FEDERAL COURT OF AUSTRALIA

Sportsbet Pty Ltd v Harness Racing Victoria (No 3) [2010] FCA 1420

ON THE SECOND RESPONDENT’S NOTICE OF MOTION OF 9 NOVEMBER 2010, THE COURT ORDERS THAT:

1.    Subject to written consent of the first respondent being obtained or further order, the first respondent’s discovered documents listed in Schedule A and Schedule B to the Affidavit of Kristy Maree Pattison sworn 9 November 2010 shall be made available only to:

(a)    the solicitors;

(b)    counsel; and

(c)    expert witnesses retained for the purposes of writing reports for use in this proceeding;

for the applicant, the second respondent and Tabcorp Holdings Limited who shall keep those documents confidential and not disclose them to any other person including their client.

2.    There be liberty to apply.

3.    The costs of the notice of motion be reserved.

ON THE APPLICANT’S NOTICE OF MOTION OF 9 NOVEMBER 2010, THE COURT ORDERS THAT:

1.    The first respondent as soon as practicable make available for inspection by the applicant each document discovered by it in categories 1, 8, 9, 11 and 23 in an unredacted form, save for any claim to confidentiality based on legal professional privilege and save for any claim that the contents of such documents or parts of them should be restricted to inspection by particular persons by reason of their commercial sensitivity.

2.    There be liberty to apply.

4.    The costs of the notice of motion be reserved.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. The text of entered orders can be located using Federal Law Search on the Court’s website.

REASONS FOR RULING

1    The parties seek further interlocutory orders to address issues between them relating to the further conduct of this matter in preparation for trial. These reasons explain briefly the basis for the orders made on those issues.

2    They concern:

(1)    the applicant’s request for unredacted copies of discovered documents, subject to any claims that such documents contain material privileged from production on the ground of legal professional privilege;

(2)    the applicant’s request for further discovery from the first respondent; and

(3)    the first respondent’s claim for orders protecting the confidentiality of certain of its discovered documents.

3    Issues as to the confidentiality of documents of the intervenor, and as to the production of certain documents discovered by the second respondent in an unredacted form, were resolved and orders were made on 16 November 2010 to give effect to the consensus of those parties on those issues.

cONFIDENTIALITY

4    The relevant legal principles are set out in the reasons for judgment of Gordon J in Cadbury Pty Ltd v Amcor Limited (No 2) [2009] FCA 663 at [6] and by Perram J in Betfair Pty Limitedf v Racing New South Wales (No 5) [2009] FCA 1011 at [9] and [11].

5    In this matter, the real dispute concerning the documents over which confidentiality is claimed so that a limited access order should be made, is whether the need for confidentiality has been justified. That is a matter for the Court upon the whole of the material. The first respondent does not contend that, by reason of the asserted confidentiality, the discovered documents should not be inspected. It contends that inspection of the documents in issue should be confined to the solicitors and counsel for the applicant and any expert witnesses retained for the purposes of writing reports for use in the proceeding. Nevertheless, to justify such a restriction, the first respondent must satisfy the Court that it is appropriate. For that purpose, having regard to what Perram J referred to as “the normal notions of open justice”, the mere assertion of confidentiality will not be sufficient to satisfy the Court that such an order should be made.

6    The claim to a confidentiality order is contentious only in respect of the documents listed in Schedule A to the affidavit of Kristy Pattison sworn on 9 November 2010. The claim to confidentiality in respect of the documents listed in Schedule B to that affidavit is now acknowledged as appropriate by the applicant. In all, the documents referred to in those schedules are voluminous, extending over some 10 lever arch folders.

7    The material before the Court satisfies me that, at least at this point, a fair balance between the interests of the applicant in securing inspection of those commercially sensitive documents and the interests of the first respondent in preserving the secrecy of what appears to me to be commercially sensitive material is best struck by making a confidentiality order in the terms proposed by the first respondent. Those documents include the detailed terms of a Joint Venture Agreement and related agreements to which VicRacing Pty Ltd is a party, and it appears that, by virtue of the role of the first respondent, it has access to the Joint Venture information. The Joint Venture is a competitor of the applicant in the provision of wagering services. I am satisfied that the first respondent is acting appropriately in seeking the confidentiality orders by its interest in the Joint Venture Agreement and the related Product Supply Agreement through VicRacing Pty Ltd and Racing Products Victoria Pty Ltd. The documents include financial and commercial information about the operations and payments made by Tabcorp Holdings Limited (Tabcorp) under those agreements, its detailed financial position and the financial performance of both the Joint Venture and Tabcorp. It contains details of the future financial and commercial planning of both the Joint Venture and Tabcorp, including financial modelling with projected returns. It shows the monies received by the first respondent from the Joint Venture.

8    I have had regard to the fact that Tabcorp, whose information is contained in that material extensively, has not itself claimed that all of it is confidential. Issues as between the applicant and Tabcorp have been resolved consensually on confidentiality. I have also considered the “blanket” nature of the claims made by the first respondent. I have taken into account the fact that its perspective, as distinct from that of Tabcorp, may make it more cautious about issues of confidentiality.

9    In the balancing exercise, having regard to the fact that the applicant will be entitled to see the contentious material (but confined to particular persons), I do not think that its preparation for the trial will be impaired so the order sought will not produce unfairness in the litigation. If, after inspection, it emerges that it is necessary for the applicant to secure a fair trial, that the applicant through a designated officer or officers needs to see the material, or some of it, there will be liberty to apply to enable that to be done.

10    Overall, in respect of that material being documents A1 to A16 and A22 (and the documents numbered A17 to A21 about which there is no issue) in Schedule A, I propose to make the order sought by the first respondent. In my view, it is shown to be commercially sensitive and potentially of commercial benefit to the applicant as a competitor for the Joint Venture.

11    Documents A23 to A48 of Schedule A are described as minutes of meetings of the Victorian Joint Venture. Under the Joint Venture Agreement, they are confidential. That is not, of itself, sufficient to warrant the Court making the order sought in respect of them. There is additional, but scant, evidence that the minutes “reveal the issues being faced by the Joint Venture and the Joint Venture’s strategy and response in dealing with those issues”, so that “it would be very damaging to the Joint Venture for its competitor, the Applicant, to have access to” that information.

12    I have had regard to the nature of those documents. Although the evidence is scanty, their character leads me to the view that in some material respects the claim to confidentiality is made out. I do not feel confident that editing those documents would be a safe option.

13    For the same practical reasons as given in respect of the documents A1 to A16 and A22, in my view the better course at present is to give effect to the claim to confidentiality in respect of them.

Redaction

14    It is clear enough, at least by a series of first instance decisions, that documents which are discovered may not be masked to exclude material which the discovering party claims to be irrelevant, and that the whole of the discovered document must be produced for inspection. See generally Sportsbet Pty Ltd v State of New South Wales (No 4) [2009] FCA 1509; Australian Competition and Consumer Commission v McMahon Services Pty Ltd [2004] FCA 353 at [12]-[13] per Selway J; Sunland Waterfront (BVI) Ltd v Prudentia Investments Pty Ltd (No 4) [2010] FCA 863 at [95] to [101] per Logan J; Egglishaw v Australian Crime Commission (No 2) [2009] 253 ALR 354. I do not think the last mentioned case, having regard to the agreed arrangements about categories of discoverable documents, reflects any different view.

15    Senior counsel for the first respondent submitted that s 37M of the Federal Court of Australia Act 1976 (Cth) now throws a different light on those cases, and secondly that in the absence of an authoritative decision of a Full Court I should exercise my discretion to permit the masking which has taken place.

16    I agree that the proper starting point is O 15 r 15 of the Federal Court Rules. It contemplates that only necessary discovery should be given. However, as the decisions referred to above indicate, the discovery to be given is of documents, rather than selected sections of documents. I should follow those earlier decisions unless I am persuaded that they are plainly wrong. I am not persuaded that that is the case. Nor am I persuaded that, in the light of s 37M, that those decisions are no longer applicable as a general rule.

17    It may well be that, by reason of s 37M, the Court may in a particular case authorise the giving of discovery of documents redacted to remove matters said to be irrelevant. However, I do not propose to take that course in this instance. As the affidavit material shows, the initial redaction process proved to be a little unreliable. It is a matter of judgment whether particular material provides or does not provide context to other parts of the discoverable documents. The more uncomplicated process, rather than inspect myself each particular document in detail and to make a potentially uninformed judgment about that, is to accede to the applicant’s motion in this regard.

18    There will be an order that the first respondent as soon as practicable make available for inspection by the applicant each document discovered by it in categories, 1, 8, 9, 11 and 23 in an unredacted form, save for any claim to confidentiality based on legal professional privilege and save for any claim that the contents of such documents or parts of them should be restricted to inspection by particular persons by reason of their commercial sensitivity.

Further Discovery

19    The applicant seeks discovery from the first respondent of the further documents specified in a Schedule to its notice of motion of 9 November 2010. It is not necessary to deal with all of them, in the light of the first respondent’s response.

20    Some claims are not pressed. Some claims are met by the assertion that the document requested exists, but it is not relevant. The first respondent through its advisers has made a judgment about that. Some are said not to be within the first respondent’s possession. In respect of those categories of documents in the Schedule, I do not propose to make an order for further discovery as I do not think it is necessary, or appropriate, other than those about what the applicant has made particular submissions. I also do not deal with the documents specified in the Schedule which the first respondent has agreed to discover. The character of the “irrelevant” documents is not such that I am satisfied that their discovery is necessary in the circumstances of this matter.

21    That leaves documents numbered 2, 4(a), 4(b), 4(e), 4(f), 4(j), 4(k), 12, 13, 15, 20(j) and 22 which require particular attention.

22    I have considered the respective submissions of senior counsel for the applicant and the first respondent, and the documents to which I was referred in the course of oral submissions, I have reached the view that none of the further documents about which there is an ongoing dispute are necessary to be discovered by the first respondent, with the exception of document 15. That should be discovered in its full form, rather than with missing pages. I suspect that was simply an oversight. I do not need to make an order to secure that.

23    Documents 2, 4(a), 4(b), 4(e), 4(f), 4(j), 4(k) and 12 are all referred to in the discovered document called the Joint Venture Agreement Deed of Settlement. It is said that they are relevant to the context in which that Deed was made, and should be discovered because the construction of the Joint Venture Agreement is likely to be an issue in the proceeding. It is also said they are part of the category of documents which provide the basis by which the first respondent says that Tabcorp makes an economic contribution. Document 22 contains certain annual reports of the first respondent. Document 20(j) is a generic class of documents “relevant to HRV’s assertion of copyright in respect of race fields” referred to in other discovered documents.

24    The fact that a document is referred to in another discovered document is not of itself a reason to order its discovery, or in terms of O 15 r 15 to be satisfied that its discovery is necessary. Despite the forceful submissions of senior counsel for the applicant, I have not been persuaded to that level of satisfaction about any of the contentious documents. The first respondent and its solicitors accept the existence of those documents, but have formed the view that they need not be discovered. The description of the documents, nor their place in relation to other documents, nor their asserted contents (in some instances) indicate, in my view, that their discovery is necessary. Although in respect of document 20(j) it was suggested that that class of documents necessarily informed a matter dealt with in the first respondent’s defence, I do not think the pleading to which my attention was drawn really advances the contentions of the applicant.

25    I accordingly do not propose to accede to that part of the applicant’s motion.

26    In each instance, the costs of the motion will be reserved.

Associate:

Dated:    16 December 2010