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Lake Vermont Marketing Pty Ltd v Coranar (Australia) Pty Ltd (No 2)

 

[2018] QCA 40

SUPREME COURT OF QUEENSLAND

CITATION:

Lake Vermont Marketing Pty Ltd v Coranar (Australia) Pty Ltd (No 2) [2018] QCA 40

PARTIES:

LAKE VERMONT MARKETING PTY LTD
ACN 114 286 850
(appellant)
v
CORANAR (AUSTRALIA) PTY LTD
ACN 114 668 727

(respondent)

FILE NO:

Appeal No 6119 of 2017

SC No 8877 of 2016

DIVISION:

Court of Appeal

PROCEEDING:

General Civil Appeal – Further order

ORIGINATING COURT:

Supreme Court at Brisbane – [2017] QSC 120 (Bond J)

DELIVERED ON:

20 March 2018

DELIVERED AT:

Brisbane

HEARING DATE:

On the papers

JUDGES:

Sofronoff P, Fraser JA and Mullins J

ORDER:

  1. The reasons for judgment published to the parties on 2 February 2018 be placed in an envelope on the court file which is sealed and marked “Confidential.  Not to be opened except with the leave of the court or a judge.”

CATCHWORDS:

PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – JUDGMENTS AND ORDERS – GENERALLY – FORM OF JUDGMENT OR ORDER – where parties to an appeal submitted redactions should be made to the judgment on the appeal before publication to preserve the commercial sensitivity of the agreements the subject of the judgment and the parties’ contractual obligations to keep the terms of the agreement confidential – where disclosure of some terms of the agreement were necessary to explain the court’s reasons – where public interest in having the reasons available balanced with the parties’ contractual obligations of confidentiality – where reasons redacted to some extent

David Syme & Co Ltd v General Motors Holden’s Ltd [1984] 2 NSWLR 294, considered

Lake Vermont Marketing Pty Ltd v Coranar (Australia) Pty Ltd [2018] QCA 2, related

Rinehart v Welker (2011) 93 NSWLR 311; [2011] NSWCA 403, considered

Scott v Scott [1913] AC 417; [1913] UKHL 2, considered

COUNSEL:

S Couper QC, with J M O’Connor, for the appellant

G A Thompson QC, with E L Hoiberg, for the respondent

SOLICITORS:

DLA Piper for the appellant

Allens for the respondent

  1. THE COURT:  The court disposed of the appeal heard on 28 September 2017 by orders made on 29 September 2017 dismissing the appeal with costs.  Reasons for these orders were published to the parties on 2 February 2018 and directions were made to give the parties an opportunity to make submissions on what redactions should be made to the reasons before they are made public: Lake Vermont Marketing Pty Ltd v Coranar (Australia) Pty Ltd [2018] QCA 2.
  1. The parties have made joint submissions that paragraphs [9] to [23], [31], [33], [43], [46], [49], [51], [56] and [62] of the reasons ought to be redacted before being made public.
  2. The learned trial judge had accepted the parties’ submissions about the confidential nature of the contents of affidavits and exhibits and followed David Syme & Co Ltd v General Motors Holden’s Ltd [1984] 2 NSWLR 294 to formulate reasons which contained an adequate account of the litigation and the reasons underlying the orders that were made, but also sought to ensure confidentiality which a party may be entitled to have protected.  To the extent the trial judge found it necessary to refer to confidential material, that was done by footnotes in the public reasons that referred to the relevant parts of the confidential appendix to those reasons that was ordered to be placed in a sealed envelope on the court file and marked “Confidential.  Not to be opened except with the order of the court first had and obtained.”: Coronar (Australia) Pty Ltd v Lake Vermont Marketing Pty Ltd [2017] QSC 120 at [2]-[4].
  3. Apart from the obvious commercial sensitivity of aspects of the terms of the agreements that were the subject of the proceeding and the appeal, the parties had agreed to express confidentiality provisions between themselves in the marketing agreement and Coranar was the subject of confidentiality obligations under the joint venture agreement in favour of the other joint venture participants.  The parties submit that the effect of the confidentiality provisions in both the marketing agreement and the joint venture agreement is that the existence of those agreements and all terms of them are the subject of confidentiality.  In fact, Coranar obtained the consent of the other joint venture participants to disclose in the proceeding the joint venture agreement, the marketing agreement, the related agreement, and any correspondence between the parties relating to Coranar’s request for disclosure of documents pursuant to the marketing agreement.  The consent of the other joint venture participants to this disclosure for the purpose of the proceeding was conditional upon Coranar protecting the confidentiality of such documents including, but not limited to, requesting that any court order, reasons for judgment or transcript be amended to remove confidential information contained in the documents.  The joint submissions by the parties seeking redaction of the reasons can be attributed to their confidentiality obligations under the marketing argument, Coranar’s confidentiality obligation under the joint venture agreement and Coranar’s undertaking given to the other joint venture participants for their consents to the disclosures made by Coranar in this proceeding.
  4. It is apparent from the parties’ joint submissions that they have mechanically applied the contractual stipulations as to what is confidential, in order to seek redactions without addressing whether those redactions are otherwise warranted in the public interest.  An extreme example of this mechanical application is seeking to exclude that the joint venture agreement imposes an obligation on each participant to act in good faith towards the other joint venture participants.  The redactions are sought on the basis the identified paragraphs of the reasons expressly disclose terms of the marketing agreement or the joint venture agreement.  The substance of a couple of those terms had already been disclosed in the public reasons of the trial judge (at [6] and [16]-[18]) and some of the other terms are innocuous in the sense of reflecting relatively standard contractual terms rather than revealing commercially sensitive dealings on arrangements.
  5. If the parties did not succeed in their joint submission that the identified paragraphs be redacted or, at least to the extent those paragraphs revealed the terms of the marketing agreement or the joint venture agreement, the submission was made that disclosure of the most important and relevant of the contractual provisions to give context to the reasons should be limited to clauses 8.1 and 8.2 of the marketing agreement.
  6. It is a fundamental aspect of the quality of the justice system that courts administer justice in public: Scott v Scott [1913] AC 417, 437-438.  As with all fundamental principles, however, there may be exceptions to preserving the public nature of a court proceeding: David Syme at 300; Rinehart v Welker (2011) 93 NSWLR 311 at [34]-[37].  As was recognised by Street CJ in David Syme at 300, where there is a good reason to allow for an exception to the public nature of court proceedings, that exception must be balanced with accommodating the importance of maintaining the public aspect of court proceedings.  It is relevant to observe there must be a difference between the protection of commercially sensitive information and the protection of information which parties have agreed or expressed to be confidential, when the information objectively lacks that quality: compare Rinehart at [45]-[47].
  7. A substantial part of Lake Vermont’s submissions on the appeal addressed the construction of clause 8.2 in the marketing agreement (which Coranar was seeking to enforce) by reference to Coranar’s obligations under the joint venture agreement and other provisions of the marketing agreement.
  8. It is apparent from the terms of the joint venture agreement and the marketing agreement that using clause numbers in the reasons to identify the relevant clauses does not reveal any confidential matter.  As the parties conceded in their alternative submission, clauses 8.1 and 8.2 of the marketing agreement should be disclosed.  Apart from the fact that clause 8.2 was the subject of the application and its contents had been disclosed in the trial judge’s reasons, the content of clause 8.1 gives some indication of the types of documents, records and accounts held by Lake Vermont relating to its marketing activities that could be the subject of the request under clause 8.2 and does not address commercially sensitive information by listing the types of documents, records and accounts in general terms.  One of the primary arguments advanced by Lake Vermont on the appeal was that clause 8.2 of the marketing agreement had to be construed in the context of the obligations imposed under clauses 4.3 and 4.5 of the marketing agreement.  Each of clauses 4.3 and 4.5 is unremarkable as to the respective obligations imposed under the clauses and could not be characterised as revealing any matter that was commercially sensitive.  In order to make sense of the reasons for dismissing the appeal, it is necessary to disclose the terms of clauses 4.3 and 4.5 of the marketing agreement.
  9. It was relevant to the context of the reasoning that resulted in the rejection of Lake Vermont’s submissions on the appeal that there were confidentiality obligations under both the joint venture agreement and the marketing agreement.  Those clauses were not fully extracted in the reasons, but described in a way that was relevant for summarising the arguments, and also could not be characterised as revealing any matter that was commercially sensitive.
  10. There is a public interest in having access to the reasoning by which the court resolved a commercial dispute in respect of the construction of a contract.  It is relevant for the administration of justice for the public to be aware of the nature of the arguments that parties to a commercial contract pursue in litigation.  The public interest aspects of the appeal must be considered in the context of the contractual confidentiality obligations imposed on the parties.  In addition, in this matter it is relevant that there are other joint venture participants who were not parties to the appeal, but which expected the parties to take steps to advance the confidentiality provisions in the joint venture agreement and the marketing agreement.
  11. The balancing of these factors favours fewer redactions than proposed by the parties.  Rather than apply the blunt test of whether the terms of the agreements are disclosed, the test in this matter should address what is required to explain the arguments before, and the reasoning of, the court and avoid the disclosure of any commercially sensitive information.  The redactions should therefore remove references to the contents of the joint venture agreement and the marketing agreement that are not essential to the main arguments made by the parties on the appeal or to the reasoning that disposed of the appeal.
  12. On that basis redactions will be made to all but the first sentence of paragraph [9], the second sentence of paragraph [10] will be modified to reduce the content disclosed of clause 5.1(e) of the joint venture agreement, paragraph [11] will be omitted, the second sentence of paragraph [14] will be redacted, the first sentence of paragraph [15] will be modified to summarise the content of clause 3.1 of the marketing agreement and the balance of paragraph [15] will be redacted, the second sentence of paragraph [16] will be redacted, paragraph [17] will be modified to summarise the content of clause 3.10 of the marketing agreement, the exact terms of clause 9.1 will be redacted from paragraph [22], and the second sentence of paragraph [49] will be redacted.
  13. The reasons delivered on 2 February 2018 will therefore be redacted by showing the omissions with asterisks and showing in italics the words that have been inserted to make sense of the remaining parts of the reasons after the omissions.  It is those redacted reasons that will be publicly available as Lake Vermont Marketing Pty Ltd v Coranar (Australia) Pty Ltd [2018] QCA 2.
  14. A further order in this appeal is required as follows:
  1.  The reasons for judgment published to the parties on 2 February 2018 be placed in an envelope on the court file which is sealed and marked “Confidential.  Not to be opened except with the leave of the court or a judge.”

Editorial Notes

  • Published Case Name:

    Lake Vermont Marketing Pty Ltd v Coranar (Australia) Pty Ltd (No 2)

  • Shortened Case Name:

    Lake Vermont Marketing Pty Ltd v Coranar (Australia) Pty Ltd (No 2)

  • MNC:

    [2018] QCA 40

  • Court:

    QCA

  • Judge(s):

    Sofronoff P, Fraser JA, Mullins J

  • Date:

    20 Mar 2018

  • White Star Case:

    Yes

Litigation History

Event Citation or File Date Notes
Primary Judgment [2017] QSC 120 14 Jun 2017 Bond J.
Notice of Appeal Filed File Number: Appeal 6119/17 20 Jun 2017 -
Appeal Determined (QCA) [2018] QCA 2 02 Feb 2018 Appeal dismissed: Sofronoff P, Fraser JA and Mullins J.
Appeal Determined (QCA) [2018] QCA 40 20 Mar 2018 Judgment concerning redaction of [2018] QCA 2 for publication: Sofronoff P, Fraser JA and Mullins J.

Appeal Status

{solid} Appeal Determined (QCA)