Wilson Transformer Company Pty Ltd v Anti-Dumping Review Panel

[2021] FCA 49

FEDERAL COURT OF AUSTRALIA

Wilson Transformer Company Pty Ltd v Anti-Dumping Review Panel [2021] FCA 49  

File number(s):	VID 409 of 2020
Judgment of:	KERR J
Date of judgment:	1 February 2021
Legislation:	Federal Court Act 1976 (Cth) ss 37AF, 37AH
Division:	General Division
Registry:	Victoria
National Practice Area:	Administrative and Constitutional Law and Human Rights
Number of paragraphs:	4
Date of hearing:	Determined on the papers
Solicitor for the Applicant:	Mr D Peters of Kinsman Legal Services Pty Ltd
Solicitor for the First Respondent:	Ms R Deane of Australian Government Solicitor
Solicitor for the Second and Third Respondents:	Ms E Murphy of Moulis Legal
Solicitor for the Fourth, Fifth and Sixth Respondents:	Ms E Cheesman of Clayton Utz

ORDERS

VID 409 of 2020

BETWEEN:

WILSON TRANSFORMER COMPANY PTY LTD (ACN 004 216 979)

Applicant

AND:

ANTI-DUMPING REVIEW PANEL

First Respondent

ABB POWER GRIDS AUSTRALIA PTY LTD (ACN 010 087 608)

Second Respondent

ABB CHONGQING TRANSFORMER CO LTD (and others named in the Schedule)

Third Respondent

ORDER MADE BY:	KERR J
DATE OF ORDER:	1 FEBRUARY 2021

THE COURT ORDERS THAT:

1.Pursuant to s 37AF of the Federal Court Act 1976 (Cth) the Court orders that, until further order, the information identified in Schedule 1  be kept confidential and not be published or otherwise disclosed to any person other than:

(a)The first respondent or its legal representatives;

(b)Officers of the Anti-Dumping Review Panel, Anti-Dumping Commission or the Department of Industry, Science, Energy and Resources; 

(c)Solicitors on the record or counsel for the applicant and the second to sixth respondents who have given the Court a confidentiality undertaking in respect of the information identified in Schedule 1.

2.Order 1 is made on the grounds that the order is necessary to prevent prejudice to the proper administration of justice.

3.Any person entitled to be heard as to the making of an order for confidentiality pursuant to s 37AH(2)(d) or (e) may apply on short notice for Order 1 to be discharged or varied.

SCHEDULE 1

ITEM  Parts that are to remain Confidential

Confidential Annexure RMD-02       All

Confidential Annexure RMD-03       All

Confidential Tender Bundle              All

Note:   Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

KERR J:

1. On 9 July 2020 I ordered that subject to the parties agreeing any necessary and suitable arrangements for confidentiality the Anti-Dumping Review Panel file and serve its affidavit evidence by 11 September 2020. The time for compliance with that order was subsequently extended. On 17 November 2020 the Anti-Dumping Review Panel served its evidence in redacted form. Those redactions concerned the proceedings of a Conference of 8 May 2020 and an annexure to an affidavit said to refer to information that is the sensitive confidential/commercial information of a number of entities involved in this litigation. A confidential court book is now sought to be filed.

2. The Court has since received a joint request from the parties to this litigation to make non-publication orders as would apply to the above. Those orders have been sought on the grounds that their making are necessary to prevent prejudice to the proper administration of justice. In support of that request Ms Rachel Deane, an AGS lawyer having the day to day carriage of the proceeding on behalf of the Anti-Dumping Review Panel, has filed an affidavit in which she deposes the background of the application and to the nature of the documents proposed to be the subject of those orders. Subject to the qualification I later note I am satisfied that that affidavit sufficiently identifies that, notwithstanding a primary objective of the administration of justice is to safeguard the public interest in open justice, the commercial sensitivity of what is contained in those materials as would otherwise be compelled to be disclosed warrants the Court concluding that the orders the parties jointly seek is necessary to prevent prejudice to the proper administration of justice.

3. I will make the orders sought.

4. However this application has been made to me in chambers. While I am satisfied the condition for the orders has been made out, necessarily that is on an uncontested basis. For that reason I will also order that any person entitled to be heard as to the making of an order for confidentiality pursuant to s 37AH(2)(d) and (e) have leave to apply on short notice for those orders to be discharged or varied.

I certify that the preceding four (4) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Kerr.

Associate:

Dated:       1 February 2021

SCHEDULE OF PARTIES

VID 409 of 2020
Respondents
Fourth Respondent:	SIEMENS ENERGY PTY LTD
Fifth Respondent:	SIEMENS TRANSFORMER (JINAN) CO
Sixth Respondent:	SIEMENS TRANSFORMER (WUHAN) CO LTD