CATCHWORDS
PRACTICE - STAY - stay of production pending application for leave to appeal - confidential documents - principles to be applied - whether arguable case or substantial prospect need be shown
Federal Court Rules O52 r10(2)
Jennings Construction Limited v Burgundy Royale Investments Proprietary Limited (1986) 161 CLR 681 Refd
Elspan International Ltd v Aerospatiale Holdings Ltd (1992) 67 ALJR 177 Refd
Re Duke Group Ltd (In Liq) (1994) 68 ALJR 196 Refd
Manfal Pty Ltd (In Liq) v Trade Practices Commission (1990) 65 ALJR 256 Refd
Paringa Mining & Exploration Co PLC v North Flinders Mines Ltd (1988) 81 ALR 501 Refd
J v L&A Services Pty Ltd [1993] 2 Qd R 380 Refd
Sibuse Pty Ltd v Shaw (No 2) (1988) 13 NSWLR 125 Refd
Decor Corporation Pty Ltd v Dart Industries Inc (1991) 33 FCR 397 Refd
Mobil Oil Australia Ltd & McDonalds Australia Ltd v Guina Developments Pty Ltd
(unreported judgment of the Supreme Court of Victoria, 3 November 1995) Refd
Mackay Sugar Co-operative Association Ltd, ED & F Man Australia Pty Ltd, Mackay Refined Sugars Pty Ltd, ED & F Man New Zealand Limited and Mackay Refined Sugars (NZ) Limited v CSR Limited and New Zealand Sugar Company Limited
No QG 178 of 1994
Kiefel J Brisbane 6 March 1996
IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY
GENERAL DIVISION No. QG 178 of 1994
BETWEEN:
MACKAY SUGAR CO-OPERATIVE ASSOCIATION LTD
First Applicant
AND:
ED & F MAN AUSTRALIA PTY LTD
Second Applicant
AND:
MACKAY REFINED SUGARS PTY LTD
Third Applicant
AND:
ED & F MAN NEW ZEALAND LIMITED
Fourth Applicant
AND:
MACKAY REFINED SUGARS (NZ) LIMITED
Fifth Applicant
AND:
CSR LIMITED
First Respondent
AND:
NEW ZEALAND SUGAR COMPANY LIMITED
Second Respondent
JUDGE MAKING ORDER: Kiefel J.
DATE OF ORDER: 6 March 1996
WHERE MADE: Brisbane
MINUTES OF ORDERS
THE COURT ORDERS THAT:
1. The order of Spender J made on 23 February 1996 in the applicants' motion be stayed.
2. Cost be reserved.
NOTE: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY
GENERAL DIVISION No. QG 178 of 1994
BETWEEN:
MACKAY SUGAR CO-OPERATIVE ASSOCIATION LTD
First Applicant
AND:
ED & F MAN AUSTRALIA PTY LTD
Second Applicant
AND:
MACKAY REFINED SUGARS PTY LTD
Third Applicant
AND:
ED & F MAN NEW ZEALAND LIMITED
Fourth Applicant
AND:
MACKAY REFINED SUGARS (NZ) LIMITED
Fifth Applicant
AND:
CSR LIMITED
First Respondent
AND:
NEW ZEALAND SUGAR COMPANY LIMITED
Second Respondent
CORAM: Kiefel J.
DATE: 6 March 1996
PLACE: Brisbane
REASONS FOR JUDGMENT
By order of Spender J the applicants were
permitted access, restricted to named persons, to certain of the respondents'
documents in respect of which a claim for privilege for production had been
made based upon the need to preserve their confidentiality. The documents fell into five categories which
may generally be described as relating to pricing, costings, supply and
marketing and negotiations with customers.
As their description suggests it was claimed that they were commercially highly
sensitive and there was a need to keep them secret from the applicants who are
direct competitors.
The information was found by his Honour to be truly confidential, but it might be inferred from his Honour's Reasons that disclosure was necessary for the conduct of the applicants' case. There is one finding of fact indicative of such an approach. Nevertheless, the respondents contend that his Honour applied a test or tests different from that requiring considerations of necessity which it was conceded was the correct test. In his Reasons his Honour did advert to degrees of sensitivity of documents including a reference to those immediately current and those up to December 1995 and limited inspection to those not current. His Honour appears to have placed some weight upon the practical effect of disclosure of the documents to the named persons and raised the question whether that might be said to truly render them no longer confidential.
The respondents will seek the leave of the Full Court to appeal from his Honour's orders, they being interlocutory. It is hoped that that application and the appeal itself might be heard together and in the next Full Court sittings in April although, of course, it cannot be assumed that that course will be followed. Nevertheless, the respondents have chosen to apply to the appeal court for leave and not to a single judge, a course which is clearly open to them under O52 r10(2). Were I of the view, however, that the applicant suffered any degree of prejudice by reason of the question of leave being outstanding for a time, Mr Doyle, Senior Counsel for CSR, indicated that a shorter course would be taken. It does not seem to me however that that will be necessary.
To decline a stay would result in disclosure and a loss of confidentiality of the documents even though it might be said to follow from his Honour's reasons that the seriousness of that may be debateable. In any event I do not think it could be doubted that the appeal, if successful, would not remedy what confidence had been lost and whilst the applicants offered to further limit access at least until the hearing, that would still permit the Chief Executive Officer of Mackay Sugar to access to the information. It seems then that the exercise of the power to grant a stay of the order may be appropriate subject, however, to other relevant considerations: see Jennings Construction Limited v Burgundy Royale Investments Proprietary Limited (1986) 161 CLR 681, 685.
Of the matters listed for consideration by Brennan
J in that case, those as to whether the applicants would suffer prejudice and
those affecting the balance of convenience arise, as does the first listed
consideration namely "whether there
is a substantial prospect that special leave to appeal will be granted". That phrase appears in some later reported
judgments without further elaboration:
see for example Elspan International Ltd v Aerospatiale
Holdings Ltd (1992) 67 ALJR 177, 178 and Re Duke Group Ltd (In Liq)
(1994) 68 ALJR 196, 197. Whilst a
first reading of it might suggest that something more than an arguable case for
leave is required, that is, something more weighty, I do not think that is borne
out by his Honour's later finding that the prospects there were not
"insubstantial." In Manfal
Pty Ltd (In Liq) v Trade Practices Commission (1996) 65 ALJR 256, 257
Toohey J proceeded upon the basis, as the concessions made permitted, that the
questions were fairly arguable: see also
Paringa
Mining & Exploration Co PLC v North Flinders Mines Ltd (1988) 81 ALR
501, 504-5; J v L&A
Services Proprietary Limited (1993)
2 Qd R 380 and Sibuse Pty Ltd v Shaw (No 2) (1988) 13 NSWLR 125, 129.
Whilst one might observe there would be some
differences in the criteria applied to special leave applications, that does
not suggest to me that the view to be reached concerning prospects of success
should differ. What must be required as
a minimum is that there be a decision arguably appealable, Paringa 505, although that is determined at
this point by whether there is an arguable case for leave. That is not to say that in every case that
will be sufficient. The approach taken
to the grant of interim injunctions may be apposite and may require an
applicant for stay to show, in some cases, for example where prejudice would be
suffered, that the prospects are more substantial. That does not arise in the present case. On the application for leave here, the
respondents would need to show that his Honour's judgment is attended by
sufficient doubt to warrant reconsideration or that substantial injustice would
result if leave were refused, Decor Corporation Pty Ltd v. Dart Industries
Inc (1991) 33 FCR 397, or
some other substantial basis to warrant an appeal. A possible matter of importance, namely, that
questions relating to disclosure of commercially sensitive documents has not
been commented upon at appeal court level, was urged upon me. I am not really persuaded that the view taken
by his Honour, which may be compared with that taken in Mobil Oil Australia Ltd &
McDonalds Australia Ltd v Guina Developments Pty Ltd, (unreported judgment of the Supreme Court
of Victoria, 3 November 1995), is one where general guidance can be provided by
an appeal court. It seems to me however
that the applicant for a stay has at least an arguable case for leave. I do not think it is necessary or appropriate
to go
further. The only real potential
prejudice will be suffered by the respondents and not the applicants, any delay
in disclosure not being of great significance in the action.
I certify that this and the preceding four pages are a true copy of the reasons for judgment herein of the Honourable Justice Kiefel.
Associate
Date: 6 March 1996
Counsel for the applicants: Mr JD Muir QC
Solicitors for the applicants: McCullough Robertson
Counsel for the respondents: Mr SL Doyle SC
Solicitors for the respondents: Clayton Utz
Date of Hearing: 28 February 1996
Place of Hearing: Brisbane
Date of Judgment: 6 March 1996
