Woodside Energy Ltd v Alinta Sales Pty Ltd

[2009] WASC 147

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA

IN CHAMBERS

CITATION:   WOODSIDE ENERGY LTD -v- ALINTA SALES PTY LTD [2009] WASC 147

CORAM:   LE MIERE J

HEARD:   20 MAY 2009

DELIVERED          :   28 MAY 2009

FILE NO/S:   ARB 10 of 2008

MATTER                :The Commercial Arbitration Act 1985

BETWEEN:   WOODSIDE ENERGY LTD (ACN 005 482 986)

BP DEVELOPMENTS AUSTRALIA LTD
CHEVRON AUSTRALIA PTY LTD
SHELL DEVELOPMENT (AUSTRALIA) PTY LTD
BHP BILLITON PETROLEUM (NORTH WEST SHELF) PTY LTD
NORTH WEST SHELF GAS PTY LTD
Applicants

AND

ALINTA SALES PTY LTD (ACN 089 531 984)
Respondent
 

Catchwords:

Practice and procedure - Whether application should be heard ex parte - Whether application should be heard in closed court - Whether applicants and respondent should be able to attend hearing - Turns on own facts

Legislation:

Commercial Arbitration Act 1985 (WA)
Rules of the Supreme Court 1971 (WA), O 1 r 3A
Supreme Court Act 1935 (WA), s 16(1)(d), s 21(1)

Result:

Application refused

Category:    B

Representation:

Counsel:

Applicants:     Mr M C Goldblatt

Respondent:     Mr S J Davis

Subpoena Recipient       :     Mr D R Williams QC

Solicitors:

Applicants:     Freehills

Respondent:     Blake Dawson

Subpoena Recipient       :     Minter Ellison

Case(s) referred to in judgment(s):

Alinta Sales Pty Ltd v Woodside Energy Ltd [2008] WASC 304

Australian Securities and Investments Commission v P Dawson Nominees Pty Ltd [2008] FCAFC 123; (2008) 169 FCR 227

CSR Ltd v Cigna Insurance Australia Ltd (1996) 189 CLR 345

P Dawson Nominees Pty Ltd v Australian Securities and Investments Commission (No 2) [2009] FCA 413

P Dawson Nominees Pty Ltd v Multiplex Ltd [2007] FCA 1659; 65 ACSR 239

LE MIERE J: 

Introduction

1. Alcoa of Australia Ltd (Alcoa) moves the court for an order that the subpoena served on it by the applicants be varied to entitle Alcoa to withhold from production certain documents (the Contested Documents).  Alcoa further moves for its application to be heard in closed court and any person not instructed to attend by Alcoa or employed by the court be excluded from attendance at the hearing.  Alcoa also moves that appropriate orders be made in relation to maintaining the confidentiality of the transcript of the hearing and that the affidavits and materials delivered to the court in support of its application, together with any copies made by the court, be returned to Alcoa's solicitors at the conclusion of the hearing.

2. The subpoena was issued pursuant to an order made by Beech J which his Honour made upon the application of the applicants by originating motion dated 5 December 2008.  The proceedings before Beech J and the matters giving rise to those proceedings are conveniently summarised by his Honour in his reasons for decision published on 22 December 2008:  Alinta Sales Pty Ltd v Woodside Energy Ltd [2008] WASC 304. The following summary of matters leading up to the making of the order for leave to issue the subpoena is taken from his Honour's reasons for decision.

3. In the proceedings before Beech J the applicants sought leave to issue subpoenas to a number of companies, including Alcoa, requiring them to produce documents before the date for hearing of an arbitration.  The applicants and respondent are parties to the arbitration.

The arbitration

1. The parties to these proceedings are parties to an agreement (the Agreement) dated 22 December 1998 under which the applicants, who I will refer to as the North West Shelf Joint Venture (NWSJV) agreed to sell or supply gas to the respondent who I will refer to as Alinta.  Clause 14 of the Agreement provides a process by which each of the sellers and the buyer can initiate a review of the price payable by the buyer for the gas sold under the Agreement, where the party believes that the prices payable under the Agreement no longer reflect the market value of the gas sold under the Agreement.

2. The sellers, NSWJV, served on the buyer, Alinta, a price review notice pursuant to cl 14 of the Agreement requesting a review of the prices and price related terms for the gas sold under the Agreement.  The parties were unable to reach agreement on revisions to the prices and price related terms.  As a result, either party was entitled to refer the matter to arbitration under the Commercial Arbitration Act 1985 (WA) (the Act). The NWSJV referred the matter to arbitration. The Honourable M J McHugh AC QC has been appointed as arbitrator. The arbitration is to proceed in accordance with the procedures stipulated in cl 24 of the Agreement, including the exchange of pleadings, discovery, exchange of witness statements, experts' reports and written and oral submissions. Beech J held that there is an arbitration agreement within the meaning of s 17 of the Act and Alcoa does not challenge that finding.

The subpoena applications

1. The NWSJV and Alinta agreed, in the context of the arbitration, that a substantial number of third parties hold, or are likely to hold, documents which are, or may be, relevant to the factors to which, under cl 14, the arbitrator is to have regard when determining new prices for the gas sold under the Agreement.  The NWSJV and Alinta conferred and agreed a list of proposed subpoena recipients who they believed were likely to be in possession of relevant documents.  Each proposed recipient was allocated either to NWSJV or to Alinta so that one only of the parties would contact the proposed recipient and, if necessary, apply for leave to issue a subpoena to the recipient.  In that way Alcoa was allocated to NWSJV and NWSJV issued the notice of originating motion which sought leave to issue subpoenas on, amongst others, Alcoa to produce the documents specified in the notice to the arbitrator.

2. The parties to the arbitration also conferred in relation to an agreed form of advanced notice by way of letter which was sent to all proposed subpoena recipients.  The standard letter explained the existence and broad subject matter of the arbitration.  It identified the factors listed in cl 14 as matters relevant to the arbitration.  The letter enclosed a form of subpoena intended to be served on the recipient party if necessary, subject to first obtaining leave, together with proposed confidentiality orders in relation to the documents to be produced.  The letter referred to the confidentiality regime, saying that it was broadly consistent with the regimes sanctioned in previous similar arbitrations.

3. A number of proposed subpoena recipients raised matters of concern to them by letters to the solicitors for the applicants.  Following conferral between the solicitors for the applicants and the solicitors for the respondent, the applicants' solicitors sent a further letter dated 21 November 2008 to the proposed recipients.  The letter enclosed the relevant clauses of the Agreement.  An amended version of the subpoena for each proposed recipient, with some narrowing of the categories of documents sought, was attached.

The issues in the arbitration

1. Clause 14.6(e)(i) of the Agreement provides that the arbitrator must have regard to the market price of Other Energy (defined as 'other energy forms or substitute products') and Costs, including operating, maintenance, transportation and capital costs, of using Other Energy as compared with the costs of using gas.  One or both of the parties contend, in the arbitration, that the relevant forms of Other Energy include coal, liquefied petroleum gas, liquefied natural gas, fuel oils, diesel and electricity from any source, including renewable sources (such as solar or wind) for industrial or commercial use (but excluding transport in the case of fuel oil and diesel) in Western Australia.

Proceedings before Beech J

1. Beech J heard the applications of the NWSJV and Alinta on 17 December 2008.  Neither Alcoa nor any other proposed subpoena recipient was represented at that hearing.  On 17 December 2008 Beech J granted leave to issue subpoenas to a number of subpoena recipients, which did not include Alcoa.  Alcoa had filed a notice of grounds of objection.  Beech J ordered that any proposed recipient of a subpoena who had filed a notice of grounds of objection, which included Alcoa, file and serve any submissions and affidavit in opposition to the application for leave to issue a subpoena, that the applicants file any submissions and affidavits in response and that the applications for leave to issue subpoenas to the relevant companies, including Alcoa, be heard at a hearing commencing on 9 February 2009.

2. The applicants' solicitors then conferred with Alcoa's solicitors.  The applicants' solicitors and Alcoa's solicitors reached agreement as to the form of a subpoena to be issued to Alcoa.  On 11 February 2009 Beech J made an order that the applicants have leave to issue subpoenas to, amongst others, Alcoa in the form specified to produce the documents specified to the arbitrator subject to, and upon the terms stated in, the order.

3. The order of 11 February 2009 made the following provisions for dealing with confidential documents:

   5.The documents required to be produced by each of the addressees be produced to the Arbitrator by giving them or causing them to be delivered to Messrs Corrs Chambers Westgarth …

   6.Unless the addressee objects to inspection at the time of producing the documents, the Applicants and the Respondent have liberty to inspect and copy such of the documents produced in answer to each subpoena as are not accompanied by a written claim that the documents are confidential and commercially sensitive (Confidentiality Claim).

   7.In the event that the addressee objects at the time of production to inspection, the objection is to be determined by the Arbitrator in accordance with the procedure determined by the Arbitrator.

   8.With respect to any document produced in answer to any subpoena which is subject to a Confidentiality Claim, the orders in the attached Schedule 2 shall apply, unless and until such claim is disallowed upon any application made under paragraph 5 of the Confidentiality Regime, and subject to any amendments to:

   (a)the list of Nominated Individuals in Annexure A to the Confidentiality Regime in the attached Schedule 2 …

   (b)the list of Excluded Nominated Individuals in Annexure C to the Confidentiality Regime in the attached Schedule 2 …

   9.Subject to paragraph 8(b) above, for the purposes of the Confidentiality Regime, the persons named in Annexure C to the Confidentiality Regime in the attached Schedule 2 to these orders are Excluded Nominated Individuals with respect to the Confidential Documents and Confidential Information of the persons in that Schedule.

   10.Each of the Applicants, the Respondent and [Alcoa] has liberty to apply (including as to costs) in relation to the orders in paragraphs 6 to 9 above and generally on two business days notice.

4. Schedule 2 sets out the Confidentiality Regime.  The schedule provided that in the case of documents produced by the subpoenaed party in relation to which a claim of confidentiality is made access only be granted in accordance with the terms of the Confidentiality Regime to the Nominated Individuals and in relation to Restricted Confidential Documents as defined in the Confidentiality Regime to First Stage Nominated Individuals and upon the Nominated Individual executing a Confidentiality Undertaking in the prescribed form.  The Nominated Individuals identified in the annexure include counsel, solicitors and experts retained by the NWSJV and by Alinta.  The First Stage Nominated Individuals include senior and junior counsel, solicitors and experts retained by Alinta.

Steps leading to present hearing

1. On 14 April 2009 Alcoa's solicitors delivered to the associate to Beech J, but did not file or serve, an ex parte motion for an order that the subpoena served on Alcoa be varied to entitle Alcoa to withhold from production the Contested Documents.  The motion sought that notice to the applicants be dispensed with and that it be heard ex parte.  The motion was delivered under cover of a letter of 14 April 2009 which stated:

   This motion has been delivered directly to the Court and has not been filed; this is due to the nature of the application which the Subpoena Recipient does not wish to be made available on the public record.  The reasons for this are dealt with in affidavits which will be provided to His Honour in a sealed envelope before the hearing of the motion.

2. The unfiled motion was then referred to me.  I directed Alcoa to file and serve upon the applicants and the respondent its motion but not the confidential affidavits delivered to the court (the Confidential Affidavits).  I directed that whether Alcoa's application should be heard in closed court in the absence of the applicant and the respondent and their legal representatives should be determined at a preliminary hearing.

The present hearing

1. At this preliminary hearing Alcoa, the NWSJV and Alinta were each represented by counsel.  Senior counsel for Alcoa formally read and relied upon an affidavit affirmed on 15 May 2009 by Michael Shaw, the Energy Services Manager for Alcoa, and an affidavit affirmed on 19 May 2009 by Karen Anne Navaratnam who describes herself as the corporate solicitor for Alcoa.  The Confidential Affidavits have not been filed or served and were not read by senior counsel for Alcoa or otherwise relied upon at the hearing.  I am informed that those affidavits contain copies of the Contested Documents ‑ that is, the documents which Alcoa wishes to withhold from production to the arbitrator.

The evidence

1. In his affidavit of 15 May 2009 Mr Shaw gives evidence of Alcoa's operations in Western Australia.  Alcoa operates two bauxite mines, three alumina refineries, two port operations and holds an interest in the Dampier to Bunbury natural gas pipeline.  Alcoa is the single largest purchaser of gas in Western Australia.  It purchases approximately 30% of the gas sold in Western Australia each year.  Woodside Energy Ltd on behalf of NWSJV supplies the bulk of Alcoa's gas.  Alcoa also purchases a smaller volume of gas from the joint venture operated principally by Apache Energy Ltd (Apache) and Santos Ltd (Santos).  These are the only two entities which are capable of supplying the large volumes of gas required by Alcoa to conduct its alumina business.  Approximately 97.7% of WA's natural gas is produced by the NWSJV or Apache.  Mr Shaw says that the closed nature of the WA gas market means that there is little competition and few alternatives for a buyer, such as Alcoa, to purchase gas from competitors to NWSJV.

2. Mr Shaw says he is concerned that as a result of the nature of the gas market in WA and the small number of people who work in the industry there is a real risk that if confidential information is disclosed to counsel and instructing solicitors of the applicants and respondent then that information may be inadvertently disclosed by those individuals.  Mr Shaw says that there is only a small group of solicitors who conduct work in the area of oil and gas litigation and the negotiation of gas supply arrangements.  Senior counsel for NWSJV, Mr Zelestis QC, has also acted for Alcoa in respect of gas transmission issues, albeit not directly in respect of a gas price negotiation.  Mr Jon Carson of Blake Dawson acted for Alinta in the negotiation of contracts with Alcoa concerning the Dampier Bunbury pipeline sale, a system use gas sale agreement and certain cogeneration arrangements.  Mr Paul D Evans, the partner of Freehills with conduct of the arbitration on behalf of NWSJV, also acts or has acted for Santos and Apache.  Mr Shaw says that his concern, and the concern of Alcoa, is that any person who acquires knowledge about Alcoa's confidential information as a result of this application to withhold production of documents could engage in negotiations against Alcoa in the future and could inadvertently use knowledge gained in the course of this application against Alcoa.  Alternatively, they may be engaged to provide advice to a seller even though they may not be directly involved in the negotiations.  In that case, Mr Shaw says, Alcoa would not know the identity of the person giving advice and would have no opportunity to protect its own interests by objecting to that practitioner's involvement.  Mr Shaw also believes that it would be difficult for a solicitor who has access to confidential information to provide advice to, or seek instructions from, their client without risking the inadvertent disclosure of that confidential information.

3. In her affidavit of 19 May 2009 Ms Navaratnam explains that at the time the terms of the subpoena to Alcoa were agreed between the parties Alcoa had not reviewed the documents falling within the terms of the subpoena.  Alcoa has produced 79 documents pursuant to the subpoena, including confidential gas sale agreements, research regarding the gas market procured by Alcoa from external consultants and confidential internal communications with Alcoa senior management.  The documents already produced contain commercially sensitive information, including information relating to Alcoa's gas strategies, which is held in the strictest of confidence by Alcoa.  Ms Navaratnam says that she did not become aware of the significance of the Contested Documents until some time after the issue of the subpoena.  When the significance of the Contested Documents had been ascertained and discussed, Alcoa informed the NWSJV's solicitors that it objected to their production by a letter of 27 March 2009.  In that letter Alcoa's solicitors say:

   … Alcoa has identified one further internal High Level document and two supporting documents, which it considers may be caught by the subpoena.  In Alcoa's view, these internal documents will be of little use to the Arbitrator in determining the issues in dispute between the parties, however, the release of the information which they contain is so prejudicial to Alcoa's commercial interests in the Western Australian gas market that it ought not to be produced.

   Alcoa does not consider that it is appropriate for it to be disclosed even to the Arbitrator at first instance, even in a redacted form.

4. There is no further evidence concerning the nature or contents of the Contested Documents.  There is evidence in the Confidential Affidavits of the nature and contents of the Contested Documents and of the harm that would be done to Alcoa's commercial interests if those documents were disclosed to the applicants, the respondent, their counsel, solicitors or experts or indeed to the arbitrator.  Those affidavits have not been delivered to the applicants and the respondent and I have not considered them for the purposes of determining this preliminary issue.

Alcoa requests ex parte hearing

1. Alcoa submits that it is entitled to an ex parte hearing in this court to explain the reasons why it seeks to withhold the Contested Documents from production pursuant to the subpoena.

2. Alcoa submits that to allow counsel and instructing solicitors for NWSJV and Alinta to hear the substance of the application and to be privy to supporting documents would effectively render the application itself nugatory.  The very reason for the application is to preserve the absolute confidentiality of the Contested Documents.  The absolute confidentiality of the documents will be lost if the substance of the documents is disclosed as a result of the application.  Counsel submits that if the substantive application is not heard ex parte, confidential information will be disclosed to counsel and instructing solicitors who presently represent Alcoa's counterparties in an oligopoly gas market and who may act against Alcoa's interests in the future.

Power to conduct closed hearing

1. Neither the applicants nor the respondent submitted that the court does not have power to hear Alcoa's application in the absence of the applicants and the respondent.

1. Senior counsel for Alcoa submits that the court has the inherent power to administer justice in its control and supervise the conduct of proceedings to protect the interests of non‑parties to litigation such as in this case. Senior counsel submits that this general power is confirmed in s 16(1)(d) of the Supreme Court Act 1935 (WA) where it provides that the Supreme Court:

   … shall be a court of equity, with power and authority within Western Australia and its dependencies - 

   (i)to administer justice, and to do, exercise and perform all acts, matters, and things necessary for the due execution of such equitable jurisdiction …

   Furthermore, senior counsel submitted that s 21(1) of the Supreme Court Act provides that the court's jurisdiction under the Act:

   … be exercised, so far as regards procedure and practice, in the manner provided by this Act and the rules of court; but where no provision, or no appropriate provision, as to the exercise of any such jurisdiction is contained in this Act or in the rules of court, such jurisdiction shall be exercised as nearly as may be in the same manner as the same might have been exercised if this Act had not passed, or in such manner as the Court or a judge may in each case direct.

   Order 1 r 3A of the Rules of the Supreme Court 1971 (WA) provides that the 'inherent power of the court to control the conduct of a proceeding is not affected by [the] rules'.

2. There are many judicial statements to the effect that courts exercising the jurisdiction such as jurisdiction exercised by this court have an inherent or implied power to prevent its own processes being used to bring about injustice:  see for example CSR Ltd v Cigna Insurance Australia Ltd (1996) 189 CLR 345, 391.

3. On the other hand the court must exercise its powers in a manner which is consistent with the essential requirements of a court or with the nature of judicial power.  It would be inconsistent with the exercise of judicial power for the court to act in a manner contrary to natural justice.  A fundamental aspect of natural justice is that a judge should not hear a matter in the absence of a party or decide a matter after taking into account material not disclosed to a party.  Nevertheless, the court, out of necessity, will from time to time exercise its powers ex parte.  I find that the court has the power to hear Alcoa's application in the absence of the applicant and the respondent and without disclosure to them of material upon which the court is asked to act.

4. The court should only exercise its powers ex parte when it is necessary in the interests of justice to do so.  It will be a rare case where the court will exercise its power to set aside, or vary the terms of, a subpoena in the absence of the party who caused the subpoena to be issued.

The procedure advocated by Alcoa

1. The procedure advocated by Alcoa was followed by Goldberg J in P Dawson Nominees Pty Ltd v Multiplex Ltd [2007] FCA 1659; 65 ACSR 239. In that case the applicant brought representative proceedings against Multiplex for alleged failure by Multiplex to meet continuous disclosure obligations of the ASX when it encountered substantial delays and cost increases in the building of the Wembley National Stadium. It was alleged that Multiplex had information that was material to the share price and ought to have been disclosed to the ASX. The Australian Securities and Investments Commission (ASIC) undertook an investigation of the events and issues arising from the stadium project with the result that Multiplex entered into enforceable undertakings without admission of failure to disclose pursuant to s 674 of the Corporations Act 2001 (Cth) but with findings by ASIC that it had so contravened the Corporations Act. In the course of the representative proceedings against Multiplex on behalf of some shareholders, the applicant issued subpoenas on ASIC seeking transcripts of interviews conducted by ASIC in the course of its investigation. ASIC refused to produce the documents on a number of grounds including public interest immunity privilege. ASIC sought that the argument in relation to public interest immunity privilege should be held in camera, in the absence of the parties to the proceeding, pursuant to s 17(4) of the Federal Court of Australia Act 1976 (Cth) and sought orders pursuant to s 50 of the Federal Court Act forbidding the publication of the confidential affidavits filed by it, even to the legal representatives of the parties to the proceedings. The effect of the orders sought by ASIC was that the hearing of its objection to the production of the transcripts and the documents on the ground of public interest immunity privilege would be made ex parte, in camera and with no other party or person present to put opposing submissions. Goldberg J dealt with the application as follows:

   I was extremely unhappy about adopting the procedure proposed by ASIC but, after giving the applicant and the respondents the opportunity to make submissions in relation to ASIC's proposal for the procedure for the hearing of its public interest immunity privilege claim, I reluctantly acceded to ASIC's submissions. My reasons for making orders pursuant to ss 17(4) and 50 of the Federal Court of Australia Act follow.

   The power given to the court under s 50 of the Federal Court of Australia Act to forbid or restrict the publication of evidence should only be exercised in exceptional circumstances. Section 50 makes it clear that the power should only be exercised in order to prevent 'prejudice to the administration of justice or the security of the Commonwealth'. In the present case ASIC's concerns relate to prejudice to the administration of justice. It is a fundamental principle of the administration of justice in Australia that the administration of justice be open justice. When considering whether to exercise the power given by s 50 a court must bear in mind the need to do justice between all relevant parties, taking as its initial position the principle of open justice. The manner in which a court should approach an application under s 50 of the Federal Court of Australia Act to restrict the publication of evidence was considered by a Full Court of the Federal Court in Applicant Y v Australian Prudential Regulation Authority [2005] FCAFC 222. The Full Court said (at [14] and [15]):

   'The public interest, that the Court should effectively endeavour to achieve in considering the exercise of power under s 50, is the object of doing justice between the parties. That is the function that the Court is appointed to discharge. Where refusal to make an order might well undermine or defeat the purpose of achieving justice between the parties, and disappoint the public interest in having the Court deal responsibly with the affairs of citizens, it may be appropriate to make an order pursuant to s 50 …

   The Court must, however, take into account what s 50 does not explicitly state, but is the underlying assumption upon which it is based, namely, the principle of open justice. The importance of the principle of open justice is not in doubt. On the other hand, the possibility of prejudice to the administration of justice must be weighed against the public interest in maintaining open justice. Although the principle of open justice is of great importance in exercising the discretion under s 50, it is not necessarily the whole weight of that principle that must be placed on the scales. The derogation from the principle that might be involved in making an order under s 50 may be very great, or it might be very small. The degree of derogation from the principle involved in the proposed order is an important matter to be considered in balancing the principle against possible prejudice to the administration of justice … [citation omitted]

   The basis upon which the court should approach an application under s 17(4) of the Federal Court of Australia Act is similar to the approach it should take in relation to an application under s 50. The power to order the exclusion of persons from a hearing should only be exercised in exceptional cases. It is clear from s 17(4) that that power should only be exercised in circumstances where not to exercise it would be 'contrary to the interests of justice'. The primary principle is that the principle of open justice is to be observed in that court hearings should be open to the public and only closed where the interests of justice require that closure. As Earl Loreburn said in Scott v Scott [1913] AC 417 at 445:  'The inveterate rule is that justice shall be administered in open Court'.  His Lordship accepted that it was appropriate in the interests of justice that the doors of the court be closed when the subject matter of the action would be destroyed by a hearing in open court [18] ‑ [20].

   …

   The applicant submitted that ASIC should disclose in open hearing what was the reasoning process to support the protection of the information sought by ASIC without disclosing what that information was. It submitted that it should, to the extent possible, identify the reasons why the information was being withheld without disclosing the information.  The difficulty with acceding to that submission is that exposing the reasoning process would inevitably disclose the information sought to be protected.  There were also a number of matters in respect of the claim for public interest immunity privilege raised in the confidential material which I wanted to discuss with counsel for ASIC but it was not possible to do this in open session without exposing the information that ASIC sought to protect.

   The difficulty with which I was faced in this application by ASIC was that in order to determine whether orders should be made under ss 17(4) and 50 of the Federal Court of Australia Act I must have regard to the confidential affidavits (not served on the parties) filed by ASIC and its confidential submissions (not served on the parties) in order to understand the basis for the application. I reached the conclusion that in order to preserve the subject matter of ASIC's claim for public interest immunity privilege I was compelled to make orders under ss 17(4) and 50 of the Federal Court Act in order to avoid prejudice to the administration of justice. If I had not made such orders I would have destroyed the basis for ASIC's claim. The hearing of ASIC's claim in the presence of the parties to the proceeding would have disclosed the very subject matter and issues which ASIC claimed were protected from disclosure by the public interest immunity privilege. I therefore heard ASIC's application in camera in the absence of the parties to the proceeding [22] - [23].

   After hearing argument from ASIC in the absence of the other parties Goldberg J rejected ASIC's objection to the production of a limited number of documents which ASIC claimed to be covered by public interest immunity.  His Honour's reasons for rejection of the claim were contained in a confidential appendix to the reasons which were published only to ASIC.

2. ASIC applied for, and was granted, a stay on production of the subpoenaed documents pending a possible appeal.  ASIC then filed a motion seeking leave to appeal and seeking the imposition of certain confidentiality orders.  The parties, in preparation for the appeal, agreed to the imposition of a Special Counsel Regime.  In essence, the regime allowed Special Counsel appointed by the first applicant and Multiplex to have access to confidential material filed by ASIC on the leave application that included the disputed documents and the confidential appendix to the reasons of the judge at first instance.  Special Counsel signed confidentiality undertakings that they would not disclose any of the confidential material to any person - including their instructing solicitors and clients.  The regime also provided that Special Counsel would take no further part in the proceeding should ASIC's claim for public interest immunity be upheld on appeal: P Dawson Nominees Pty Ltd v Australian Securities and Investments Commission (No 2) [2009] FCA 413, [26].

3. The Full Court subsequently upheld the appeal and held that the documents were protected from production by public interest immunity:  Australian Securities and Investments Commission v P Dawson Nominees Pty Ltd [2008] FCAFC 123; (2008) 169 FCR 227. The reasons for judgment of the Full Court made public, for the first time, that ASIC based its claim of public interest immunity solely on the basis that production of the documents and transcripts would reveal the identity of informers. The Full Court concluded its reasons with the following:

   His Honour was asked by ASIC to hear its application for its public interest immunity claim ex parte, in camera and with no other party or person present.  His Honour was 'extremely unhappy' about adopting this procedure but 'reluctantly acceded' to ASIC's submissions (at [18]).  His Honour's reasons, apart from a brief introduction, were not published.

   ASIC asked us to adopt the same procedure on this appeal.  We decline to do so.  Not to publish our reasons would be contrary to the public policy behind our decision, which is at least as much to clarify the law for potential future informers as it is to protect the informer(s) in this case.  Moreover, in none of the reported cases referred to in these reasons did the court adopt the procedure sought by ASIC [63] ‑ [64].

4. After the publication of the Full Court's reasons the applicants filed a notice of motion by which they sought leave to inspect and copy the documents held by the Full Federal Court to be protected by public interest immunity.  Multiplex and ASIC submitted that the motion should be dismissed as an abuse of process.  Goldberg J determined as a threshold issue that the applicants' motion was not an abuse of process and that they were entitled to proceed with it and have it determined on its merits.  The applicants had demonstrated that there was new material or new evidence which was not reasonably available to them at the time the original orders were made on 2 November 2007.  The applicants and their solicitors were unaware until the delivery of the Full Court's judgment on 4 July 2008 of the basis of ASIC's claim for public interest immunity and, in particular, that the claim rested solely on the ground of informer privilege.  On 5 September 2005 ABC Television broadcasted a Four Corners programme entitled 'Road to Wembley'.  In that programme the Multiplex accounting group general manager was identified as having 'blown the whistle' and contacted ASIC.  The applicants' solicitor was aware at the time of the original hearing before Goldberg J that the fact that Multiplex's accounting group general manager had 'blown the whistle' on Multiplex had been published in the national print and electronic media.  However, due to the procedures adopted in the hearing before Goldberg J and in the Full Federal Court, combined with the fact that the applicants and their solicitors were unaware that ASIC's objection to the production of documents was based on informer privilege, the applicants were not in a position to draw those matters to the court's attention at the earlier hearings:  P Dawson Nominees Pty Ltd v Australian Securities and Investments Commission (No 2), [94].

5. The protracted proceedings in the P Dawson Nominees Pty Ltd v Australian Securities and Investments Commission (No 2) litigation concerning the subpoenaed documents is a salutary reminder of the difficulties inherent in applications, like that made by Alcoa, being heard with no other party present and on the basis of evidence disclosed to no other party.

6. To allow counsel and instructing solicitors for NWSJV and Alinta to see copies of the Confidential Documents in the course of this application would, of course, render the application wholly or partly nugatory.  However, I am not satisfied that it is necessary in the interests of justice that Alcoa's application should proceed in the absence of the other parties and without any affidavit material in support of the substantive application being disclosed to the other parties.

7. In P Dawson Nominees Pty Ltd v Multiplex Ltd ASIC at least identified the documents that it sought to withhold from production on the ground of public interest immunity.  Alcoa has not gone that far.  I am not persuaded that it is not possible for Alcoa to provide a description of each of the Contested Documents without disclosing the confidential information contained within them.  I am not satisfied that it is not possible for Alcoa to identify why the relevant information within the Contested Documents is confidential and why disclosure of it to restricted counsel and the arbitrator would cause commercial damage to Alcoa without disclosing the confidential information.

8. I refuse Alcoa's application that its application to vary the subpoena so that it does not have to produce the Contested Documents be heard in the absence of the applicants and the respondent.  Alcoa's application should proceed on the following basis.  Alcoa should file an affidavit or affidavits identifying:

   a.the Contested Documents;

   b.the nature of the confidential information contained within those documents;

   c.the reasons why the information is confidential and is being withheld; and

   d.the reasons why disclosure of the confidential information to the arbitrator, the applicants and the respondent in accordance with the confidentiality regime contained within the order of Beech J of 11 February 2009 would harm Alcoa;

   to the extent possible without disclosing the confidential information.

9. In determining Alcoa's substantive application the court may have to consider the balance between the competing interests of the applicants to have the Contested Documents produced to the arbitrator and the interests of Alcoa to keep its documents confidential.  The nature and content of the Contested Documents may be important in deciding the matter.  It may be appropriate for the court to inspect the Contested Documents.  If that is so, the court may have to inspect the documents without them being inspected by the applicants, the respondent or their representatives.  Alternatively, the applicants and the respondent may consider a special counsel regime of the sort adopted in the appeal to the Full Federal Court in Australian Securities and Investments Commission v P Dawson Nominees Pty Ltd.  However, those are matters that will have to be resolved in the course of hearing Alcoa's substantive application.