IN THE SUPREME COURT OF VICTORIA	Not Restricted	
AT MELBOURNE
COMMERCIAL COURT	

S ECI 2014 00146

CARGILL AUSTRALIA LIMITED (ACN 004 684 173)	Plaintiff	
		
v  		
		
VITERRA MALT PTY LTD (ACN 096 519 658) AND OTHERS	Defendants	
		
and		
		
CARGILL, INCORPORATED AND OTHERS	Third parties	

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JUDGE:	ELLIOTT J	
WHERE HELD:	Melbourne	
DATE OF HEARING:	On the papers	
DATE OF RULING:	4 June 2021	
CASE MAY BE CITED AS:	Cargill Australia Ltd v Viterra Malt Pty Ltd (No 27)	
MEDIUM NEUTRAL CITATION:	[2021] VSC 321	

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EVIDENCE – Confidentiality – Existing agreed confidentiality regime – Access to confidential documents – Defendants’ application for removal of confidentiality order - Principle of open justice – Whether circumstances exist to justify continuation of confidentiality – Confidentiality not pressed for certain documents - Confidentiality not pressed upon offer being made only to use tendered documents for the purposes of the proceeding - Confidentiality regime removed in relation to remaining documents pressed on this application – Remaining issues not established to be real issues necessary of determination at this time - Co-operative approach to refining issues – Remainder of summons dismissed – Costs ordered to be costs in the proceeding.

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APPEARANCES:	Counsel	Solicitors	
For the plaintiff and the 1st and 
2nd third parties	N/A	Gilbert + Tobin	
			
For the defendants	N/A	Johnson Winter & Slattery	
			
For the 3rd third party	N/A	Maddocks	
			
For the 4th, 5th and 7th third parties	N/A	Gilchrist Connell	
			
For the 6th third party	N/A	HWL Ebsworth	

HIS HONOUR:
A.	Introduction
1	The issues that are the subject of this application arose largely in response to an application made by a non-party, Copagest NV (“Copagest”), seeking to extend and expand an existing confidentiality regime.  In around mid-April 2021, shortly before the Copagest application was due to be heard, the defendants (“the Viterra Parties”) indicated not only that they opposed Copagest’s application, but that they sought leave to make an application concerning the removal of the confidentiality regime (to which they no longer consented).  In addition, they filed evidence to the effect that a key purpose of their application was that the Viterra Parties needed less restricted access to “some” of the confidential documents so that they could properly understand the court’s reasons when they were published, and be properly advised and give informed instructions as to how to proceed after judgment was delivered.
2	The Viterra Parties’ application seeks to release various persons from undertakings previously given in relation to specific documents provided by the plaintiff, Cargill Australia Ltd (“Cargill Australia”), and the first third party, Cargill, Incorporated (“Cargill, Inc”, together, “Cargill”).  The persons who have provided confidentiality undertakings include the Viterra Parties’ in-house counsel, Matthew Michael Weber (“Weber”), lawyers of their former solicitors, King & Wood Mallesons (“Mallesons”), information technology staff of Mallesons, the Viterra Parties’ external counsel, independent experts and lawyers of their current solicitors, Johnson Winter & Slattery, and Cite Legal.  
3	Originally the Viterra Parties’ application concerned 143 documents the subject of the confidentiality regime, comprising both tendered and untendered documents.  Helpfully, in its initial response to the Viterra Parties’ application, Cargill agreed to confine their confidentiality claims from this point on to only 40 documents; 17 of which were tendered and the remainder of which were simply discovered documents not part of the evidence at trial.  While Cargill maintained the documents identified remained confidential, given the lapse of time and the change of circumstances, it was accepted that there was no longer any need for them to be the subject of the confidentiality regime.
4	The hearing for both Copagest’s application and the Viterra Parties’ application was on 6 May 2021.  Before any application was made, I expressed my disquiet about the position of both the Viterra Parties and Cargill regarding the positions they were taking in relation to some aspects of the Viterra Parties’ application, and explained why.  
5	Copagest’s application was heard, and the ruling was reserved.  Before the Viterra Parties commenced their application, the parties were directed to discuss how the issues on that application could be refined.  After a short adjournment, Cargill, again helpfully, reduced the number of documents to which it continued to maintain the confidentiality regime ought to apply.  In the category to which there was no longer any substantial opposition, documents were identified over which either Cargill agreed to waive its own confidence, or over which it could not agree to orders because of confidentiality commitments Cargill owed to other parties with whom they had commercial agreements.  As to the latter, Cargill stated that provided the usual confidentiality that attached to discovered documents was maintained, Cargill only sought formally to maintain confidentiality (and acknowledged it would not be in breach of any of its obligations if court orders were made as sought).  The court was also informed that the Viterra Parties had offered, also helpfully, to agree to provide an undertaking that the protection provided by the principles explained in Home Office v Harman would apply to all documents released from the confidentiality regime, including documents that were tendered the trial.  On this basis, in relation to documents tendered at trial, Cargill only sought to maintain the applicability of the confidentiality regime in relation to 17 documents.  However, otherwise the Viterra Parties position remained substantially unchanged.
6	The Viterra Parties were informed that I had been through all of the documents in dispute and found it difficult to see how some of them could possibly be needed for the purpose identified by the Viterra Parties.  In those circumstances, they were invited to confine their application to documents that it was likely that they actually needed to review.  Senior counsel for the Viterra Parties informed the court that he was bound by his instructions that the Viterra Parties maintained their position that the confidentiality regime was unnecessary in its entirety, which required consideration of all the documents in question, including all of the untendered documents.  I rejected this approach.  The Viterra Parties were informed that, presently, I would determine any application based upon consideration of documents that it was likely would be materially relevant.  The application was adjourned so the Viterra Parties could obtain further instructions and identify with specificity the documents they considered they actually needed to review for the stated purpose.  
7	The ruling on Copagest’s application was given on 11 May 2021 (“Ruling 26”).  On that occasion, directions were given in relation to the Viterra Parties’ application.  To accommodate the convenience of counsel, the hearing of that application was fixed for 10.00am on 31 May 2021.  The Viterra Parties informed the court that in light of what had transpired they were only contesting 13 of the tendered documents that Cargill continued to press to be subject to the confidentiality regime.
8	Thus, the Viterra Parties acknowledged that, based on the information currently available to them, it is unlikely they will need to have access to a number of the remaining confidential documents for the purposes of this proceeding.  Accordingly, the Viterra Parties have agreed to exclude a number of  documents from consideration in the current application (on the basis that they may seek leave to apply should the contents of those documents become relevant to considering the eventual judgment or to challenge the confidentiality regime in its entirety). 
9	Also on 11 May 2021, orders were made releasing those persons who had given undertakings in relation to confidential documents to the extent that Cargill no longer pressed that the confidentiality regime ought to apply to those documents  This was done on the basis that the parties affected, through their legal representatives, undertook not to use any of the documents released from the confidentiality regime (including tendered documents) otherwise than in relation to this proceeding.
10	Upon considering the reasons in Ruling 26, on 26 May 2021 Cargill further agreed to the confidentiality regime not applying in relation to 3 of the 13 documents identified by the Viterra Parties.  In this context, at the suggestion of the Viterra Parties, the parties agreed the application be determined on the papers.  Cargill stated this was agreed to “in the interest of efficiency and avoiding further costs and use of resources for the parties and the Court”.
11	It falls to the court to consider the necessity of ongoing confidentiality obligations over the remaining 10 tendered documents.  All of these documents fell into the category of documents in relation to which Cargill was unable to consent to them being released from the confidentiality regime because of obligations it owed to other persons arising from its commercial dealings.
12	Both the Viterra Parties and Cargill have taken a sensible approach in seeking this matter be resolved on the papers.  The Viterra Parties indicated that they seek to adjourn the balance of their summons to a date after delivery of reasons for judgment.
B.	Background
13	The key facts of the proceeding have been provided in sufficient detail elsewhere, and the facts particular to the information currently being considered have been set out in the previous ruling by which the court considered the dissemination of confidential discovered documents.  It is sufficient then to provide a brief overview of the relevant facts.
14	On 4 August 2013, Cargill Australia agreed to purchase a malting company, being the second third party, Joe White Maltings Pty Ltd (“Joe White”), and some assets used in the business Joe White operated, from the first to third defendants.  Each of these defendants was part of a corporate group owned by the fourth defendant, Glencore International AG (“Glencore”).  The purchase was completed on 31 October 2013.  Cargill Australia brought this proceeding in October 2014 against the Viterra Parties, claiming a failure to disclose material information during the sale process which it alleged amounted to, amongst other things, breaches of contract and contraventions of section 18 of the Australian Consumer Law (set out in Schedule 2 of the Competition and Consumer Act 2010 (Cth)). 
15	The trial commenced on 18 June 2018.  Early in the trial, a witness under cross-examination disclosed that Cargill, Inc was contemplating a sale of Joe White as part of the sale of the entirety of Cargill, Inc’s global malting business (“the Sale”).  Upon learning of this, the Viterra Parties made a call for the documents referred to in this evidence.  Naturally, Cargill, Inc considered information relating to the possible sale, including details about Joe White’s value or any possible sale price, was confidential.  
16	After a ruling that documents relating to the valuation or to the disposition of Joe White were relevant to issues in the proceeding, orders were made for discovery of any such documents (“the Confidential Documents”).  An appropriate confidentiality regime was put in place so that the Viterra Parties and other parties to the proceeding could have access to the relevant information.
17	Upon the giving of confidentiality undertakings by external lawyers and independent experts of the Viterra Parties and other parties, the Confidential Documents were made available to them.  The confidentiality undertakings were not given to the court, but to the Cargill Parties (being Cargill Australia, Cargill, Inc and Joe White).  On 14 September 2018, it was ordered that Weber be given access to the Confidential Documents.  Those orders were made subject to Weber giving an undertaking to the court substantially in the form annexed to an earlier ruling, and permitted Weber to inspect the Confidential Documents and discuss them with any of the external lawyers and independent experts who had already signed confidentiality undertakings with respect to the same documents.
18	The Sale was completed on 31 October 2019.
19	For the reasons stated in Ruling 26, the application made by the non-party, Copagest, was dismissed.  As outlined above, it had sought that certain information be kept confidential, and to extend and expand the operation of orders previously made regarding the redaction of certain confidential information from the transcript of the trial.  Partly in response to Copagest’s application, the Viterra Parties sought release from confidentiality undertakings.  
20	The Confidential Documents now requiring consideration are as follows:
(1)	“Document 72”, a letter from Gilbert + Tobin to Mallesons dated 31 January 2019 which contained the overall price for the Colombo transaction and the value allocated to the Asia Pacific region.
(2)	“Document 76”, an executed deed between Copagest and Cargill, Inc dated 20 December 2018 which comprised a binding offer by Axéréal SCA (“Axéréal”) for the global malt business.
(3)	“Document 77”, a draft of the master sale and purchase agreement between Copagest and Cargill, Inc.
(4)	“Document 86”, a document containing confidential information of a non-party in relation to the Colombo sale process.
(5)	“Document 87”, Axéréal’s non-binding offer letter for Cargill’s global malt business.
(6)	“Document 88”, a document containing confidential information of a non-party in relation to the Colombo sale process.
(7)	“Document 89”, Axéréal’s binding offer letter for Cargill’s global malt business.
(8)	“Document 92”, a letter from Copagest to Cargill, Inc dated 29 March 2019 regarding the Colombo transaction.
(9)	“Document 133”, the executed master sale and purchase agreement dated 23 April 2019 between Cargill, Inc and Copagest.
(10)	“Document 139”, a letter dated 30 September 2019 from Cargill, Inc to Axéréal confirming allocations in relation to the Colombo transaction.
C.	Legal principles
21	There was no real contest as to the principles relevant to access to confidential documents produced on discovery, which are as follows:
(1)	A party to litigation generally has a right to have access to documents relevant to the issues in the proceeding.  This is particularly so when it is a defendant seeking access to documents from a plaintiff who has invoked the jurisdiction of the court.
(2)	Confidentiality is not normally a sufficient reason to deny inspection of discovered material.  In most cases, the fact that the documents may not be used except for the purposes of the litigation concerned will be sufficient protection for the party producing them.  However, where there is a trade rivalry between the parties, other considerations arise.
(3)	The onus lies with the party seeking to impose restrictions to demonstrate the appropriateness of those restrictions.
(4)	In relation to whether or not access to confidential documents should be granted, the factors to be considered are as follows:
(a)	The degree of relevance of the document or documents.
(b)	The extent to which the document or documents are confidential, including whether the information has already been disclosed in the proceeding.
(c)	The use to which the information might be put once it is known, such as by an opposing party who is a trade rival or is also an opposing party in another proceeding (or an anticipated or pending proceeding).
(d)	The utility or procedural fairness, or otherwise, of imposing restrictions or conditions, including limiting production to certain persons upon the provision of confidentiality undertakings. 
(e)	Any other matters relevant to the due administration of justice, including ensuring compliance with the overarching purpose in the Civil Procedure Act 2010 (Vic).
D.	The Viterra Parties’ submissions
22	The Viterra Parties submitted that having regard to the principles of open justice, the Confidential Documents were no longer confidential and the restrictions were no longer justified.
23	The Viterra Parties put forward 2 reasons for the release of obligations under the confidentiality regime.  
24	First, it was submitted that the confidentiality regime applying to the Confidential Documents was stale because the Sale was completed some time ago and the documents were all prepared prior to the completion of the Sale.  When it was imposed, the confidentiality regime had been justified on the basis of protecting the confidentiality of what was then a confidential sale process.  The Sale was completed on 31 October 2019 (more than 1 and a half years ago) and both Cargill and the Viterra Parties are no longer involved in the malt business or have interest in participating in the malt business in the future.  
25	The Viterra Parties submitted that it was incumbent upon the Cargill Parties to explain why the continuation of the regime, in whole, or in part was justified.
26	Secondly, the Viterra Parties submitted that they should be able to obtain instructions on the forthcoming judgment in the proceeding unfettered by the confidentiality regime, and that their ability to do so would be impeded if the confidentiality regime remained in place.  This was submitted on the basis that knowledge of some of the contents of the Confidential Documents would be required, or at least beneficial, to comprehend the court’s reasons for judgment, or why or how the court formulated any amount of damages and to obtain necessary advice on any appeal or cross-appeal.  Further it was submitted that the wording of the undertakings has the potential to create practical difficulties, both due to the risk of inadvertent disclosure of the contents of the documents “in any way”, and also because of the obsolete reference to the Viterra Parties’ former solicitors.
27	Specifically, with regard to the 10 Confidential Documents that remained in issue, the Viterra Parties submitted that those documents were all expressly referred to in evidence adduced or in submissions made in the proceeding, and for that reason it is likely, or reasonably possible, that the information in those documents will need to be made available to the Viterra Parties and their officers and employees in order for them to properly understand the reasons for judgment.
28	Further, the Viterra Parties sought a costs order, on the basis that such an order would reflect the success of their summons, including in light of the concessions made.
E.	The Cargill Parties’ submissions
29	The Cargill Parties filed an affidavit in opposition to the Viterra Parties application on 27 April 2021.  That affidavit addressed documents that Cargill sought to keep the subject of the confidentiality regime at that time.  In relation to the 10 remaining Confidential Documents, that affidavit contained evidence to the effect that disclosure beyond the confidentiality regime could cause harm to Cargill for the following reasons:
(1)	Document 72 contains the sale price for the Colombo transaction, which the parties to that transaction agreed would be treated as confidential.  Confidentiality obligations in the share purchase agreement required that the sale price and other confidential information be treated as confidential and not disclosed for 10 years.
(2)	Document 76 contains express confidentiality obligations on Cargill to not disclose the information to any other non-party without Axéréal’s consent.  Removing confidentiality could leave Cargill open to claims against it for breach of these obligations.  In addition, disclosure of  non-parties’ confidential information is likely to jeopardise Cargill’s relationships with those non-parties and may also make other parties disinclined to deal with Cargill in the future if they become aware that Cargill has failed to maintain confidentiality of the information of others.
(3)	The disclosure of document 77 would result in the same issues stated above in relation to documents 72 and 76.
(4)	Documents 86 and 88 contain information in respect of which Cargill owes confidentiality obligations to non-parties, and as such disclosure would result in the same issues stated above in relation to document 76.
(5)	Documents 87 and 89 state that their existence and contents are strictly confidential and may not be disclosed by Cargill to any other non-party without Axéréal’s prior written consent, and that they are covered by the confidentiality agreement entered into on 10 September 2018 between Axéréal and Cargill.  Disclosure of these documents outside of the confidentiality regime would result in the same issues stated above in relation to document 76.
(6)	Document 92 contains obligations owed by Cargill to non-parties, which could be breached should the information be disclosed more widely than permitted by the confidentiality regime, leaving Cargill open to claims for breach of these obligations.  Further, it was submitted that disclosure could jeopardise Cargill’s relationships with those non-parties.
(7)	The disclosure of document 133 would result in the same issues stated above in relation to documents 72, 76 and 77.
(8)	The disclosure of document 139 would result in the same issues stated above in relation to documents 72, 76, 77 and 133.  Further, the Cargill Parties relied on the same reasoning they provided for document 134, which was ultimately not pressed, which was that the document contains different ranges of multiples and value assessments which could be used by those in commercial teams to reasonably identify or calculate the range for the sale price for the Colombo transaction.
30	Despite being given the opportunity, the Cargill Parties elected not to make further submissions in response to the Viterra Parties’ submissions in relation to the 10 documents which were subject to confidentiality obligations between Cargill  and other non-parties.  Also despite these initial submissions, the Cargill Parties correctly acknowledged that should an order of the court be made releasing these documents from the confidentiality regime, it would be by compulsion and accordingly the release would not infringe the confidentiality obligations it owed.
31	The Cargill Parties did not oppose the remainder of the Viterra Parties’ application being adjourned and submitted that costs ought to be reserved until all matters the subject of the summons had been heard and determined.
F.	Determination
32	All 10 documents should be released from the confidentiality regime.  For the reasons explained in Ruling 26, the purchase price in relation to the Sale and the allocations for each region of what was Cargill’s global malt business are material matters to be referred to in the upcoming judgment and ought not be kept confidential.
33	The evidence relied upon at earlier stages of this application by the Cargill Parties did not establish the appropriateness of the confidentiality regime in relation to the 10 documents in issue.  While recognising that there may be some potential for trade rivalry between the Cargill Parties and the Viterra Parties in the future, the documents ought to be no longer the subject of the confidentiality regime for the following reasons.
34	First, a party, and particularly a defendant, will usually have a right to access documents relevant to a proceeding.
35	Secondly, the onus lies with the Cargill Parties to demonstrate the appropriateness of the restrictions on an ongoing basis.  
36	Thirdly, the documents are particularly relevant to some of the real issues in dispute, and plainly relevant to the issue of loss.
37	Fourthly, the documents were referred to in evidence and in submissions in the proceeding.
38	Fifthly, the documents are protected beyond what would ordinarily be the case because of the offer of all parties (other than the Cargill Parties) to proffer undertakings that the use of the documents by the parties shall remain limited to the purposes of this litigation notwithstanding they have been tendered.  
39	Sixthly, I do not accept the Cargill Parties’ position that orders removing some or all of the 10 remaining documents from the current restrictions will make other parties disinclined to deal with Cargill in the future.  Sophisticated commercial parties understand that any agreement as to confidentiality must always be subject to law, including orders of a court.  This was properly acknowledged by the Cargill Parties’ senior counsel.
40	On the question of rivalry, given the size of Cargill and Glencore, and the nature of their existing business, there must be a real possibility that Cargill and Viterra Parties may compete in the future.  However, I do not see how the release of these documents could seriously impact on such matters, at least so as to outweigh the factors noted above.  Both these parties are no longer involved in the malt business and the Sale was completed over a year and a half ago.  Further, by choosing to bring the proceeding and make the allegations the subject of the statement of claim, Cargill Australia voluntarily and knowingly opened up a vast amount of information about how Cargill goes about assessing, valuing, purchasing and running businesses.  These matters were also the subject of extensive evidence at trial.  If the additional information that is the subject of the Confidential Documents could be said to expand upon what the Viterra Parties already know about Cargill (by reason of this proceeding or otherwise), it would be marginal at most.
41	Otherwise, the Viterra Parties’ summons shall be dismissed without an adjudication on the merits.  In my view, it is inappropriate that the remainder of the summons be allowed to linger when there has not been a proper determination about whether leave ought to be granted in relation to the remaining relief sought.  In light of the order made in October 2017, no party has a right to bring an interlocutory application without leave.  If the Viterra Parties are of the view, after judgment is delivered in this proceeding and after receiving proper advice, that they genuinely need less restricted access to the remaining documents the subject of the confidentiality regime, then they may make an application for leave to seek further access.  Consistent with the Civil Procedure Act 2010 (Vic), leave will only be granted if the application is necessary to determine any real issues in dispute between the parties.  
42	In relation to the costs of this application, it will be ordered that they will be costs in the proceeding.  The key parties to the application have acted in a cooperative manner in order to narrow the issues in dispute.  Neither party should be penalised for having done so.  Further, it is highly likely that none of these issues would have been raised now but for the application made by Copagest.  These issues coming to a head (to the extent that they did) at this point in the proceeding was really a by-product of that application rather than being brought solely at the instigation of a party or parties to the proceeding.  Without seeking to descend to the all the details since the issues first came before the court on 14 April 2021, in all the circumstances it is appropriate that the costs of and incidental to this application be costs in the proceeding.
G.	Conclusion
43	Upon the undertakings as proffered being given, the orders will be as follows:
(1)	All persons who have signed confidentiality undertakings in the form (or in a similar form) annexed to the orders made on 7 August 2018 (as varied by paragraph 4 of the orders made on 11 May 2021) are released from those undertakings to the extent set out at paragraph 3 below.
(2)	Matthew Michael Weber is released from the undertaking given by him on 14 September 2018, and subsequently reaffirmed, a copy of which is annexed to Cargill Australia Ltd v Viterra Malt Pty Ltd (No 17) [2018] VSC 750 (as varied by paragraph 4 of the orders made on 11 May 2021), to the extent set out at paragraph 3 below.
(3)	The persons who signed undertakings referred to at paragraphs 1 and 2 above are released from those undertakings to the extent necessary so that they may disclose information which is contained in the documents listed in Schedule 1 of TLJ-1 of the affidavit of Thomas Litchfield Jarvis sworn 12 April 2021 numbered 48 (which includes a cover email and 2 attachments), 71, 72, 76, 77, 86, 87, 88, 89, 92, 133, and 134, and 139.
(4)	The defendants’ summons dated 21 April 2021 is otherwise dismissed.
(5)	The costs of and incidental to the defendants’ summons are costs in the proceeding.