FEDERAL COURT OF AUSTRALIA

Australian Competition and Consumer Commission v Reckitt Benckiser (Australia) Pty Ltd [2015] FCA 1184

THE COURT ORDERS THAT:

1.    The interlocutory application brought on 21 October 2015 be relisted for hearing on 23 November 2015 at 9.30am (Brisbane time).

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

Introduction

1    On 21 October 2015, a third party in these proceedings, The Nielsen Company (Australia) Pty Ltd (Nielsen), brought an interlocutory application seeking an order restricting access to, and disclosure of, its confidential information in these proceedings. The order was sought under s 37AF, alternatively s 23, of the Federal Court of Australia Act 1976 (Cth).

2    At a directions hearing on 23 October 2015, the parties agreed that this application could be dealt with on the papers. On that occasion I emphasised the importance of conferral prior to the application being brought so that each of the parties might be able to consider and have input in an appropriate Confidentiality Regime.

3    In written submissions Nielsen said that the parties had notified it that they did not agree to executing a Confidentiality Agreement. Nielsen therefore said that it sought the Confidentiality Regime in these proceedings in order to protect the confidence of its information. What Nielsen did not say, but which the Australian Competition and Consumer Commission (ACCC) explained in its submissions, was that the ACCC had not been provided with an opportunity to comment on the application or the Confidentiality Regime in the form in which it was filed. It may also be that Nielsen did not provide the respondent, Reckitt Benckiser, with an opportunity to comment on the application or the proposed regime. This failure to confer is unfortunate.

4    I am satisfied on the basis of the uncontested affidavit evidence filed by Nielsen that the information which is described as the Nielsen Confidential Information is confidential. I am also satisfied that public disclosure of it could cause damage to Nielsen’s, and its licensors’, commercial interests. I am also prepared to accept for the purposes of this application that the unnecessary disclosure of this confidential information could prejudice the proper administration of justice within s 37AG(1)(a) of the Federal Court of Australia Act 1976 (Cth).

5    However, there are serious difficulties with the orders sought by Nielsen (including the Confidentiality Regime which they incorporate). Those difficulties may not have arisen if Nielsen had conferred prior to this application, as it should have done, with the parties about the terms of its proposed Confidentiality Regime. This application can be adjourned to allow this process to take place and for Nielsen to consider reformulating its application, if it remains necessary after conferral, in light of these reasons.

The orders sought by Nielsen and their problems

6    The orders sought by Nielsen in this application are as follows:

(1)    Subject to any further order of the Court, pursuant to section 37AF or, in the alternative section 23, of the Federal Court of Australia Act, the publication or other disclosure of the Nielsen Confidential Information be restricted to persons entitled to access the Nielsen Confidential Information in accordance with the Confidentiality Regime in Annexure A to this Application.

(2)    If Order 1 is made under section 37AF of the Federal Court of Australia Act, it is made on the ground that non-disclosure of the Nielsen Confidential Information is necessary to prevent prejudice to the proper administration of justice.

7    Apart from the fact that the proposed order (2) appears to be a submission rather than a proposed order, the Confidentiality Regime incorporated into order (1) has, at least, the following problems.

8    First, the terms of the proposed order (1) appear to contemplate an order which is directed at either the world at large, or at the Court, and not merely at the parties. The proposed order (1) is not limited to commanding the parties to comply with the Confidentiality Regime. Instead, it appears to have been drafted in an open-ended way as an attempt to bind the Court and any other third party not before the Court. As I explain below, this is also a feature of the proposed Confidentiality Regime.

9    Secondly, paragraph 1(c) of the Confidentiality Regime provides that the Nielsen Confidentiality Information:

will not be open to public inspection, disclosed in open court or disclosed in the open part of any Court transcript unless by order of the Court or with the prior written consent of The Nielsen Company (Australia) Pty Ltd (Nielsen).

10    There is ambiguity in paragraph 1(c), and it is unsurprising that the respondent, Reckitt Benckiser, has filed submissions seeking clarification of the meaning of it. It is inappropriate for a court to make orders in terms of a paragraph where explanatory reasons are needed to clarify the meaning of the regime incorporated in the order. In particular:

(1)    it is unclear whether paragraph 1(c) would prevent various documents being referred to in the oral addresses of the parties even if the information or data contained in the document was not disclosed;

(2)    it is unclear whether paragraph 1(c) would prevent the information or data contained in any of the documents being referred to in the parties’ written submissions which are not openly accessible to the public;

(3)    paragraph 1(c) makes no provision for the possibility of submissions being made in open court in an appropriately subtle and directed way such as by a reference to Nielsen Confidential Information in a manner which is sufficiently informative to the court, but does not reveal that information to any public participant; and

(4)    the effect of order 1(c) seems to go beyond attempting to bind the parties and appears to be directed at the Court itself or the world at large. For example, the provision that the Nielsen Confidential Information will not be open to public inspection or disclosed in the open part of any Court transcript appears to be directed at the Court rather than at the parties themselves.

11    Thirdly, Attachment 1 to the proposed Confidentiality Regime omits several of the external solicitors for Reckitt Benckiser.

12    Fourthly, as the ACCC points out, the Confidentiality Regime does not specify which persons within the ACCC “are in possession of” the Nielsen Confidential Information. This omission is significant in circumstances in which such persons are Receiving Parties in the terms of the Confidentiality Regime, and are subject to particular obligations under that regime, including an obligation to use, handle, keep and store the information in such a manner as will preserve its confidentiality.

13    Fifthly, the Confidentiality Regime does not permit any persons within the ACCC who are not currently “in possession of” the Nielsen Confidential Information to subsequently access it. In this respect paragraph 1(b) of the Confidentiality Regime is too narrow.

14    Sixthly, paragraph 4 of the Confidentiality Regime provides that the terms of the regime shall not apply or shall cease to apply in various circumstances including where the confidential information becomes publically available or a matter of public knowledge. It is unclear whether this proposed paragraph applies to all of the Nielsen Confidential Information, or any part of it that might become public.

15    Seventhly, there are other parts of the Confidentiality Regime that are significantly ambiguous. This is very unfortunate in circumstances where the Confidentiality Regime will be incorporated in an order of the court for which failure to comply could potentially amount to contempt. One example is that no Nielsen Confidential Information is permitted to be copied by the Disclosure Persons except as may be reasonably required for the purpose of these proceedings. What is meant by the concept of reasonableness here? Would copying of the Nielsen Confidential Information in an extra bundle, for example, be regarded as unreasonable and not therefore within paragraph 2(b)?

Conclusion

16    These are a number of the difficulties with the proposed Confidentiality Regime. As I have explained, I consider that properly formulated confidentiality orders might be appropriate in this case. However, it is dismaying, to say the least, that Nielsen did not engage in proper conferral with the parties to these proceedings prior to bringing its application. It would be surprising if the parties were not prepared to enter a confidentiality agreement, rather than requiring a compulsory regime imposed by the Court, once their legitimate concerns were addressed. But, at the least, proper conferral should have occurred before this application was brought. The seven points above are just some of the problems with the proposed orders sought.

17    For these reasons the application will be adjourned. Subject to any submissions by the parties my preliminary view is that it is appropriate that Nielson pay the costs of the parties incurred in relation to this application until today’s date.

18    In circumstances in which determination on the papers has not been possible, the application will be relisted on 23 November 2015 at 9.30am (Brisbane time) for brief hearing. If the parties are able to enter a confidentiality agreement which can be embodied in an order of the Court then orders can be made administratively and the hearing vacated. In any event, the parties and Nielsen should email my associate by 4pm tomorrow with a proposed timetable for brief submissions prior to the hearing concerning any contested points of the proposed Confidentiality Regime that remain after proper conferral which should be in person.

Associate:    

Dated:    3 November 2015