Re Trade Practices Commission v Arnotts Limited; Arnott'S Biscuits Limited; Fledspac Pty Limited and the Dickens Corporation Pty Limited [1990] FCA 13 (1 February 1990)

FEDERAL COURT OF AUSTRALIA

Re: TRADE PRACTICES COMMISSION
And: ARNOTTS LIMITED; ARNOTT'S BISCUITS LIMITED; FLEDSPAC PTY LIMITED
and THE DICKENS CORPORATION PTY. LIMITED
No. G1316 of 1988
FED No. 16
Practice

COURT

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION
Beaumont J.(1)

CATCHWORDS

Practice - confidentiality of part of reasons for judgment - procedure to be followed.

HEARING

SYDNEY
1:2:1990

Counsel and Solicitors Mr. B.C. Oslington QC and

for Applicant: Mr. M.R.J. Ellicott instructed
by the Australian Government
Solicitor

Counsel and Solicitors Mr. C.A. Sweeney QC and
for first and second Mr. P. Comans instructed by
Respondents: Clayton Utz

Counsel and Solicitors Mr. N.C. Hutley instructed by
for third and fourth Minter Ellison
Respondents:

ORDER

Direct the solicitors for each of the parties, as soon as practicable, to provide counsel for the other parties and counsel for Westons with a confidential statement ("the confidential statement") of any advice proposed to be given to the party for which they act by way of explanation of the confidential parts of the reasons for judgment in the principal proceedings insofar as that explanation may, in the solicitors' opinion, be necessary in order that the party may know the essential reasons for the making of the orders in the principal proceedings.

Reserve liberty to any party and to Westons to apply on two days' notice in respect of the confidential statement.

At the expiration of three days after provision of the confidential statement, unless an application has already been made under 2. above, the solicitors giving the notice are to be at liberty to communicate the advice in the confidential statement to the party for which they act.

Make the usual order for confidentiality in respect of the confidential advice.

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

DECISION

(On application for an order that publication of part of the reasons for judgment given in the principal proceedings on 31 January 1990 be restricted)
On 31 January 1990, I made certain orders in the principal proceedings. Because some of the material referred to in the reasons may have been confidential, I gave the parties an opportunity to put submissions on the point. In order to assist the legal representatives to make submissions, a copy of the reasons was given to them on a confidential basis.

2. The general principles in this area were stated by Street C.J. in David Syme & Co. Ltd. v. General Motors-Holden's Ltd. (1984) 2 NSWLR 294 as follows (at pp 300-1):

"In litigation relating to confidential information such
as the present the taking of evidence in public can
present a special problem. There is the ever present
risk that the exuberance of counsel or the predicament
of a witness may let the cat out of the bag. In
appropriate cases the judge will decide to hear all or
part of the proceeding in camera. When it comes,
however, to the formulation of the reasons for judgment
and the form or order, there is no such risk. I
hesitate to state an absolute but I find it difficult
to conceive a situation in which the need for
confidentiality is such as to justify a total
non-disclosure of the judge's reasons and order.
So far as concerns the statement of reasons I should
have thought that it would always be possible for them
to be formulated in such general terms as would, in
deference to the deeply rooted principle I have
referred to earlier, convey an adequate account of the
litigation and the reasons underlying the orders.
Where it is absolutely necessary that the reasons
incorporate confidential material, it is commonplace
for that material to be identified by some neutral
description and to be set out in a document directed to
be sealed up with an appropriate endorsement and placed
with the papers. Incorporation in this way by
reference has been found an effective means of enabling
a trial judge to canvass confidential material
adequately while at the same time giving, as he is
obliged to, a public account of the litigation and the
reasons for his orders. Failure to adopt either this
or some other course which would enable such a public
account to be given will, in my view, almost
invariably, if not invariably, amount to error on the
part of the trial judge. The extent and the content of
the public account may vary according to the particular
case in hand. I repeat, however, that I find it
difficult to conceive any case in which it is
impossible to provide some statement by way of a public
account of the proceedings and the reasons."

3. On behalf of Arnotts, it is submitted that a restriction should be placed upon the references in the reasons to commercially sensitive material which had its source in documents produced on discovery by Arnotts under a claim for confidentiality. I accept this submission and propose to restrict publication of that material.

4. Counsel for Fledspac and Dickens stated that no restriction was sought in respect of the Nabisco material.

5. I have also referred in the reasons to material which had its source in documents produced on subpoena by Westons under a claim for confidentiality. It seems to me that the publication of this material ought also be restricted.

6. The question remains whether the parties themselves should have been subject to any restriction in respect of the confidential material in the reasons.

7. Clearly, a party should not be restricted in reading extract from material produced by that party. A separate question does, however, arise with respect to material produced by a trade competitor. It is necessary to balance competing aspects of the public interest. On the one hand, there is the public interest in maintaining confidences. On the other hand, there is the public interest in the due administration of justice, of which an important aspect is the right of a litigant to know the essential reasons for the decision. In the present case, it seems to me that these competing considerations can be resolved by granting leave to the solicitors for the parties to communicate to their respective clients so much of the confidential parts of the reasons for judgment as, in the opinion of the solicitors, is necessary in order that the client may know the essential reasons for the decision in the principal proceedings. In this connection, I direct the adoption of the following procedure: As soon as practicable, the solicitors for each of the parties should provide counsel for the other parties and counsel for Westons with a confidential statement of the advice proposed to be given to the client by way of explanation of the confidential parts of the reasons so far as that explanation may, in the opinion of the solicitors, be necessary in order that the client may know the essential reasons for the decision. I will reserve liberty to apply, on two days' notice, in this connection so that if any dispute arises out of the advice proposed to be given, the dispute can be dealt with. I will further direct that, at the expiration of three days after provision of the proposed advice, the solicitors serving the notice should be at liberty to communicate the advice to the client.