order with respect to that exhibit, which is an information memorandum prepared for the purpose of the sale of the interests in Japara.  It is plain on the face of the document itself that the document is inherently confidential and has been supplied to potential purchasers subject to strict conditions about the retention of confidentiality.  I accept that at this stage there is some basis for the Court concluding that it is appropriate that confidentiality remain with respect to the content of that document.

1. There is insufficient evidence before me however, to conclude that an order which would have the effect of protecting that document from being able to be accessed by non-parties to the proceeding should be a permanent order.  In my view, on the state of the evidence as it is presently before me, an order should be made for a limited time only, with leave reserved to the parties to pursue a further application if they consider it appropriate in the future.

1. Accordingly the only order that I will make today is an order that exhibit ALR70 to the affidavit of Arnan Lawrence Rouse, sworn on 14 July 2010, remain confidential until 5:00pm on 12 August 2010 or until further order.  Otherwise the application is dismissed. 

SCHEDULE OF PARTIES

S CI 2010 3258
BETWEEN:
JAPARA HOLDINGS PTY LTD (ACN 110 466 889)	Firstnamed Plaintiff
ASHENS PROPERTIES PTH LTD (ACN 007 159 917)	Secondnamed Plaintiff
WANGANUI PTY LTD (ACN 005 198 738)	Thirdnamed Plaintiff
SAMRAJ PTY LTD (ACN 005 509 213)	Fourthnamed Plaintiff
FINMARE PTY LTD (ACN 005 709 455)	Fifthnamed Plaintiff
- and -
ARNAN LAWRENCE ROUSE	Firstnamed Defendant
NVS OASIS PTY LTD (ACN 110 045 353)	Secondnamed Defendant

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