Steelforce Trading Pty Ltd v Parliamentary Secretary to the Minister for Industry, Innovation and Science (No 2)

[2018] FCAFC 47

FEDERAL COURT OF AUSTRALIA

Steelforce Trading Pty Ltd v Parliamentary Secretary to the Minister for Industry, Innovation and Science (No 2) [2018] FCAFC 47

Appeal from:	Steelforce Trading Pty Ltd v Parliamentary Secretary to the Minister for Industry, Innovation and Science [2016] FCA 1309
File number(s):	ACD 95 of 2016
Judge(s):	PERRAM, PAGONE AND BROMWICH JJ
Date of judgment:	27 March 2018
Catchwords:	PRACTICE AND PROCEDURE – application for suppression order – whether necessary to prevent prejudice to proper administration of justice – where suppression order sought for non-publication of commercially sensitive information
Legislation:	Federal Court of Australia Act 1976 (Cth) s 37AF
Cases cited:	Motorola Solutions, Inc. v Hytera Communications Corporation Ltd (No 2) [2018] FCA 17
Date of hearing:	Determined on the papers
Registry:	New South Wales
Division:	General Division
National Practice Area:	Administrative and Constitutional Law and Human Rights
Category:	Catchwords
Number of paragraphs:	5
Solicitor for the Appellants:	Moulis Legal
Solicitor for the Respondents:	Clayton Utz

ORDER

ACD 95 of 2016

BETWEEN:

STEELFORCE TRADING PTY LTD ACN 110 146 515

First Appellant

DALIAN STEELFORCE HI-TECH CO LTD

Second Appellant

AND:

PARLIAMENTARY SECRETARY TO THE MINISTER FOR INDUSTRY INNOVATION AND SCIENCE

First Respondent

COMMISSIONER OF THE ANTI-DUMPING COMMISSION

Second Respondent

JUDGES:	PERRAM, PAGONE AND BROMWICH JJ
DATE OF ORDER:	21 FEBRUARY 2018

THE COURT ORDERS THAT:

1.Pursuant to section 37AF of the Federal Court of Australia Act 1976 (Cth), on the basis of the grounds specified in section 37AG(1)(a), a suppression order be made prohibiting the publication or other disclosure of the following sections of the Court’s reasons dated 19 February 2018 (the Reasons):

(a)the numbers in line 4 and in each of the three dot points in paragraph 50 of the Reasons;

(b)the numbers in lines 2 and 4 of paragraph 51 of the Reasons;

(c)the numbers in line 2 of paragraph 88 of the Reasons;

(d)the numbers in lines 2 and 3 of paragraph 89 of the Reasons;

(e)the numbers in line 4 of paragraph 90 of the Reasons.

REASONS FOR JUDGMENT

THE COURT:

1. On 19 February 2018 the Full Court published its reasoning for upholding an appeal in an anti-dumping case: Steelforce Trading Pty Ltd v Parliamentary Secretary to the Minister for Industry, Innovation and Science [2018] FCAFC 20. The version of that judgment which was published contained sensitive trade information and the reasons were embargoed by order 4 for a period of 72 hours to permit the parties to apply for any confidentiality orders they thought necessary. On 21 February 2018 the parties approached the Court for an order in the following terms:

   1.Pursuant to section 37AF of the Federal Court of Australia Act 1976 (Cth), on the basis of the grounds specified in section 37AG(1)(a), a suppression order be made prohibiting the publication or other disclosure of the following sections of the Court’s reasons dated 19 February 2018 (the Reasons):

   a. the numbers in line 4 and in each of the three dot points in paragraph 50 of the Reasons;

   b. the numbers in lines 2 and 4 of paragraph 51 of the Reasons;

   c. the numbers in line 2 of paragraph 88 of the Reasons;

   d. the numbers in lines 2 and 3 of paragraph 89 of the Reasons;

   e. the numbers in line 4 of paragraph 90 of the Reasons.

2. The Court made that order on Wednesday 21 February 2018.  On Thursday 22 February 2018, on the expiration of the 72-hour embargo, the Court then published a public set of reasons with the redactions indicated in the orders of 21 February 2018 (‘the Redacted Reasons’).  These are the Court’s reasons for making the confidentiality orders of 21 February 2018.

3. These redacted portions of the reasons refer to confidential production information of Dalian (the Second Appellant) relating to its levels of production of hollow steel sections and its profits on the sale of varying grades of these sections. It was obtained as a result in the inquiry into a number of ‘variable factors’ under Division 5 of Part XVB of the Customs Act 1901 (Cth) by the Commissioner. Plainly, information of this kind is of great significance to those operating in the industry and it would be harmful, and unfair, for Dalian’s competitors to have access to it.

4. In Motorola Solutions, Inc. v Hytera Communications Corporation Ltd (No 2) [2018] FCA 17 Perram J recently summarised the principles applicable to orders under s 37AF of the Federal Court of Australia Act 1976 (Cth) where commercially sensitive information is sought to be suppressed from public view. At [8]-[9] this was said:

   ‘8. It might be thought that the mere protection of commercial-in-confidence information, which is essentially what Hytera seeks in this case, fits less comfortably within the statutory words ‘necessary to prevent prejudice to the proper administration of justice’. But this Court has held in a number of cases that commercial sensitivity can be an appropriate basis for making a suppression or non-publication order: see Australian Broadcasting Commission v Parish (1980) 29 ALR 228 at 235 per Bowen CJ; Australian Competition and Consumer Commission v Cement Australia Pty Ltd (No 2) [2010] FCA 1082 at [23] per Greenwood J; Cyclopet Pty Ltd v Australian Nuclear Science and Technology Organisation [2012] FCA 1326 at [7] per Jacobson J; Australian Competition and Consumer Commission v Air New Zealand Ltd (No 3) [2012] FCA 1430 (‘Air New Zealand (No 3)’) at [35]; Australian Competition and Consumer Commission v Origin Energy Electricity Ltd [2015] FCA 278 (‘Origin Energy’) at [148] per Katzmann J; ASE16 v Australian Securities and Investments Commission [2016] FCA 321 at [93] per Markovic J.

   9.There are cogent reasons for this which have variously been described in those cases, but they are generally associated with preserving the integrity of the litigious process, likely to be jeopardised if commercial competitors could benefit from court ordered production of trade secrets by parties to a suit. That said, it is important to recall that the order must be necessary to protect the administration of justice. It can readily be imagined that a carte blanche approach to applications for s 37AF orders for which commercial confidentiality is claimed as a basis, would jeopardise the interest the public has in being able to access court documents under the Federal Court Rules 2011 (Cth) or to engage meaningfully with reasons published by the Court. As I have explained at [6(6)] of these reasons above, the safeguarding of that interest as a primary objective of the administration of justice is a mandatory consideration for the Court. Particularly is that so in cases such as the present, where the Agreement, and its interpretation, may become a central plank in the ultimate resolution of the proceeding, and thus, to the intelligibility of future reasons delivered by the Court.’

5. In this case, to put Dalian in the position of having its sensitive trade information made public as the price to be paid for bringing the appeal would be to undermine the integrity of the processes of this Court. It was for these reasons that the Court made the orders it did under s 37AF.

I certify that the preceding five (5) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justices Perram, Pagone and Bromwich.

Associate: 

Dated:        27 March 2018