WAM Active Limited v Keybridge Capital Limited

[2024] NSWSC 1135

Supreme Court

New South Wales

Medium Neutral Citation:

WAM Active Limited v Keybridge Capital Limited [2024] NSWSC 1135

Hearing dates:

4 September 2024

Date of orders:

4 September 2024

Decision date:

04 September 2024

Jurisdiction:

Equity - Corporations List

Before:

Nixon J

Decision:

(1)   Directs the parties to provide to the Associate to Nixon J, by 4pm on 9 September 2024, short minutes of order to give effect to these reasons for judgment.

(2)   Directs that, if the parties are unable to agree on orders to give effect to these reasons for judgment, the parties are to notify the Associate to Nixon J, by 4pm on 9 September 2024, and are to provide, at that time, the competing forms of orders.

Catchwords:

PRACTICE AND PROCEDURE – inspection of documents disclosed in proceedings – whether plaintiff and defendant are trade rivals – whether documents in issue contain commercially sensitive information – whether any commercially sensitive information should be disclosed to a designated officer of the plaintiff

Legislation Cited:

Court Suppression and Non-publication Orders Act 2010 (NSW), ss 7-8

Cases Cited:

Betfair Pty Ltd v Racing NSW (No 5) [2009] FCA 1011

Bidvest Australia Ltd v Auzcorp Pty Ltd (No 2) [2017] WASCA 23

Cadbury Pty Ltd v Amcor Ltd (No 2) [2009] FCA 663

Hadid v Lenfest Communications Inc (1996) 70 FCR 403

Hearne v Street (2008) 235 CLR 125; [2008] HCA 36

ICAP Australia Pty Ltd v Moebes [2010] NSWSC 738

Lenark Pty Ltd v TheChairmen 1 Pty Ltd (No 2) [2012] NSWSC 415

Mobil Oil Australia Ltd & McDonalds Australia Ltd v Guina Developments Pty Ltd [1996] 2 VR 34

Skyscanner Ltd v Hotels Combined Pty Ltd (No 2) [2016] NSWSC 326

Unilever Australia Ltd v Revlon Australia Pty Ltd (No 3) [2014] FCA 1005

Category:

Procedural rulings

Parties:

WAM Active Limited (Plaintiff)
Keybridge Capital Limited (Defendant)

Representation:

Counsel:
D Krochmalik (Plaintiff)
A Bulley (Defendant)

Solicitors:
Mills Oakley (Plaintiff)
Kerrs Law (Defendant)

File Number(s):

2024/65373

Publication restriction:

Nil

EX TEMPORE JUDGMENT – REVISED 5 September 2024

1. By an Interlocutory Process filed 23 August 2024, the Defendant, Keybridge Capital Limited, seeks orders that various documents which have been produced by Keybridge in these proceedings (the Relevant Documents) be provided for inspection only to the legal representatives and experts of the Plaintiff, WAM Active Limited, and be subject to a confidentiality undertaking.

2. These orders are sought on the basis that Keybridge and WAM are trade rivals and there is commercially sensitive information in the Relevant Documents.

3. WAM disputes that there is any basis for a limitation on the extent to which the Relevant Documents may be inspected and, in particular, disputes that it is a trade rival of Keybridge or that the Relevant Documents have been shown to contain any commercially sensitive information. Further, WAM says that, if those submissions are rejected, Keybridge would be adequately protected by disclosure being restricted to WAM’s Joint Company Secretary, Mr Jesse Hamilton, who has no role in any investment decisions taken by WAM or its associated entities.

Relevant Principles

4. The Interlocutory Process sought orders under ss 7 and 8 of the Court Suppression and Non-publication Orders Act 2010 (NSW) or alternatively pursuant to the inherent jurisdiction of the Court.

5. At the hearing of the application, the parties acknowledged that, because this is an application for orders restricting the extent to which a party may inspect documents which have been produced by another party in the proceedings, the Court Suppression and Non-publication Orders Act, which applies where information is given in evidence in a proceeding, does not have any application.

6. The issue for determination is whether the Court should exercise its power to restrict the ability of one party in proceedings to inspect documents produced by the other party and if so, to what extent and on what terms.

7. A party to proceedings has “a clear prima facie right … personally to inspect discovered documents”: Hadid v Lenfest Communications Inc (1996) 70 FCR 403 at 410.

8. However, this right carries with it an obligation (often called the implied undertaking), namely, that 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: Hearne v Street (2008) 235 CLR 125 at [96]; [2008] HCA 36.

9. Ordinarily, the fact that discovered documents are confidential will not be a sufficient reason to deny inspection, as the implied undertaking that the documents will be used only for the purpose of the litigation will provide sufficient protection: Bidvest Australia Ltd v Auzcorp Pty Ltd (No 2) [2017] WASCA 23 at [41] (Martin CJ, Newnes and Murphy JJA).

10. However, one circumstance where it has been recognised that the implied undertaking may provide insufficient protection, and where the court may impose restrictions on inspection, is where the parties are trade rivals and the documents disclosed by one party contain confidential information of use to the other party in that trade rivalry: Bidvest at [42].

11. Each of the parties referred to the following passage of the decision of Hayne JA (with whom Winneke P and Phillips JA agreed) in Mobil Oil Australia Ltd & McDonalds Australia Ltd v Guina Developments Pty Ltd [1996] 2 VR 34 at 38, as being the leading statement of principle on this question:

“While it may readily be accepted that a party is ordinarily entitled to discovery and inspection of all discoverable documents in the possession or control of the opposite party (save those for which a valid claim for privilege from production is claimed) it is important to bear steadily in mind that discovery is but a tool to be used in the pursuit of justice and that the right to discovery and inspection is not without its limits. The first and most obvious limit is that a party does not have a right to inspect documents that are discovered if there is a valid claim to privilege from production (as eg on the grounds of legal professional privilege). Secondly, because the law recognises that the assertion of compulsive power requiring production must be balanced against the needs of justice, a party inspecting the documents of the opposite party may not use them except for the purposes of the action in which discovery is made.

Where it is said that the documents are confidential, it may be accepted that the fact that the documents are confidential will not ordinarily be a sufficient reason to deny inspection by the opposite party. In most cases, the fact that the documents may not be used except for the purposes of the litigation concerned will be sufficient protection to the party producing them. But where, as here, the party obtaining discovery is a trade rival of the person whose secrets it is proposed should be revealed by discovery and inspection, other considerations arise.

Once the documents are inspected by the principals of the trade rival the information which is revealed is known to the trade rival and cannot be forgotten. Confidentiality is destroyed once and for all (at least so far as the particular trade rival is concerned). To say that the trade rival is bound not to use the documents except for the purposes of the action concerned is, in a case such as this, to impose upon that trade rival an obligation that is impossible of performance by him and impossible of enforcement by the party whose secrets have been revealed. How is the trade rival to forget what internal rate of return the competitor seeks to achieve on a new investment of the kind in question? How is the party whose hurdle rate has been revealed to know whether the rival has used the information in framing a tender? Thus, if the trade rival may inspect the documents concerned, the confidentiality of the information in them is at once destroyed. Is that necessary for the attainment of justice in the particular case?”

12. In principle, such confidentiality claims should only be asserted over documents which are genuinely confidential, and it is a matter for the party seeking to restrict access to identify which documents are confidential and why: Lenark Pty Ltd v TheChairmen 1 Pty Ltd (No 2) [2012] NSWSC 415 at [15] (per Black J), referring to Betfair Pty Ltd v Racing NSW (No 5) [2009] FCA 1011. In particular, it is necessary to establish the character of each such document that warrants protection additional to that granted by the implied undertaking: Lenark at [12].

13. Where parties are shown to be trade rivals, and the material in question is shown to be commercially sensitive, a balancing issue arises, that is, it is necessary to “strike a fair balance between the needs of the party seeking discovery and the legitimate concern of the trade rival to retain the secrecy of its commercially sensitive information”: Lenark at [12], referring to Cadbury Pty Ltd v Amcor Ltd (No 2) [2009] FCA 663 at [6]-[7] per Gordon J.

14. As regards the needs of the party seeking discovery, the following observations of Ball J in ICAP Australia Pty Ltd v Moebes [2010] NSWSC 738 at [11] are particularly important:

“Each case will depend on its own facts. However, in my opinion, it will rarely be the case that a regime that limits access to external solicitors and counsel will meet the requirement of reasonableness. That is because those solicitors and counsel must act on the instructions of someone; and normally the person or persons giving those instructions should be entitled to see all the documents available to their advisors so that they can understand the basis of any advice given to them.”

15. This statement of principle has often been cited in subsequent decisions: see, for example, Lenark at [14]; Unilever Australia Ltd v Revlon Australia Pty Ltd (No 3) [2014] FCA 1005 at [19] (Gleeson J); and Skyscanner Ltd v Hotels Combined Pty Ltd (No 2) [2016] NSWSC 326 at [7] (Slattery J).

Are the parties trade rivals?

16. Keybridge is an investment and financial services group with a diversified portfolio of listed and unlisted investments. Keybridge targets its investments in the core asset classes of property, infrastructure, fixed income and leases over tangible equipment. Keybridge is listed on the Australian Securities Exchange (ASX), although its shares are currently suspended from trading.

17. On its website, Keybridge states, under the heading “Strategy and Business Model”, that: “At the present time, the Company is focusing on managing its existing investment portfolio to protect value and bring forward realisations”.

18. WAM is an investment company providing financial and investment management services and engaging in investment activities on behalf of its clients. It is also listed on the ASX.

19. WAM’s investment manager, MAM Pty Limited, is a wholly owned subsidiary of Wilson Asset Management (International) Pty Ltd, which is also an investment manager. The website of Wilson Asset Management states that it invests over $5 billion on behalf of more than 130,000 retail investors.

20. According to WAM’s annual report for the year ended 30 June 2024, the investment objectives of WAM are to deliver investors a regular income stream in the form of fully franked dividends; to provide investors with a positive return with low volatility, after fees, over most periods of time; and to preserve capital in both the short and long term.

21. WAM’s annual report also states that WAM provides its investors with exposure to an active trading style, with the aim of achieving a sound return with a low correlation to traditional markets. Its annual report further states that its investment portfolio is actively traded and as such opportunities are derived from initial public offerings, placements, block trades, rights issues, corporate transactions, arbitrage opportunities, listed investment companies discount arbitrages, short selling and trading market themes and trends.

22. WAM’s annual report also discloses its full investment portfolio at 30 June 2024, including the particular investments it holds and the size of each such investment.

23. Keybridge referred to the fact that WAM is a substantial shareholder in Keybridge and has previously made takeover bids for Keybridge. However, those bids were made in the space of 12 months, with the last bid being made more than four years ago. The Company Secretary of WAM, Mr Hamilton, gave unchallenged evidence that WAM does not presently have any desire to launch another hostile takeover bid against Keybridge in circumstances where Keybridge is presumed to be insolvent and WAM is seeking to wind up Keybridge on the grounds of insolvency. I do not consider that the bids made in different circumstances more than 4 years ago provide a basis for restricting access to documents for the purposes of the wind-up proceeding.

24. The key issue for the purposes of the current application is whether WAM and Keybridge are trade rivals and in what respects.

25. WAM pointed out that there are significant differences in the size of WAM and Keybridge and the scale of their operations. WAM has a larger market capitalisation and a larger portfolio. WAM has a history of regularly paying dividends, whereas Keybridge has paid none since 2018.

26. However, those matters are of limited significance for determining whether or not, and to what extent, WAM and Keybridge are trade rivals. Plainly, entities of a different size, with a different scale of operations, may still compete in the same industry. It is necessary to consider whether, and to what extent, there is evidence of such competition actually occurring.

27. In that regard, Mr Bolton provided examples of particular investments in respect of which WAM has actively competed with Keybridge.

28. In July 2017, Aurora Funds Management, an associated entity of Keybridge, announced a takeover bid for Molopo Energy Limited. A few months later, at a point in time when Keybridge had a 20% interest in Molopo, WAM launched its own takeover bid for Molopo.

29. On 13 March 2019, Keybridge announcement a takeover bid for Yowie Group Limited. On or about 22 March 2019, WAM lodged a Form 603 with the Australian Securities and Investments Commission advising that it had acquired a 13% interest in Yowie. According to this form, WAM had become a substantial holder of Yowie on 20 March 2019. Keybridge and WAM subsequently engaged in a dispute regarding this matter before the Australian Government Takeovers Panel.

30. In early 2024, Keybridge initiated a process to acquire a material interest in the Australian Unity Office Fund. This process was reported in the financial press and, shortly afterwards, WAM completed its own acquisition of a substantial interest in that fund.

31. I accept that some of these examples go back a number of years. However, the example of the Australian Unity Office Fund is more recent.

32. Those matters do provide a basis for concluding that, at least in respect of some investments or potential investments, Keybridge and WAM are in competition.

33. However, that does not mean that any documents which contain Keybridge’s confidential information can be withheld from WAM. In order to establish a basis for restricting inspection of documents, it is necessary to show that the Relevant Documents contain commercially sensitive information, and that the provision of this information to WAM would put WAM at an advantage, or would put Keybridge at a disadvantage.

Relevant Documents

34. I was taken in submissions to the Relevant Documents. Keybridge identified the parts of the documents which it said were commercially sensitive, and the basis on which they were said to be commercially sensitive. I have reviewed the parties’ written submissions and the Relevant Documents, to determine the extent to which the claims for commercial sensitivity have been established.

Documents K0019-K0022, K0026, K0033, K0036, K0040, K0094- K0099

35. As a result of that review, I am satisfied that a number of the Relevant Documents contain commercially sensitive information: namely, those numbered K0019, K0020, K0021, K0022, K0026, K0033, K0036, K0040, K0094, K0095, K0096, K0097, K0098 and K0099.

36. These documents are all of a similar type. They disclose trading in respect of certain specified investments, showing the dates of trades and the volumes of trades in those investments. Mr Bolton gave unchallenged evidence that this information related to Keybridge’s currently active trade portfolio, was not publicly available, and could disclose Keybridge’s investment strategy.

37. I am satisfied, based on this evidence and my inspection of the documents, that material of this type, showing the detailed pattern of Keybridge’s trading in its active portfolio over a period of time, might disclose Keybridge’s investment strategy to a trade rival and is therefore commercially sensitive.

38. However, I am not satisfied that any of the other Relevant Documents are commercially sensitive. I provide my reasons in respect of each of these documents below, grouping them where appropriate.

Documents K0007 and K0008

39. These documents contain a summary of aged receivables and aged payables as at 31 December 2023 and as at 31 March 2024. Mr Bolton gave evidence that these were “working documents which are unaudited” and contain “information such as value of assets held by Keybridge”. It was submitted, on this basis, that they were commercially sensitive.

40. The only “assets” disclosed are aged receivables at a point in time some 6-9 months ago. The documents do not disclose investments, let alone any trading activity in investments. The evidence does not establish a basis for concluding that the quantum or identity of Keybridge’s creditors and debtors at a point in time either 6 or 9 months ago would provide a commercial rival with a trade advantage. The fact that the material is unaudited does not, of itself, mean that it would be of advantage to a trade rival and, if anything, would suggest that it is of limited value.

Documents K0008, K0055 and K0056

41. Also included in Document K0008 are management accounts of Keybridge for the period ended 31 March 2024. Documents K0055 and K0056 are further examples of management accounts of Keybridge for the periods ended, respectively, 31 December 2023 and 31 March 2024.

42. It was submitted that the management accounts were commercially sensitive insofar as they contained a list of the holdings of investments as at the reporting dates.

43. However, as WAM noted, it publishes its own complete list of its investments at each reporting date (the latest being as at 30 June 2024). Moreover, the list of Keybridge’s investments as at the reporting date does not disclose anything about Keybridge’s trading activity, trading patterns, or investment strategy.

44. In addition, Counsel for Keybridge acknowledged that this material had now been “superseded” by published financial information.

45. In that regard, Mr Bolton gave the following evidence in his affidavit regarding the commercial sensitivity of the material in the 31 March 2024 management accounts:

“This document contains pre-audit financial information about Keybridge which is yet to be disclosed to the market. The information will be publicly available on or about 31 August 2024. Keybridge has no opposition to this document being produced to WAM on that date.”

46. In its submissions, WAM pointed out that the report to which Mr Bolton was referring, being Keybridge’s financial report for the year ended 30 June 2024, has now been published to the market. As WAM submitted, it must follow, given Mr Bolton’s evidence set out above, that there is no continuing objection to the material in the management accounts of 31 March 2024 (and also the management accounts as at 31 December 2023) being disclosed to WAM. Keybridge did not say anything against that submission in reply.

47. In those circumstances, I am not satisfied that there is any ongoing commercial sensitivity in these documents.

Documents K0009 and K0010

48. These documents are bank statements of Keybridge and its wholly owned subsidiary, Electron-1 Pty Ltd, from July 2023 onwards.

49. These bank statements contain hundreds of individual transactions. Mr Bolton stated in his affidavit that these bank statements contain “references in the transactions descriptions to Keybridge’s investments, proprietary trading intellectual property, remuneration of its personnel, details of legal matters, and director loans”. On this basis, the bank statements were submitted to contain commercially sensitive information.

50. I consider evidence in this form to be unsatisfactory. The bank records include, as would be expected, multiple transactions which appear to have no information other than the payer/payee and amount. If there are specific narratives in the bank statements which contain commercially sensitive information, they should have been identified and a reason given as to why those particular narratives were commercially sensitive. There was no attempt to do so in respect of any individual entries either in evidence or in submissions.

51. I was not taken to a single narrative which discloses “Keybridge’s investments, proprietary trading intellectual property, remuneration of its personnel, details of legal matters, and director loans”. As I have noted above, it is for the party asserting confidentiality to establish, with specificity and on the basis of evidence, the particular information which is said to be commercially sensitive. Keybridge has failed to do so in respect of these bank statements.

Documents K0050, K0075 and K0076

52. These documents contain instructions provided to Keybridge’s expert for the purpose of preparing his report in these proceedings.

53. The only basis on which it was asserted that WAM was not entitled to inspect these documents was that they were privileged. However, as WAM submitted, any privilege in those documents has been waived, both by the service of the expert’s report, and also by the production of these documents to WAM’s legal representatives in these proceedings. Keybridge did not, in submissions, dispute that waiver had occurred.

54. Accordingly, there is no basis for restricting inspection of these documents.

Documents K0057 and K0058

55. These documents are trial balances for the period ending 31 March 2024. Mr Bolton deposed that they contain “information such as names and values of investments held by the Keybridge and Electron-1 Pty Ltd and details about its internal management procedures”. On this basis, these documents were submitted to contain commercially sensitive information.

56. There was no evidence or explanation regarding how, and in what respects, the material in these trial balances provides information about Keybridge’s internal management procedures, let alone any attempt to identify what information about those procedures was disclosed, or why such information would be of commercial advantage to a trade rival. Otherwise, for reasons previously stated, I do not consider that a list of investment holdings at a particular date 6 months ago reveals any information about trading patterns or trading strategy, and I am not satisfied, on the evidence before me, that having access to this information would place a trade rival at an advantage. Further, as set out above, Mr Bolton indicated that there was no ongoing sensitivity in the management accounts as at 31 March 2024 (which included a list of investments as at that date) and it would follow that there is no ongoing sensitivity in similar information contained in trial balances as at the same date.

Document K0062

57. Document K0062 is a record of operating costs of Keybridge. Mr Bolton gave evidence that those costs “are not publicly known”. However, no reasons were given to support his submission that this material “would be valuable information for a competitor of Keybridge”. There was no attempt to articulate how this information might be used by such a competitor. Given the nature of the information (operating costs) and the high level of generality at which those costs are expressed, I am not satisfied, on the basis of the evidence before me, that this material is commercially sensitive.

Documents K0064 and K0066

58. These documents relate to a contract between persons who are not parties to the proceedings. The material was not said to be confidential to Keybridge, and there is no evidence that either of the parties to the contract has raised any issue about confidentiality. In those circumstances, there is no reason why this material may not be inspected by WAM.

Document K0077 and Notice to Produce Documents, 14 and 15

59. These documents refer to amounts paid in respect of legal fees and provisions for legal expenses. Mr Bolton deposed that they “contain confidential information about Keybridge’s litigation strategy”. I was taken to these documents in submissions and have reviewed them. They do nothing more than identify amounts of payments in respect of legal fees, the payees and the provisions made in respect of certain proceedings. I do not consider that anything in this material discloses Keybridge’s “litigation strategy” in any of the relevant proceedings. I do not consider that a basis has been established for a restriction on WAM’s ability to inspect this material.

Documents K0078 and K0079

60. These documents record the impact on net tangible assets of a trade in Magellan Global Fund Options that was announced to the ASX on 12 December 2023, and the application of funds from that realisation.

61. Mr Bolton deposed that the documents contain information “about acquisitions by Keybridge, specifically the Magellan Global Fund Options acquisitions and details about Keybridge’s internal management decisions”.

62. As WAM noted, the trade in Magellan Global Fund Options has already been disclosed to the market, and is described in a note to Keybridge’s accounts as at 30 June 2024.

63. There is no reasoning to explain why the internal application of funds from that trade, whether to debt or investments, would be a matter which would provide any trade rival of Keybridge with a commercial advantage.

Notice to Produce Documents, 2, 6, 7 and 8

64. These documents comprise minutes of meetings of, and resolutions of, the board of directors of Keybridge. They were submitted to be commercially sensitive on the basis of Mr Bolton’s evidence that they contained “information which is not publicly available about Keybridge’s assets and investment strategy” and in particular “how it funds its investment portfolio”.

65. I was taken through the minutes in submissions and have reviewed them. They contain information about company loans, information about the half-year financial statements and information about the trade in Magellan Global Fund Options (which has been disclosed). The evidence does not explain why the terms of loans which Keybridge has obtained in the past to assist in the acquisition of particular investments, or which Keybridge has repaid from the sale of particular investments, would provide a trade rival with a commercial advantage. For example, I was not referred to any evidence that Keybridge and WAM obtain funding from the same sources, such that WAM would be placed at an advantage if it knew the terms on which Keybridge was able to obtain funding from those lenders.

Notice to Produce Documents, 4 and 5

66. These documents are, respectively, a balance sheet and a profit and loss for Electron-1 Pty Ltd as at 30 June 2024. These were claimed to be sensitive on the basis that their disclosure to WAM “would give insight into valuable proprietary trading intellectual property”.

67. The relevant intellectual property was not identified, nor was there any explanation as to how the information which is stated at the level of generality expected in a one-page balance sheet or P&L would “give an insight” into such property. Nor was there any explanation of what that insight would be, or how it would be valuable to a trade rival.

68. I am not satisfied that there is a basis to uphold a confidentiality claim in respect of these documents.

Notice to Produce Documents, 9 to 13

69. These documents are Keybridge’s financial reports, including its balance sheet, profit and loss statements, accruals report, aged payables and aged receivables summary. Mr Bolton stated that these documents contain pre-audit information which is yet to be disclosed to the market, and noted that the information will be publicly available on 31 August 2024.

70. For reasons given above in relation to the management accounts, and in particular having regard to the fact that Keybridge has now published its accounts as at 30 June 2024, I do not consider that there is any ongoing commercial sensitivity in these documents.

Conclusion

71. I accept that those Relevant Documents which have not been shown to contain commercially sensitive information may nonetheless contain information which is not publicly available and which is confidential to Keybridge. However, in respect of such documents, Keybridge is adequately protected by the implied undertaking.

Extent of Restriction on disclosure

72. Although I am satisfied that, in some respects, WAM and Keybridge are trade rivals and that some of the information is commercially sensitive, it does not follow that WAM should not be entitled to inspect any of this information.

73. As I have indicated above, it is necessary to strike a balance between Keybridge’s interest in protecting disclosure of this information to a trade rival and WAM’s interest in prosecuting these proceedings and being able to provide informed instructions in relation to them.

74. In that regard, WAM has proposed that, insofar as any documents are determined to be commercially sensitive, they should be provided to a designated person within WAM, Mr Hamilton, on the provision of an appropriate confidentiality undertaking, so that he can provide informed instructions on WAM’s behalf in relation to the conduct of the proceedings.

75. Mr Hamilton is a Chartered Accountant, is Joint Company Secretary of WAM and is the Chief Financial Officer (CFO) of Wilson Asset Management.

76. In his role as CFO, Mr Hamilton oversees all finance and accounting for Wilson Asset Management. His roles as CFO and Joint Company Secretary are described by him as “back-office governance/support roles”. He gave unchallenged evidence that he does not form part of the Wilson Asset Management or WAM investment teams, does not trade WAM’s investment portfolio, and does not make investment decisions on behalf of WAM.

77. He identified the persons who are responsible for trading, and gave unchallenged evidence that he was not part of that team and had no involvement in or input into their investment decisions.

78. At all times, Mr Hamilton has been the WAM representative coordinating instructions in relation to these proceedings. He has generally been the only person at WAM who receives communications from WAM’s lawyers regarding these proceedings.

79. The only objection taken to Mr Hamilton is that he is the person who has provided instructions in a number of proceedings involving Keybridge, and that there had been some “bad blood” in the litigation between Keybridge and WAM.

80. However, there was no suggestion that Mr Hamilton has behaved other than appropriately in these or any other proceedings. Further, the fact that Mr Hamilton is the person who regularly gives instructions in relation to proceedings, and has been providing instructions in relation to these proceedings against Keybridge, provides a good reason why he should be the person who, on behalf of WAM, is provided with access to the documents so that he can provide informed instructions in these proceedings.

81. Mr Hamilton’s suitability to be the relevant person is underlined by the fact that he has no role in any investment decisions, and also by the fact that, by reason of his accounting expertise, he is well placed, if given access to the relevant material, to provide informed instructions in relation to the principal dispute in this proceeding (namely, the issue of Keybridge’s solvency).

82. In the circumstances of this case, I have determined that the appropriate balance between the interests of Keybridge and WAM would be struck by WAM’s proposal that disclosure of the particular information which I have determined to be commercially sensitive should be restricted to Mr Hamilton of WAM, on the basis that he provide a undertaking to the Court to the effect that he will keep the information in those documents confidential, and will not disclose this information to any person other than WAM’s legal representatives and expert. Similarly, the undertakings given by WAM’s legal representatives and expert should be varied so that, when Mr Hamilton has provided an undertaking in this form, they are able to disclose this information to him.

CONCLUSION AND ORDERS

83. Keybridge sought orders to the effect that none of the Relevant Documents be disclosed to any person within WAM. It has failed in that application. I have substantially accepted WAM’s submissions regarding the confidentiality claims and WAM’s proposal that any confidential documents should be made available for inspection to a designated person, Mr Hamilton, subject to an appropriate undertaking. Given that is so, WAM is entitled to its costs of the application.

84. The parties should bring in short minutes of order to give effect to these reasons for judgment, including costs. Those orders should make clear that the regime in respect of inspection of these documents is one that lasts until further order, with liberty to apply.

85. Accordingly, I make the following orders. The Court:

1. Directs the parties to provide to the Associate to Nixon J, by 4pm on 9 September 2024, short minutes of order to give effect to these reasons for judgment.

2. Directs that, if the parties are unable to agree on orders to give effect to these reasons for judgment, the parties are to notify the Associate to Nixon J, by 4pm on 9 September 2024, and are to provide, at that time, the competing forms of orders.

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Decision last updated: 05 September 2024