FEDERAL COURT OF AUSTRALIA

Brown v Forestry Tasmania (No 2) [2006] FCA 468

CORRIGENDUM

ROBERT BROWN v FORESTRY TASMANIA

TAD 17 OF 2005

MARSHALL J

1 MAY 2006 (CORRIGENDUM DATED 3 MAY 2006)

HOBART

CORRIGENDUM

1                     On page 8 of the Reasons for Judgment in paragraph 25, the following should be deleted;

·        “on a computer disk before this material was”;

·        “The computer disk containing the information was then returned to the respondent.”; and

·        “The computer hard drive was also tendered as an exhibit.”.

2                     Paragraph 25 should read:

            “The respondent provided the Forestry material to the applicant, as ordered by the Court, in electronic form copied onto a computer hard drive by the applicant’s solicitors.  The Forestry material was used by the applicant in the preparation of the maps in Exhibit C in accordance with the undertaking.”

Associate:

Dated:              3 May 2006

FEDERAL COURT OF AUSTRALIA

Brown v Forestry Tasmania (No 2) [2006] FCA 468

PRACTICE AND PROCEDURE – confidentiality – application for confidentiality order pursuant to s 50 of the Federal Court of Australia Act 1976 (Cth) – whether proposed inspection amounts to “publication” – whether order necessary to prevent prejudice to the administration of justice – whether order necessary to protect the confidentiality and commercial value of the document used for business purposes of the respondent – whether order necessary to prevent collateral damage or disadvantage through misuse of information – whether order necessary given existing protection given to class of documents by O 46 r 6 of the Federal Court Rules 1979 (Cth)

PRACTICE AND PROCEDURE – application pursuant to O 15 r 18 of the Federal Court Rules 1979 (Cth) – whether supported on the evidence

Environmental Protection and Biodiversity Conservation Act 1999 (Cth)

Federal Court of Australia Act 1976 (Cth) s 50

Forestry Act 1920 (Tas) s 7

Federal Court Rules 1979 (Cth)O 15 r 18 and O 46 r 6

Computer Interchange Pty Ltd and Another v Microsoft Corp and Another [1999] FCA 198; (1999) 88 FCR 438, referred to

Johnston v Cameron [2002] FCA 948, followed

Minister for Immigration and Multicultural and Indigenous Affairs v X [2005] FCAFC 217; (2005) 147 FCR 243, applied

Herald & Weekly Times Ltd v Williams and Others [2003] FCAFC 217; (2003) 130 FCR 435, applied

ROBERT BROWN v FORESTRY TASMANIA

TAD 17 OF 2005

MARSHALL J

1 MAY 2006

HOBART

THE COURT ORDERS THAT:

1.                  The respondent’s motion dated 20 March 2006 is dismissed.

2.                  The respondent pay the costs of Ms Gee, Mr Agnew and Ms Meredith in respect of the motion.

3.                  The applicant’s costs of the motion are reserved.

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

REASONS FOR JUDGMENT

1.                  The Court is currently hearing an application by Senator Robert Brown under the Environmental Protection and Biodiversity Conservation Act 1999 (Cth).  Forestry Tasmania, the respondent in the proceeding, has applied to the Court, by way of motion, for a confidentiality order pursuant to s 50 of the Federal Court of Australia Act 1976 (Cth) in relation to certain parts of an exhibit, tendered by the Senator Brown.  The application, as described in the motion, specifically applies to maps reflecting provisional logging coupes over the next ten years in Wielangta and Tasmania generally.  Forestry Tasmania also seeks an order under O 15 r 18 of the Rules of the Court that undertakings as to confidentiality of its material continue to apply, notwithstanding the tender of relevant material to the Court. 

Background

2.                  On 15 September 2005, prior to the commencement of the hearing of the proceeding, the Court ordered that the respondent discover “Forestry material” to the applicant.  “Forestry material” included digital spatial data developed by the respondent, which the respondent claims to be commercially valuable and strategically confidential.  This order for discovery was made on the basis of the following undertaking, provided on 15 September 2005, by the applicant’s solicitor:

a)      the material provided by Forestry Tasmania, discovered pursuant to order 1 [of 15 September 2005], (“Forestry material”) is to be loaded onto a designated new computer provided by the applicant;

b)      the said computer be kept and be used exclusively in the office of Fitzgerald & Browne, or the office of counsel for the applicant, or in the Federal Court, and only for use in these proceedings;

c)      no copy of any Forestry material to be made, nor copies of any materials derived from or containing any part of Forestry material to be made, apart from copies to be tendered, or intended to be tendered, to the Court in these proceedings;

d)      the said computer and Forestry material to be kept safe and wholly confidential to the solicitor, counsel and experts, and Margaret Blakers, assisting the applicant in this matter; and

e)      the computer disk to be returned, with the Forestry material, to Forestry Tasmania at the conclusion of these proceedings.

3.                  Mr Dell, a witness for the applicant, relied upon this Forestry material to prepare a PowerPoint presentation consisting of a number of maps incorporating aspects of the Forestry material.  This PowerPoint was utilised by counsel for the applicant on 5 December 2005 in her opening submissions and projected onto a screen in open court.  On 8 December 2005, this PowerPoint presentation was tendered without objection as Exhibit C, in both electronic and hard copy, forming part of the evidence in chief of Mr Dell.  The digital spatial data comprising the Forestry material used to develop Exhibit C is generally not made available to the public, by the respondent, and is considered to be politically sensitive.

4.                  On 9 February 2006, Ms Helen Gee, Mr Mark Agnew and Ms Sally Meredith applied on behalf of the South-East Tasmania Forest Protection Group for the leave of the Court to inspect “maps tendered” and “specifically the 10 yr logging plan”.  This application was made by letter dated 9 February 2006 and addressed to the Registrar, accompanied by a completed “Media Request for Access to Documents” form.  Although Ms Gee, Mr Agnew and Ms Meredith are not media representatives, the Court accepts this application as being in an appropriate form.  The application was, in substance, an application for leave of the Court to inspect documents pursuant to O 46 r 6(4) of the Rules of the Court.  The application was clarified in Court as merely one to view the maps in question.

5.                  The application of Ms Gee, Mr Agnew and Ms Meredith is now supported by written submissions of counsel.  These submissions also purport to deal with the respondent’s motion.  Ms Gee, Mr Agnew and Ms Meredith are not parties or interveners in the current proceeding.  As such, whilst they may make submissions in support for their application to inspect documents, it is difficult to see any standing they would have to make submissions in response to the applications brought by the respondent.  However, the respondent served its motion on those persons and did not resist counsel being heard on their behalf on the motion.

6.                  The submissions filed by counsel on behalf Ms Gee, Mr Agnew and Ms Meredith, taken with the comments Mr Agnew made in Court on 14 February 2006, confirm that their application relates to certain maps contained in Exhibit C, being maps marked on the hard copies as number 8 and 17 of the PowerPoint presentation created by Mr Dell.  Those maps are headed, “Provisional Coupes in Tasmania”, being a map of all of Tasmania, and “Coupes Planned for Logging in the Next 10 Years” which is a map confined to the Wielangta Forest region.

7.                  On 21 March 2006, following the application by Ms Gee, Mr Agnew and Ms Meredith, the respondent filed its motion.  The motion seeks an order pursuant to s 50 of the Federal Court of Australia Act that further publication of the maps be restricted to members and staff of the Court, the parties, interveners, and their representatives and the staff of the transcript provider.  In its motion, the respondent also seeks an order pursuant to O 15 r 18 of the Rules of the Court that the undertaking made by the solicitor for the applicant on 15 September 2005 continue to apply to the Forestry material, notwithstanding any reading of the Forestry material to or by the Court, or any reference to the Forestry material in open Court.

The s 50 application

8.                  Section 50 of the Federal Court of Australia Act allows the Court to make an order forbidding or restricting the publication of particular evidence as is necessary in order to prevent prejudice to the administration of justice or the security of the Commonwealth. 

9.                  Counsel for the respondent submitted that the Court should make an order under s 50 where and to the extent necessary to protect any:

“(a)     trade secret or process, or other commercial confidence which is     inherent in the information;

(b)       substantial value inherent in the confidentiality of the information in the context of the litigation; and/or

(c)        substantive right of a party to maintain its right, title and interest in the confidentiality of the information.”  (Reference omitted)

10.              Counsel for the respondent said that the maps in question are produced from confidential information of substantial commercial value.  They contended that the damage that would flow to the respondent through wrongful or misleading use of the maps warrants the granting of the s 50 order.  They submitted that preventing access to the maps by Ms Gee, Mr Agnew and Ms Meredith would not be contrary to the administration of justice, on the basis that their request does not relate to the substantive proceeding.  It was also submitted that the publication of the maps already made was not significant in the scheme of the s 50 order sought.

11.              Counsel for the applicant contended that the respondent’s status as a public authority should preclude the acceptance of the s 50 claim.  Alternatively, it was contended that even if there is a proper claim for confidentiality over some source information, that fact provides an insufficient basis for an order under s 50.  Counsel for the applicant also submitted that the public policy principle of open justice outweighs the claims for confidence in the current circumstances.

12.              The nature of the order sought by the respondent is that the publication of the maps be restricted to certain parties and otherwise publication to the general public be prevented.  It is presumed that the effect of the order sought is to prevent the prejudice which may flow from Ms Gee, Mr Agnew and Ms Meredith or other members of the general public being granted leave to inspect the maps in Exhibit C.  The respondent has indicated no other basis on which the s 50 order might be required in the administration of justice.  This presumes that s 50, and the application brought by the respondent in reliance on it, are both wide enough to allow an order preventing inspection, where inspection is sought by a small number of individuals within the Court registry viewing, and not copying, a document.

13.              The Federal Court of Australia Act provides no internal guidance on the definition of “publication” in s 50.  There has there been no judicial consideration of the term “publication” in the context of this section.  In everyday parlance, “publication” means “the act of publishing”, and “publish” in its narrowest definition means “to issue, or cause to be issued, in copies made by printing or other processes, for sale or distribution to the public, as a book, periodical, map, piece of music, engraving, or the like”; see Macquarie Dictionary  (4th ed).  “Publish” has also been ascribed the broader meaning, “to make publicly or generally known”; see Macquarie Dictionary (4th ed); Shorter Oxford English Dictionary (5th ed).

14.              Although there has been no direct judicial consideration of the term “publication” in relation to s 50 applications, there appears to be a consensus emerging in the cases on s 50 that this section “deals expressly with the prevention of information given in open court from entering the wider public arena”; see Computer Interchange Pty Ltd and Another v Microsoft Corp and Another [1999] FCA 198; (1999) 88 FCR 438 per Madgwick J at [15].  The word “domain” has also been used interchangeably with “arena”; see generally Johnston v Cameron [2002] FCA 948; Minister for Immigration and Multicultural and Indigenous Affairs v X [2005] FCAFC 217; (2005) 147 FCR 243.  In each of these cases, the entering of particular evidence or the name of a party into “the wider public arena” or “domain” contemplates an act of publication and audience much broader than the limited inspection (and not copying) of documents at the Court Registry by Ms Gee, Mr Agnew and Ms Meredith.

15.              For the current purposes, where the maps may be inspected by a small and finite number of people within the confines of the Court registry, where there is no opportunity to copy or reproduce complex and detailed information, or in any way transfer specifics of this information into the wider public domain, this cannot amount to “publication” as contemplated by s 50 of the Federal Court of Australia Act.  As such, if the prejudice which the respondent seeks to prevent by way of the s 50 order is the viewing of the maps in the manner described, the application cannot be said to be necessary in order to prevent this prejudice.  On this basis the application for an order under s 50 must fail.

16.              If I am wrong about this form of inspection not amounting to publication, it is incumbent on me to consider whether the particular order sought is necessary to prevent prejudice to the administration of justice. 

17.              The underlying assumption of s 50 is the principle of open justice.  The fact that the order must be necessary to prevent prejudice suggests that the party seeking to invoke a power of suppression carries a very heavy onus; see Madgwick J in Computer Interchange at [16] and Weinberg J in Johnston v Cameron at [89].  As such, the Court must consider the alleged prejudice that would be suffered by the respondent should the s 50 order not be granted.  The Court must also determine whether the order is necessary to prevent this prejudice and whether this warrants a departure from the ordinary rule that open justice occur.

18.              The elements of administration of justice which the respondent seeks to preserve by way of the s 50 order include the privacy of allegedly confidential information and the commercial value of this information.  The respondent also seeks to avoid collateral damage or disadvantage arising from the possible abuse of this information. 

19.              Mr Martin Stone, a Manager (Resources and Business Systems) employed by the respondent, gave evidence that the digital spatial data used by Mr Dell to create Exhibit C is “commercially valuable and strategically confidential”.  Mr Stone also said that significant time, cost and specialised skills went into the preparation of the digital spatial data and that these datasets encapsulate significant intellectual property.  He also gave evidence that digital spatial datasets represent internal strategies and modelling exercises used to inform corporate, confidential decision-making.  However, as noted by Mr Stone, this digital spatial data has not been presented to the Court in its original vector format, but rather in digital images and medium sized paper maps.  According to counsel for the respondent, the real issue of concern is that the two maps the subject of this motion are “misleadingly labelled and improperly imply undue status to an internal modelling exercise, which is commercial-in-confidence and a working document produced by the respondent within and for the purposes of its business”. 

20.              That people may be mislead by labels on maps is not itself an issue which necessitates an order forbidding publication to prevent prejudice to the administration of justice.  Additionally, the potential injustice that arises from a misleading impression in relation a commercial-in-confidence working document used in running a business is also diminished by the fact that the respondent is a public authority, which although it engages in commercial activity, has no direct competitors. 

21.              Pursuant to s 7 of the Forestry Act 1920 (Tas), the objectives of the respondent are to optimise:

“(a)     the economic returns from its wood production activities; and

(b)        the benefits to the public and the State of the non-wood values of forests.”

These objectives do reflect a commercial element to the respondent’s role.  However, that element is focused on the public interest as well as the respondent’s commercial interest.  Moreover, there is no conclusive or persuasive evidence before the Court as to how publication of the maps would undermine either of these objectives in any real or practical way, other than the possible misrepresentation of the data in the public arena.  For these reasons, when considered in the context of the principle of open justice and given the fact that the information has already been read into open Court without objection, the “business purposes” of the respondent in the circumstances do not warrant a s 50 order to prevent prejudice to the administration of justice.

22.              The respondent’s alternate submission, that it should not suffer or be put at serious risk of collateral damage or disadvantage through the abuse of the maps, is not made out on the evidence before the Court.  Mr Stone gave evidence that the release of the maps bearing the labels applied by Mr Dell “would perpetuate and promulgate this misrepresentation, and create an opportunity for abuse”.  Presumably this “abuse” would be use of the information in a way designed to influence public opinion.  However, it is well established that embarrassing or damaging publicity will not amount to prejudice warranting a departure from the principle of open justice; see Merkel J, with whom Finn and Stone JJ agreed in Herald & Weekly Times Ltd v Williams and Others [2003] FCAFC 217; (2003) 130 FCR 435 at [34] – [36].  Further, the description of the maps as provisional plans rather than “indicative scenario models” or some such title cannot elevate the status of any potential use of this information to that of prejudice to the administration of justice.

23.              In any event, the maps which the respondent seeks to protect by this s 50 application are already protected from inspection without leave of the Court or a Judge, or without the permission of the Registrar by O 46 r 6(4) of the Rules of the Court.  As such, the Court will exercise its discretion to prevent access in circumstances where inspection would be prejudicial to the administration of justice.  There has been no suggestion by the respondent that the s 50 order is necessary to prevent prejudice caused by a party other than a third party.  Given the existing protection offered by O 46 r 6(4), the s 50 order is not necessary to prevent prejudice in respect to the administration of justice and the motion fails on this additional ground.

The O 15 r 18 application

24.              The respondent has also applied to the Court for an order under O 15 r 18 of the Rules of the Court to prevent the undertakings given by the applicant on 15 September 2005 from ceasing to apply.  This application is brought by the respondent “only out of an abundance of caution and in order to prevent there being any argument about this aspect of the matter”.  Counsel for the respondent submitted that it was the intention of the respondent, evident from the terms of the undertakings, that those undertakings ensue for its benefit during the proceeding and after the hearing of it.

25.              The respondent provided the Forestry material to the applicant, as ordered by the Court, in electronic form on a computer disk before this material was copied onto a computer hard drive by the applicant’s solicitors.  The computer disk containing the information was then returned to the respondent.  The Forestry material was used by the applicant in the preparation of the maps in Exhibit C in accordance with the undertaking.  The computer hard drive was also tendered as an exhibit.

26.              There is nothing before the Court to suggest that it was the intention of either party that the usual rule set out in O 15 r 18 not apply, that is, that the undertaking not to use the Forestry material for any purpose other than those of this proceeding cease to apply after Forestry material has been read to or by the Court, or referred to, in open Court.  The express terms of the undertaking deal with the use of the Forestry material and nothing put before me convinces me to exercise my discretion to alter these express terms and the usual application of such an undertaking.  If the applicant intends to seek to tend any further material obtained from the “Forestry material” then he should give notice to the respondent of his intention to do so in order that any dispute can be considered at the appropriate time.

27.              For the above reasons I dismiss that part the respondent’s motion brought under
O 15 r 18.

Order

28.              In light of the foregoing I will order as follows:

1.                  The respondent’s motion dated 20 March 2006 is dismissed.

2.                  The respondent pay the costs of Ms Gee, Mr Agnew and Ms Meredith in respect of the motion.

3.                  The applicant’s costs of the motion are reserved.

Associate:

Dated:              3 May 2006