Thiess Services Pty Ltd v Department of Natural Resources, Mines and Water

[2006] QLC 40

LAND COURT OF QUEENSLAND

CITATION:

Thiess Services Pty Ltd v Department of Natural Resources, Mines and Water   [2006] QLC 40

PARTIES:

Thiess Services Pty Ltd
(appellant)

v.

Chief Executive, Department of Natural Resources, Mines and Water
(respondent)

FILE NOS:

AV2005/0905

DIVISION:

Land Court of Queensland

PROCEEDING:

Directions – Application for ‘Fielder Gillespie’ Orders

DELIVERED ON:

20 July 2006

DELIVERED AT:

Brisbane

HEARD AT:

Ipswich

MEMBER:

Mr PA Smith

ORDERS:

1.   The parties provide disclosure by 4.00pm on 31 July 2006.

2.   Each party identify as a separate category in the list of documents those documents to which the order in paragraph 4 of this order is claimed(“Fielder Gillespie documents”).

3.   The list of Fielder Gillespie documents is to be supported by affidavit evidence of the existence of commercially sensitive and confidential information in such list.  The Fielder Gillespie list, together with the supporting affidavit or affidavits, shall themselves be treated as documents to which order 4 applies.

4.   Unless another party gives notice within 3 working days from the receipt of the list of documents that it disputes the application of this order to any of the documents identified as Fielder Gillespie documents pursuant to the order in paragraph 2, inspection of the Fielder Gillespie documents is to be completed in accordance with the following terms:

(a)   the solicitors acting for the appellant and the respondent by one of its legal officers with or without the respondent’s valuation witness may inspect the documents and take no more than 1 copy of each of these documents.

(b)   No more that the said copy of each document must be made and that copy must be kept in a secure place at and in the case of the appellant not removed from the offices of the solicitors acting for the appellant and in the case of the respondent kept in a secure place under the supervision of one of the respondent’s legal officers unless:

(i)     leave of the court or written consent of the discovering party or its solicitor is obtained; or

(ii) further copies of the documents are required for the purpose of briefing and consulting with Counsel or experts engaged by the party for the purposes of the appeal and in any event:

(iii) the further copies must be kept in a secure place at and not removed from the offices of the said Council or experts;

(c)   except by leave of the court or with the written consent of the discovering party, the said documents and their contents and any part of those contents must not be:

(i)     divulged to any person, firm or company other than the solicitors, Counsel and experts (including an officer or officers of the respondent for the purpose of preparation of any expert report for this appeal) for the inspecting party;

(ii)   before copies of the documents are provided to experts engaged by the inspecting party or to an officer of the respondent in accordance with 4(c)(i) the experts or officer must give to the discovering party and this Court a written undertaking (the undertaking to continue until varied or discharged by written agreement of the parties, or until further or other Order of the Court) that the person will not:

(A)    use the confidential documents or any of the information contained in them for any purpose other than the conduct of the appeals;

            (B)   make any copies, in whole or in part, of the confidential documents, or divulge any information contained in the confidential documents to any person, firm or company other than a legal officer of the respondent, and any other person who has signed a like undertaking;

(d)       at the conclusion of any appeal period after judgment in this litigation or earlier determination thereof, the inspecting party will return to the solicitors for the discovering party all copies of the documents made pursuant to this order;

5. In the event that a party gives notice that it disputes the application of these orders to documents identified as Fielder Gillespie documents, the party claiming the application of these orders must bring an application to the court within 5 days of such notice, setting out in full the nature of its claim that any such document be protected by these orders.  In the event that no such application is made to the court within the stipulated 5 days, such documents shall be removed from the Fielder Gillespie list and be treated as documents disclosed in the usual way.
6. The parties inspect documents by 4.00pm on 14 August 2006 and the parties provide copies of documents requested within 1 week of receipt of a written request.
7. The parties give written notice to the other party for each expert witness it proposes to call and their area of expertise by 24 August 2006.
8. Expert reports to be relied upon by each party to be exchanged by 14 September 2006.
9. Copies of Statements of any other witness be provided to the other party on 18 September 2006.
10. Responsive expert reports to be relied upon by each party to be exchanged by 28^th September 2006.
11. The parties exchange statements of facts and contentions by 4.00pm 9 October 2006.
12. The appeal be set down for hearing for 5 Days in Brisbane commencing 16 October 2006.
13. A directions hearings be set down in Brisbane for 10.00am 29 September 2006.
14. There be liberty to apply on 3 days' written notice.

CATCHWORDS:

FIELDER GILLESPIE ORDERS – COMMERCIALLY SENSITIVE MATERIAL, CONFIDENTIALITY – DISCLOSURE PROCESS – SPECIAL CIRCUMSTANCES – REVERSAL OF ONUS – INHIBIT RESPONDENT

Valuation of Land Act 1944

Ex parte Fielder Gillespie Limited (1984) 2 Qd.R. 339, applied
Harman v The Home Office 1981 KB 534, referred to
Central Queensland Cement Pty Ltd v Hardy (1989) 2 Qd.R. 509, referred to
Johns v Australia Securities Commission (1993) 178 CLR 408, referred to
Magellan Petroleum Australia Limited v Sagasco Amadeus Pty Ltd (1994) 2 Qd.R. 37, applied
PT Limited v Chief Executive, Department of Natural Resources and Mines, AV 2003/0803, Unreported Orders dated 17 December 2004, noted

APPEARANCES:

Mr Bowie, Solicitor, Minter Ellison, for the appellant
Mr O’Rourke, (Principal Legal Officer, Department of Natural Resources, Mines and Water) for the respondent

1. During the course of a directions hearing held in this matter last week, the appellant requested that orders, commonly referred to as ‘Fielder Gillespie Orders’[1] be made to protect commercially sensitive material.  The respondent has objected to the making of such orders.

Background

[1] See Ex parte Fielder Gillespie Limited (1984) 2 Qd.R. 339

1. The appellant has appealed against a valuation pursuant to the Valuation of Land Act 1944 (VLA) which determined  the value of certain land situated at Swanbank Road, White Rock, in the Parish of Bundamba[2] in the sum of $4,000,000 as at 1 October 2004.  The appellant’s estimate of the value of the land is $350,000.  Most of the land has, in the past, been subject to significant open-cut coal mining operations.  The appellant currently carries out commercial activities on the land involving waste management and disposal.

   [2] Property ID: 40257271

2. The parties were invited to file and serve affidavit material relevant to the Fielder Gillespie orders sought following the directions hearing.  An affidavit was subsequently filed by Benjamin Patrick Fox a solicitor with Minter Ellison Lawyers on behalf of the appellant on 12 July 2006.  No material has been filed by the respondent.

3. In his affidavit, Mr Fox refers to information provided to him by Mr Pitman, the appellant’s manager of landfill operations in Queensland and the Northern Territory.  At paragraph 7 of his affidavit, Mr Fox has this to say:

   “It is part of the Appellant’s case that the cost of remediation of the land to enable it to be used for landfill and associated purposes is relevant to the valuation of land under the Valuation of Land Act 1944. Michael Pitman informs me that the information in relation to the costs of remediation of the land is likely to be of value to the Appellant’s competitors and that it is accordingly commercially sensitive. I am informed by Michael Pitman that the distribution of documents containing that information to one or more of the Appellant’s competitors may adversely affect the financial interests of the Appellant.”

4. Importantly, the directions hearing in this matter was heard conjointly with another matter.  That matter, Collex Pty Ltd and JJ Richards Ti Tree Pty Ltd v. Chief Executive, Department of Natural resources, Mines and Water[3] (Collex) is also a VLA appeal against a 1 October 2004 valuation involving land which has, in the past, been subject to significant open-cut coal mining operations and at which those appellants also currently carry out commercial activities on the land involving waste management and disposal.  Like the matter at hand, the Collex land is situated in the Local Authority of Ipswich.

   [3] AV 2005/0989

5. Mr Fox in his affidavit says that the appellant and the appellants in Collex have reached an arrangement that includes:

   “(a) limitations on the use of commercially sensitive information that becomes available to the parties in the course of the proceedings; and (b) strict measures of control in relation to the copying and distribution of documents containing commercially sensitive information that become available to the parties in the course of the proceedings.”

6. In this regard, while both this matter and Collex are currently listed together, it is anticipated that any hearings will need to be separated for at least part of the time.  I expect that part of that ‘separation time’ will relate to commercially sensitive material as between the respective appellants.

Submissions

1. Mr Bowie for the appellant submitted that the rationale for making Fielder Gillespie type orders clearly existed on the facts of this case.  Mr O’Rourke opposed the orders sought, principally on three grounds.  Firstly, Mr O’Rourke submitted that the orders were unnecessary as confidentiality already applied to the disclosure process.  In this regard, he referred to Harman v. The Home Office 1981 KB 534; Central Queensland Cement Pty Ltd v. Hardy (1989) 2 Qd.R. 509; and Johns v. Australian Securities Commission (1993) 178 CLR 408. Secondly, Mr O’Rourke submitted that the way the orders were drafted ‘reversed the onus’ in that it was essentially up to the respondent to say if it believed that the orders should not apply to one or more of the documents. Mr Bowie countered by saying that the onus was not reversed as, if a dispute arose, it would be up to the appellant to satisfy the Court that the orders should apply. Thirdly, Mr O’Rourke submitted that the orders as drafted were too restrictive on the respondent and would inhibit the respondent in the preparation of his case.

Conclusion

1. I will deal with each of Mr O’Rourke’s submissions in turn.  Firstly, I accept that confidentiality applies to the disclosure process.  However, as Fielder Gillespie itself showed, it does not necessarily follow that the making of Fielder Gillespie type orders is not appropriate in special circumstances.  In this regard, I note the decision of Justice White in Magellan Petroleum Australia Limited v. Sagasco Amadeus Pty Ltd (1994) 2 Qd.R. 37. Further, in the Land Court matter of PT Limited v. Chief Executive, Department of Natural Resources and Mines, AV 2003/0803, Unreported Orders dated 17 December 2004, Member Scott made Fielder Gillespie type orders.  In my view, the facts of this matter as set out in Mr Fox’s affidavit, coupled with the close association of this matter to Collex, result in this matter being a special circumstance where the making of Fielder Gillespie type orders is appropriate.

2. I now turn to the second point, being the reversal of onus.  In my view, there is merit in what Mr O’Rourke submits in this regard.  To some extent, his concerns regarding the absence of sworn material as to why certain documents should be treated with special confidentiality have been met, in a general way, by the affidavit of Mr Fox.  In my view, Mr O’Rourke’s remaining concerns can be met by further amendment to the draft orders proposed.

3. As regards Mr O’Rourke’s third point, that the orders as drafted were too restrictive on the respondent and would inhibit the respondent in the preparation of his case, action taken at the directions hearing has in effect overcome this difficulty.  I agreed with Mr O’Rourke that the original orders proposed by the appellant were too restrictive.  Whilst maintaining his opposition to the making of any Fielder Gillespie type orders, Mr O’Rourke, during the course of an adjournment, was able to reach agreement with Mr Bowie in a recasting of the proposed orders to reduce their effective impact on the respondent should Fielder Gillespie type orders be made.

Orders

1. Having considered the tests outlined in the authorities and the facts in those cases, I conclude that on the facts of the present case Fielder Gillespie type orders are appropriate.

2. The draft orders also propose that this matter be set down for a hearing of 15 days.  Clearly, 15 days is a lengthy period for the Court to set aside at this stage.  In my view, it is too early to accurately estimate what period of time will be required for the hearing the matter.  Certainly, the parties should do all in their power to limit the number of issues in dispute so that the hearing can conclude in a timely way.  I propose at this time to set the matter down for 5 days, and to bring the matter back on for directions prior to the hearing so that a more accurate estimate of time can be obtained.

3. I therefore order in the following terms:

   1.The parties provide disclosure by 4.00pm on 31 July 2006.

   2.Each party identify as a separate category in the list of documents those documents to which the order in paragraph 4 of this order is claimed(“Fielder Gillespie documents”).

   3.The list of Fielder Gillespie documents is to be supported by affidavit evidence of the existence of commercially sensitive and confidential information in such list.  The Fielder Gillespie list, together with the supporting affidavit or affidavits, shall themselves be treated as documents to which order 4 applies.

   4.Unless another party gives notice within 3 working days from the receipt of the list of documents that it disputes the application of this order to any of the documents identified as Fielder Gillespie documents pursuant to the order in paragraph 2, inspection of the Fielder Gillespie documents is to be completed in accordance with the following terms:

   (a)the solicitors acting for the appellant and the respondent by one of its legal officers with or without the respondent’s valuation witness may inspect the documents and take no more than 1 copy of each of these documents.

   (b)No more that the said copy of each document must be made and that copy must be kept in a secure place at and in the case of the appellant not removed from the offices of the solicitors acting for the appellant and in the case of the respondent kept in a secure place under the supervision of one of the respondent’s legal officers unless:

   (i)leave of the court or written consent of the discovering party or its solicitor is obtained; or

   (ii)further copies of the documents are required for the purpose of briefing and consulting with Counsel or experts engaged by the party for the purposes of the appeal and in any event:

   (iii)the further copies must be kept in a secure place at and not removed from the offices of the said Council or experts;

   (c)except by leave of the court or with the written consent of the discovering party, the said documents and their contents and any part of those contents must not be:

   (i)divulged to any person, firm or company other than the solicitors, Counsel and experts (including an officer or officers of the respondent for the purpose of preparation of any expert report for this appeal) for the inspecting party;

   (ii)before copies of the documents are provided to experts engaged by the inspecting party or to an officer of the respondent in accordance with 4(c)(i) the experts or officer must give to the discovering party and this Court a written undertaking (the undertaking to continue until varied or discharged by written agreement of the parties, or until further or other Order of the Court) that the person will not:

   (A)    use the confidential documents or any of the information contained in them for any purpose other than the conduct of the appeals;

   (B)    make any copies, in whole or in part, of the confidential documents, or divulge any information contained in the confidential documents to any person, firm or company other than a legal officer of the respondent, and any other person who has signed a like undertaking;

   (d)at the conclusion of any appeal period after judgment in this litigation or earlier determination thereof, the inspecting party will return to the solicitors for the discovering party all copies of the documents made pursuant to this order;

   5.In the event that a party gives notice that it disputes the application of these orders to documents identified as Fielder Gillespie documents, the party claiming the application of these orders must bring an application to the court within 5 days of such notice, setting out in full the nature of its claim that any such document be protected by these orders.  In the event that no such application is made to the court within the stipulated 5 days, such documents shall be removed from the Fielder Gillespie list and be treated as documents disclosed in the usual way.

   6.The parties inspect documents by 4.00pm on 14 August 2006 and the parties provide copies of documents requested within 1 week of receipt of a written request.

   7.The parties give written notice to the other party for each expert witness it proposes to call and their area of expertise by 24 August 2006.

   8.Expert reports to be relied upon by each party to be exchanged by 14 September 2006.

   9.Copies of Statements of any other witness be provided to the other party on 18 September 2006.

   10.Responsive expert reports to be relied upon by each party to be exchanged by 28^th September 2006.

   11.The parties exchange statements of facts and contentions by 4.00pm 9 October 2006.

   12.The appeal be set down for hearing for five days in Brisbane commencing 16 October 2006.

   13.A directions hearings be set down in Brisbane for 10.00am 29 September 2006.

   14.There be liberty to apply on 3 days' written notice.

P A SMITH

MEMBER OF THE LAND COURT