Pembroke Olive Downs Pty Ltd v Namrog Investments Pty Ltd

[2023] QLC 6

LAND COURT OF QUEENSLAND

CITATION:

Pembroke Olive Downs Pty Ltd v Namrog Investments Pty Ltd [2023] QLC 6

PARTIES:

Pembroke Olive Downs Pty Ltd
(applicant)

v

Namrog Investments Pty Ltd

(respondent)

FILE NO:

MRA487-20

PROCEEDING:

General Application

DELIVERED ON:

30 March 2023 [ex tempore]

DELIVERED AT:

Brisbane

HEARD ON:

30 March 2023

HEARD AT:

Brisbane

PRESIDENT:

FY Kingham

ORDERS:

1.   The General Application filed by Namrog Investments Pty Ltd on 22 February 2023 is dismissed.

2.   Namrog Investments Pty Ltd must pay Pembroke Olive Downs Pty Ltd’s costs of the General Application.

CATCHWORDS:

PROCEDURE – STATE AND TERRITORY COURTS – DISCLOSURE – where the respondent sought to impose a confidentiality regime – where the parties did not agree on whether certain documents were confidential and/or commercially sensitive – where documents have character of confidentiality – where not established risk that implied undertaking will be breached or that greater protection required

Magellan Petroleum Australia Ltd v Sagasco Amadeus Pty Ltd [1994] 2 Qd R 37
Tri-Star Petroleum Company v Australia Pacific LNG Pty Ltd [2017] QSC 136
Mobil Oil Australia Ltd v Guina Developments Pty Ltd [1996] 2 VR 34

APPEARANCES:

S Holt KC for the applicant

K McIntyre for the respondent

1. The starting point for a matter such as this, is that the implied undertaking provides a protection. In fact, it’s an obligation that is imposed upon parties to civil litigation, that they do not use any material that is disclosed in the course of the proceedings for an ancillary purpose (Hearne v Street (2008) 235 CLR 125). The application that has been made is to impose a further restriction beyond that. The court does have a discretion to make the order that Namrog seeks. where documents have a character of confidentiality and there’s a risk that the implied undertaking is not sufficient protection (Magellan Petroleum Australia Ltd v Sagasco Amadeus Pty Ltd [1994] 2 Qd R 37).

1. I am happy to proceed on the basis that the financial information, although it’s described quite broadly in part F of the draft brief. There’s enough for me to be satisfied that it has the character of confidentiality. It involves a business enterprise by a privately-owned corporate group, and normally that information would not be readily accessible.  My concern with the application – and in fact it turns on the second point, is whether there is a risk that the implied undertaking would be breached, and whether I’m satisfied that it provides insufficient protection.  On the authorities, the onus rests with the applicant for such an order to establish that there are circumstances that demonstrate that risk. Sometimes they are described as extraordinary circumstances, such as in the Tri-Star litigation (Tri-Star Petroleum Company v Australia Pacific LNG Pty Ltd [2017] QSC 136). Often that is satisfied in a case where the parties are direct trade rivals (Mobil Oil Australia Ltd v Guina Developments Pty Ltd [1996] 2 VR 34).

1. Here, the evidence doesn’t show that the parties are direct trade rivals. During the oral hearing it became clear that the concern is the relationship between Pembroke and the entity which is, in fact, the trade rival to Namrog – the Acton family – whatever or however they constitute their enterprise.  I’m not satisfied that Namrog has established there is a risk that Pembroke would breach its implied undertaking, which does restrain it from providing the documents to the Acton family or the Acton operation. To do so would be ancillary to the purpose for which Pembroke received the documents. 

1. There is nothing before the court except evidence of an arrangement that the owner of the land, Pembroke, which I’m satisfied has purchased these properties for mining purposes, has an agistment arrangement with a cattle enterprise that had been operating on those properties for some time.

1. That’s not enough to persuade me that there is a risk the implied undertaking would be breached. On that basis, I would not make the order that is sought. 

1. I should note that the implied undertaking relates to material that is disclosed during the course of proceedings. It may be that, down the track during the hearing itself, if either party seeks to put some of this material into evidence in support of their case, there may well then be a basis for some form of protection, and that might be a non-publication order.  Often that gets sorted out during a hearing by consent between the parties, but at this stage it’s premature. 

1. I do note, on that point though, that Pembroke’s counsel Mr Holt has drawn my attention to the fact that none of this material is in evidence.  It’s not attested to by any lay witness.

1. Ultimately, if Namrog wants to rely on that evidence to make its claim, that will have to be attended to. 

1. So, the application is dismissed.  I will make the usual order that flows from that and I will order costs in favour of the respondent to the application, which is Pembroke.