JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CIVIL
CITATION: UON PTY LTD -v- HOASCAR [2020] WASC 271
CORAM: ARCHER J
HEARD: 22 JUNE 2020
DELIVERED : 24 JULY 2020
FILE NO/S: CIV 3178 of 2016
BETWEEN: UON PTY LTD
First Plaintiff
LAA INDUSTRIES PTY LTD
Second Plaintiff
AND
GABRIEL HOASCAR
First Defendant
TARANIS POWER GROUP PTY LTD
Second Defendant
Catchwords:
Commercially sensitive documents - Confidentiality regime - Variation - Trade rivals - Proper approach
Legislation:
Nil
Result:
Application for orders varying the confidentiality regime allowed in part
Category: B
Representation:
Counsel:
| First Plaintiff | : | M L Bennett & T J C Elder |
| Second Plaintiff | : | M L Bennett & T J C Elder |
| First Defendant | : | P D C Robinson |
| Second Defendant | : | P D C Robinson |
Solicitors:
| First Plaintiff | : | Bennett + Co |
| Second Plaintiff | : | Bennett + Co |
| First Defendant | : | Williams & Hughes |
| Second Defendant | : | Williams & Hughes |
Case(s) referred to in decision(s):
Alcoa of Australia Ltd v Apache Energy Ltd [No 4] [2013] WASC 377
Ancient Order of Foresters in Victoria Friendly Society Ltd v Lifeplan Australia Friendly Society Ltd [2018] HCA 43; (2018) 265 CLR 1
Betfair Pty Ltd v Racing New South Wales (No 5) [2009] FCA 1011
Cadbury Pty Ltd v Amcor Ltd (No 2) [2009] FCA 663
Civic Video Pty Ltd v Paterson [2013] WASCA 107
Co‑operative Bulk Handling Ltd v Brookfield Rail Pty Ltd [No 2] [2014] WASC 38
Duckworth v Water Corporation [2012] WASC 30; (2012) 261 FLR 185
Faccenda Chicken Ltd v Fowler [1987] Ch 117
Fortescue Metals Group Ltd v Argus Media Ltd [2020] EWHC 1304 (Ch)
Hadid v Lenfest Communications Inc (1996) 70 FCR 403
ICAP Australia Pty Ltd v Forrest Moebes [2010] NSWSC 738
Idoport Pty Ltd v National Australia Bank Ltd [2001] NSWSC 1024
Lampson (Australia) Pty Ltd v Fortescue Metals Group Ltd [No 2] [2010] WASC 217
Lenark Pty Ltd v The Chairmen1 Pty Ltd (No 2) [2012] NSWSC 415
Mobil Oil Australia Ltd v Guina Developments Pty Ltd [1996] 2 VR 34
NAK Australia Pty Ltd v Starkey Consulting Pty Ltd [2008] NSWSC 1136
ARCHER J:
Introduction
The plaintiffs seek a variation of confidentiality orders I made at the parties' request on 9 October 2018 in relation to certain documents discovered by the defendants (Regime).
Under the Regime, inspection of documents alleged to be confidential was limited to the parties' lawyers, counsel and experts (who were required to first sign an undertaking), and the court.
The plaintiffs seek to be permitted to inspect those documents personally. They submit that this will enable them 'to properly instruct their solicitors on matters central to the issues in dispute and so that the litigation can be managed with appropriate consideration given to proportionality'. They submit that this legitimate interest outweighs any assertion by the defendants of commercial sensitivity.[1]
[1] Plaintiffs' Submissions in Support of Application for Inspection of Confidential Documents filed 8 May 2020 (Plaintiffs' Submissions) [13] ‑ [15].
The defendants…
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- AGLC
- UON Pty Ltd v Hoascar [2020] WASC 271
- Case
- [2020] WASC 271
- Decision Date
CaseChat Overview and Summary
The central legal issue before the court was the proper approach to determining the release of commercially sensitive documents from a confidentiality regime, particularly when the parties involved are trade rivals. The court needed to balance the interests of maintaining confidentiality against the public interest in accessing certain information, especially when it is relevant to ongoing commercial activities and potential market competition.
The court found that the documents in categories 1, 2, 3, and 5 should be released from the confidentiality regime. It reasoned that these documents were less likely to contain commercially sensitive information that would cause significant harm to Hoascar's business interests. Conversely, the court determined that documents in category 4 should remain protected under the confidentiality regime due to their potential to reveal sensitive business strategies and trade secrets. The court emphasised that the threshold for maintaining confidentiality should be high, especially when the information has become more widely available or when its disclosure would not significantly impact the business of the party seeking to keep it confidential.
In conclusion, the court ordered that the documents in categories 1, 2, 3, and 5 should be released from the confidentiality regime. The court also directed the parties to provide input on the form of the final orders, including any potential stay to allow for an appeal. Furthermore, the court indicated that it would consider the costs of the proceeding, with a preliminary view that the defendants should bear the plaintiffs' costs due to the outcome of the case.
Orders
Orders of the court
213. For the reasons I have given, I consider that the documents in categories 1, 2, 3 and 5 should be released from the Regime.
214. I will hear from the parties as to the form of the final orders, including as to whether the orders should be stayed to permit the defendants to appeal this decision if they wish to do so.
215. I will also hear from the parties as to costs. In view of the outcome, my preliminary view is that the defendants should pay the plaintiffs' costs.
215.
215. I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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