Cockburn cement ltd v. Minister for environment

Australia

16.01.2019

Civil

Court has power to manage access to its records in a pending action.

The present application is about restricting access by persons who are not parties to the action. The applicant, Cockburn Cement Limited, has applied for judicial review of a decision of the Minister for Environment on an appeal under Section 102 of the Environmental Protection Act 1986. In general terms, the appeal related to conditions on a license granted pursuant to Section 59(1) of the Environmental Protection Act. In support of the application for review, Cockburn Cement filed an affidavit of Justin Leigh Miller, dated 21 December 2018. Mr Miller is the Technical Manager WA/NT for Cockburn Cement.

On 24th December 2018, Cockburn Cement also filed an application by summons for an order under Order 67B Rule 5 that, until further order of the Court, access to the following documents be restricted only to the Court and the parties to these proceeding: (a) the Affidavit of Justin Leigh Miller in support of the Applicant's application for judicial review (Affidavit); (b) any affidavits, submissions and or exhibits subsequently filed by any party after 21 December 2018 which refer to or relate to the applicant's commercial operations or affairs (Subsequent Documents).

The application was brought on the ground that the affidavit of Mr Miller, and its annexures, contain information which is confidential business information and in the nature of trade secrets or would reveal information that has a commercial value the Applicant where release of that information could reasonably be expected to diminish or destroy that value. For example, it contains information about the Applicant's business such as: (a) the content and break down of emissions; (b) operational specifications; and (c) production methods.

A person who is not a party to proceedings is entitled to limited information, as of right, under Order 67B Rule 6 of Rules of the Supreme Court, 1971. Otherwise, by Order 67B Rule 11(3), a person who wants access to information or a record or other thing must apply for access. The application is made to the principal registrar, and the applicant need not serve the application on, or give notice of it to, any person unless the court orders otherwise. Under Order 67B Rule 12, the court may order the application be served on a person specified in the order, and may request any person to give it submissions about the application.

An application for an order under sub-rule (3) must (a) state the grounds for the application; (b) identify the information, record or thing to which the order should apply; (c) state the person, or class of persons, whose access to the information, record or thing should be restricted by the order; (d) state any conditions that should apply if the Court were to give access to the information, record or thing; (e) state the period for which the order should apply.

The Rule does not require an applicant to show that the confidential information has commercial value. And an order under Order 67B Rule 5 could extend to discussions, correspondence and consultation that occurred in confidence. The court has power, apart from the provisions of Order 67B, to manage access to its records in a pending action. It is appropriate to regulate any application for access to information rather than impose a blanket restriction on documents yet to be filed.

Present application does not fit neatly into the scheme established under Order 67B. The first affidavit of Mr Miller is confidential and that access to that affidavit should be restricted for all third parties (that is, all persons other than the court and the parties to the action).

The order will apply until the determination of the principal application, when the application to restrict access may be renewed. The affidavit of Justin Leigh Miller, dated 21 December 2018, contains information which is confidential to the applicant, Cockburn Cement Limited. Pursuant to Order 67B Rule 5 of the Rules of the Supreme Court, access to the affidavit of Justin Leigh Miller, dated 21 December 2018, be restricted to all persons except the court and the parties to the principal proceedings. Subject to any further order, the restriction in Order 2 is to apply until the determination of the principal proceedings.

Tags : Information Access Restriction

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