FEDERAL COURT OF AUSTRALIA

Australian Competition and Consumer Commission v Reckitt Benckiser (Australia) Pty Ltd (No 2) [2015] FCA 1274

THE COURT ORDERS THAT:

1.    Subject to any further order of the Court, pursuant to section 37AF of the Federal Court Act 1976 (Cth), the publication or other disclosure of the Nielsen Confidential Information by the Applicant or the Respondent and their external solicitors, counsel and/or independent experts be restricted in accordance with the Confidentiality Regime in Annexure A on the ground that non-disclosure of the Nielsen Confidential Information is necessary to prevent prejudice to the proper administration of justice.

2.    There be no order as to costs of this application or the application decided on 3 November 2015.

In these Orders:

“Nielsen Confidential Information” means the information contained within the attachment to the letter from Allen & Overy to Webb Henderson dated 25 September 2015 entitled ‘Confidential – data extracted from the Nielsen database’, included by the Applicant at Tab 105 in the Court Book in the proceedings, and any extracts thereof, including Tab 18 of the Exhibit to Hien Nguyen’s affidavit (at Tab 102 of the Court Book in the proceedings).

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

Annexure A

Confidentiality Regime

Australian Competition and Consumer Commission v Reckitt Benckiser (Australia) Pty Ltd (Federal Court of Australia proceedings NSD180/2015)

(1)    The Nielsen Confidential Information:

(a)    must, unless the Court otherwise orders, be kept confidential by:

(i)    the Australian Competition and Consumer Commission (ACCC) and Reckitt Benckiser (Australia) Pty Ltd (Reckitt) (each a “Party”);

(ii)    the Parties’ officers, directors, partners, members or employees instructing in or assisting with Federal Court of Australia proceedings NSD180/2015 (Proceedings); and

(iii)    the Parties’ external solicitors and counsel participating in or assisting with the Proceedings, and their clerical and support staff,

in possession of the Nielsen Confidential Information (Receiving Party) in accordance with this Confidentiality Regime;

(b)    may be accessed by any Receiving Party and:

(i)    the Parties’ officers, directors, partners, members or employees instructing in or assisting with the Proceedings;

(ii)    the Parties’ external solicitors and counsel participating in or assisting with the Proceedings, and their clerical and support staff or otherwise notified to Nielsen in relation to the Proceedings;

(iii)    subject to paragraph 3 of this Confidentiality Regime, independent experts; and

(iv)    such other persons otherwise notified to Nielsen,

engaged, retained or briefed (as the case may be) in the Proceedings by a Receiving Party or instructing in the Proceedings on behalf of a Receiving Party and who are made aware of the confidential nature of the Nielsen Confidential Information and the restricted terms on which it has been disclosed (collectively Disclosure Persons); and

(c)    may be used only for the purpose of the Proceedings.

(2)    The Nielsen Confidential Information will be used, handled, kept and stored by the Disclosure Persons subject to the following directions:

(a)    subject to paragraph 2(b), the Nielsen Confidential Information will be used, handled, kept and stored in such a manner as will at all times, including during the hearing of the Proceedings, preserve its confidentiality;

(b)    Disclosure Persons use their best endeavours to ensure that information or data contained in the Nielsen Confidential Information is not disclosed in open Court and only used or reproduced in written submissions that are marked as confidential by the filing Party when filed with the Court and are not made available for public inspection in the Registry. Where written submissions are marked confidential, the filing Party is also to provide the Court with a version of the submissions in which the Nielsen Confidential Information is redacted and so may be made available for public inspection in the Registry. For the avoidance of doubt the documents themselves which comprise the Nielsen Confidential Information can be referred to in open Court and in publically accessible written submissions (but not the information or data contained in those documents);

(c)    no copies of the Nielsen Confidential Information will be made by any Disclosure Persons except for the purpose of the Proceedings;

(d)    Any copies of the Nielsen Confidential Information made by or on behalf of the Disclosure Persons will be subject to the provisions of this Confidentiality Regime relating to the Nielsen Confidential Information (as if such copies were the Nielsen Confidential Information);

(e)    no Nielsen Confidential Information will, without the prior written consent of Nielsen, be accessed by any persons other than the Disclosure Persons or otherwise under a subscription agreement with Nielsen; and

(f)    within 60 days after receiving notice of an entry of an order or judgment finally disposing of the Proceedings including the exhaustion of all possible appeals and other review, the Receiving Party will either return to Nielsen or destroy or delete (as appropriate) any and all copies of the Nielsen Confidential Information which are held by Disclosure Persons.

(3)    The Nielsen Confidential Information may not be accessed by independent experts retained by the Receiving Party unless an executed undertaking in the form set out in Attachment 1 to this Confidentiality Regime has been served on the solicitors for Nielsen, Minter Ellison.

(4)    The terms of this Confidentiality Regime shall not apply, or shall cease to apply as the case may be, to Nielsen Confidential Information (or any part thereof) that:

(a)    was already in a Party’s possession with the consent of Nielsen prior to the date of this Confidentiality Regime or otherwise accessed by a Party with the consent of Nielsen under a subscription agreement with Nielsen;

(b)    becomes publicly available or public knowledge otherwise than through the default of any person under an obligation of confidence;

(c)    is subsequently received from a third party not under any obligation of confidentiality; or

(d)    the Court determines:

(i)    it is public knowledge, or

(ii)    is no longer to be treated as confidential.

Attachment 1

UNDERTAKING BY INDEPENDENT EXPERTS

(1)    I, [NAME] of [ADDRESS], [OCCUPATION], do hereby acknowledge that I have read the Confidentiality Regime set out in the pages preceding this Attachment 1 in respect of the Nielsen Confidential Information in the Proceedings and I HEREBY UNDERTAKE the following with respect to the Nielsen Confidential Information.

(2)    Each document comprising any Nielsen Confidential Information which comes into my possession:

(a)    will be used by me only for the purpose of the Proceedings;

(b)    will be kept confidential by me at all times; and

(c)    will not be disclosed by me to the Receiving Party (including its in house lawyers or counsel) or any other independent experts retained on behalf of the Receiving Party or by any other person except as provided in the following paragraphs.

(3)    Each document comprising or containing any Nielsen Confidential Information which comes into my possession will be used, handled, kept and stored by me in such a manner as will keep it at all times safe from disclosure except as may be required for me to receive instructions from the Receiving Party’s external solicitors and external counsel or as may be required in my giving of evidence in the Proceedings.

(4)    I will not make any copy of any document comprising or containing any Nielsen Confidential Information which comes into my possession (Copy Nielsen Confidential Information) except as may be reasonably required by me for the purposes stated in paragraph 2(a) above.

(5)    I will treat the Nielsen Confidential Information and information derived or notes taken or reports or other documents generated from the Nielsen Confidential Information by me as subject to the obligations contained in this Undertaking.

(6)    Within 7 days of receiving notice of the final determination of the Proceedings, I will:

(a)    deliver up to the Receiving Party’s external solicitors all hard copies of such Nielsen Confidential Information and Copy Nielsen Confidential Information as are in my possession; and

(b)    take all reasonable steps to permanently delete any Nielsen Confidential Information stored in any electronic storage facility owned or used by me so as not to be retrievable by any means, and confirm in writing to the Receiving Party’s external solicitors that I have taken all reasonable steps to do so within the time stated in this paragraph.

REASONS FOR JUDGMENT

Introduction

1    On 3 November 2015, I published reasons for decision refusing the application by The Nielsen Company (Australia) Pty Ltd (Nielsen), for 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). I refused that application due to various concerns I had with the proposed confidentiality regime and with the lack of conferral between Nielsen and the parties: see Australian Competition and Consumer Commission v Reckitt Benckiser (Australia) Pty Ltd [2015] FCA 1184.

2    Nielsen now brings a fresh application, after conferral, which purports to address the concerns that I raised. Nielsen sought to have its application determined on the papers. No other party sought to be heard.

3    None of the proposed orders 2 to 7 sought by Nielsen is necessary or appropriate. None should be made. However, it is appropriate now, in the circumstances of this case, to make proposed order 1 which gives effect to the proposed Confidentiality Regime.

The orders sought by Nielsen

4    The orders sought by Nielsen 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 1976 (Cth), the publication or other disclosure of the Nielsen Confidential Information by the Applicant or the Respondent and their external solicitors, counsel and/or independent experts be restricted in accordance with the Confidentiality Regime in Annexure A to this Application on the ground that non-disclosure of the Nielsen Confidential Information is necessary to prevent prejudice to the proper administration of justice.

2.    The Nielsen Confidential Information, and those parts of any affidavits or written submissions containing Nielsen Confidential Information, be marked as confidential on the Court file when filed, tendered or read, and not be made available for public inspection in the Registry.

3.    The Nielsen Confidential Information shall not appear in the Court transcript other than in a confidential copy of the transcript, which shall only be made available to the Court and to the Applicant and Respondent.

4.    The Applicant and Respondent notify The Nielsen Company (Australia) Pty Ltd (Nielsen) or its solicitors Minter Ellison, within 1 business day of the delivery of judgment in Federal Court Proceedings No NSD 180 of 2015, of any paragraphs of the judgment that contain Nielsen Confidential Information.

5.    Nielsen file and serve within 5 business days of being notified under Order 4, the specific orders sought by Nielsen in relation to Nielsen Confidential Information contained within the judgement, as well as any supporting evidence and submissions relied upon by Nielsen in support of these orders.

6.    The issue of whether the reasons for judgment should be redacted to retain the confidentiality of the Nielsen Confidential Information be decided on the papers.

7.    Such further or other order as the Court thinks fit.

In these Orders:

“Nielsen Confidential Information” means the information contained within the attachment to the letter from Allen & Overy to Webb Henderson dated 25 September 2015 entitled ‘Confidential – data extracted from the Nielsen database’, included by the Applicant at Tab 105 in the Court Book in the proceedings, and any extracts thereof, including Tab 18 of the Exhibit to Hien Nguyen’s affidavit (at tab 102 of the Court Book in the proceedings).

Proposed orders 2, 3, 4, 5, 6, and 7 sought by Nielsen

5    I commence with the orders other than order 1.

6    Proposed order 2 is not an order directed at the parties but, instead, seeks to have the court give a direction to the Registry although the proposed order does not specify whether it is the Sydney registry where this file is managed or the Brisbane registry where I am located. As to this proposed order, Nielsen does not identify which “parts” of which affidavits, or which “parts” of which written submissions, contain Nielsen Confidential Information and should therefore be marked by Registry. Further, as to inspection by a non-party, a non-party cannot inspect submissions or affidavits under r 2.32 of the Federal Court Rules 2011 (Cth) without leave. If an application is made by a non-party to inspect submissions or affidavit evidence in these proceedings that contains Nielsen Confidential Information then Nielsen should then be given the opportunity to be heard in opposition to that application.

7    The terms of proposed order 3 are unclear. It is also unclear to whom it is addressed. It appears by its terms to be directed to Auscript, who are responsible for producing court transcript. But it is unclear how Nielsen contemplates that the Court might prohibit Auscript from allowing Nielsen Confidential Information to appear in the transcript. Certainly, the proposed order does not contemplate any list of Nielsen Confidential Information being provided to Auscript so that the information could be marked confidential on the transcript. Nor does the proposed order contemplate any redacting process after the transcript is produced to mark on the transcript any mention of Nielsen Confidential Information as confidential.

8    It may be that the purpose of order 3 is a concern that counsel for one of the parties might make submissions concerning Nielsen’s Confidential Information in open court in a manner which disclosed that information. If that occurred, and if that matter were to involve a breach of an obligation of confidence, then it might then be appropriate for parts of a transcript to be marked as confidential. It might not otherwise be appropriate. But, in any event, it is not appropriate to close a court or to attempt in advance, in vague terms, to suppress a transcript of public proceedings in order merely to guard against the possible release of confidential information (about which there has been no contradictor to prove the confidence).

9    Proposed order 4 is unnecessary. Reasons for decision are usually published online within hours of being published in open court. Notice is published online of the listing of publication of reasons for decision. Nielsen would be in a better position to assess whether any paragraphs of the reasons for decision contain its own confidential information than either of the parties. If Nielsen wishes to attend at the handing down of reasons for decision and to obtain a hard copy of the judgment handed down it is welcome to do so.

10    Proposed orders 5 and 6 are both excessive and unnecessary. If Nielsen wishes to make an application for suppression of any part of the Court’s judgment on the basis that the reasons for decision would reveal Nielsen’s confidential information then it can make that application at, or shortly after, the handing down of the hard copy of the reasons for decision. Programming orders for any evidence and submissions to be filed by Nielsen can be made at that time. When making that application, Nielsen should bear in mind, as s 37AE of the Federal Court of Australia Act 1976 (Cth) provides, that a primary objective of the administration of justice is to safeguard the public interest in open justice. The suppression of parts of reasons for decision that are necessary or integral to the reasoning process, for purely commercial reasons, may not be an appropriate counterbalance for the important principle of open justice.

11    Proposed order 7 is an unnecessary catch-all order that is often included by parties who fear that they may have forgotten to include a possible order. It is hard to see how there is anything that Nielsen could have forgotten to include.

12    None of the proposed orders 2, 3, 4, 5, 6, or 7 is necessary or appropriate in this case.

Proposed order 1

13    Although Nielsen’s proposed order 1 is also based on both s 37AF and s 23 of the Federal Court of Australia Act 1976 (Cth), it is hard to see how s 23 can add anything to that ground for the power in s 37AF which is carefully defined in s 37AG(1)(a). This is particularly in circumstances in which Nielsen points to no other reason for the confidentiality orders other than the order is necessary “to prevent prejudice to the proper administration of justice”.

14    Nielsen’s proposed order 1 seeks to give the force of a court order to its proposed confidentiality regime. This proposed order seeks to revisit the previous application made by Nielsen, which I refused in Australian Competition and Consumer Commission v Reckitt Benckiser (Australia) Pty Ltd [2015] FCA 1184.

15    The reasons why Nielsen’s previous application was refused were essentially because the terms of some of the orders sought were not appropriate and because the parties had not properly conferred. Nielsen has now conferred with the parties. It has also addressed the concerns that I raised.

16    In the previous application I explained that I was satisfied on the basis of the uncontested affidavit evidence filed by Nielsen that the information which is described as the Nielsen Confidential Information was confidential and that public disclosure of it could cause damage to Nielsen’s, and its licensors’, commercial interests.

17    In the previous application I was also prepared to proceed on the basis that the unnecessary disclosure of this confidential information could prejudice the proper administration of justice within the meaning of s 37AG(1)(a) of the Federal Court of Australia Act 1976 (Cth). Because the application was refused it was unnecessary to determine that point finally.

18    No party in these proceedings has made any submissions as a contradictor. Hence, I have before me no articulated position concerning whether prejudice to the commercial interests of a third party by disclosure of information is “prejudice to the proper administration of justice” either generally or in this case.

19    One factor, in this case, which might, arguably, support a conclusion that such commercial prejudice could affect the proper administration of justice is that Nielsen had sought to enter confidentiality agreements with each of the parties to this litigation but neither had agreed to enter such an agreement. This is in the context of a Confidentiality Regime which is centrally concerned with the manner of use of information about which Nielsen’s claims to confidentiality is not currently disputed.

20    It has also been said that the Court can consider as a factor concerning the administration of justice whether the process of litigation could “become a vehicle for advantaging or prejudicing trade rivals”: Australian Competition & Consumer Commission v Origin Energy Electricity Ltd [2015] FCA 278 [148] (Katzmann J); Australian Competition and Consumer Commission v Cement Australia Pty Ltd (No 2) [2010] FCA 1082 [23] (Greenwood J).

21    In the absence of any contradictor on this point, and hence without creating any precedent, I am prepared to make the order sought: CSR Ltd v Eddy [2005] HCA 64; (2005) 226 CLR 1, 11 [13] (Gleeson CJ, Gummow and Heydon JJ).

Conclusion and costs

22    It is appropriate in this case to make an order, order 1 as proposed by Nielsen, giving effect to the proposed Confidentiality Regime.

23    In the previous application I expressed a preliminary view that Nielsen should pay the costs of the parties in relation to the application. Nielsen has now filed lengthy submissions concerning why the costs order for that application, and this application, should be that there be no order as to costs. Unsurprisingly, in circumstances in which the costs of responding might exceed any costs awarded, no party has sought to be heard in response and no other party seeks its costs (although no party opposed the order I had foreshadowed).

24    On the one hand, I take into account the misconceived nature of parts of Nielsen’s previous application and the inconvenience and disruption caused by that to the proceedings. On the other hand, I also take into account (i) Nielsen’s position as a third party stranger to the proceedings and the unusual nature of third party costs orders, (ii) Nielsen’s attempts to reach a confidentiality agreement with the parties prior to bringing its application, and (iii) the reason for Nielsen’s application being the desire of the parties to use documents containing Nielsen’s confidential information. Ultimately, I consider that there should be no order as to costs of this application or the application decided on 3 November 2015.

Associate:    

Dated:    18 November 2015