Woodside Energy Ltd & Ors v Electricity Generation Corporation t/as Verve Energy; Electricity Generation Corporation t/as Verve Energy v Woodside Energy Ltd & Ors [2013] HCATrans 199 (23 August 2013)

Last Updated: 27 August 2013

[2013] HCATrans 199

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Perth No P15 of 2013

B e t w e e n -

WOODSIDE ENERGY LTD (ABN 63 005 482 986)

First Applicant

BP DEVELOPMENTS AUSTRALIA PTY LTD (ABN 54 081 102 856)

Second Applicant

CHEVRON AUSTRALIA PTY LTD (ABN 29 086 197 757)

Third Applicant

BHP BILLITON PETROLEUM (NORTH WEST SHELF) PTY LTD (ABN 41 004 514 489)

Fourth Applicant

SHELL DEVELOPMENT (AUSTRALIA) PTY LTD (ABN 14 009 663 576)

Fifth Applicant

and

ELECTRICITY GENERATION CORPORATION (ABN 58 673 830 106) T/AS VERVE ENERGY

Respondent

Office of the Registry
Perth No P16 of 2013

B e t w e e n -

ELECTRICITY GENERATION CORPORATION (ABN 58 673 830 106) T/AS VERVE ENERGY

Applicant

and

WOODSIDE ENERGY LTD (ABN 63 005 482 986)

First Respondent

BP DEVELOPMENTS AUSTRALIA PTY LTD (ABN 54 081 102 856)

Second Respondent

CHEVRON AUSTRALIA PTY LTD (ABN 29 086 197 757)

Third Respondent

BHP BILLITON PETROLEUM (NORTH WEST SHELF) PTY LTD (ABN 41 004 514 489)

Fourth Respondent

SHELL DEVELOPMENT (AUSTRALIA) PTY LTD (ABN 14 009 663 576)

Fifth Respondent

Summonses

KEANE J

TRANSCRIPT OF PROCEEDINGS

FROM BRISBANE BY VIDEO LINK TO PERTH

ON FRIDAY, 23 AUGUST 2013, AT 11.00 AM

Copyright in the High Court of Australia

____________________

MS S.E. RUSSELL: May it please the Court, your Honour, I appear on behalf of the applicants in P15/2013, and on behalf of the first to fifth respondents in P16/2013. (instructed by Lavan Legal)

HIS HONOUR: Thanks, Ms Russell. Ms Russell, I have looked at your submissions and the material. There are a couple of areas where I would appreciate some assistance. The first is in relation to the material. Insofar as the application is based on a concern that the ring fence protocol not be breached lest the conditions of the ACCC approval be breached, having looked at those conditions, it is not clear to me that any publication which might occur in connection with these proceedings in Court would amount to a contravention of those conditions.

MS RUSSELL: Your Honour, I appreciate your point and with regard to that the application is brought on behalf of my clients on the basis that, for an abundance of caution, they do not want to be in any danger that they may be in contravention of the obligations. I appreciate, your Honour, that this specific protocol requires that none of the marketing information, as it is there defined, is disclosed effectively to people involved in the marketing. The concern arises in this way and that is that if the information is available for inspection or otherwise referred to, that there may be some passing on of that information to those people. There is also an issue with regard to the general commercial sensitivity of the information.

HIS HONOUR: Yes. I understand that and I am not unsympathetic to it. The other area where I would appreciate your assistance relates to the construction, or the operation, of section 77RG(2)(d) which provides that:

Each of the following persons is entitled to appear and be heard by the High Court on an application for a suppression order or non-publication order:

. . .

(d) a news publisher –

Now, I understand that the Court has corresponded with your instructing solicitors in relation to this and I understand the response which is that there are a lot of news publishers and it would be inconvenient to comply and that after all these orders have already been made – or orders to this effect have already been made by the courts below. It seemed to me that, first of all, it is not apparent that the new provisions of 77RG of the Judiciary Act fell to be addressed by the courts below and, secondly, I have to say I have a bit of a difficulty in seeing how, if I acceded to this application today, without having been satisfied that news publishers have been alerted to the application for the order, how it could be said that the order would have been made consistently with their entitlement to appear and to be heard.

MS RUSSELL: Your Honour, I understand the point and as your Honour has identified, in a practical sense it would be very difficult to serve all news publishers, even the very broad definition of that term in the legislation. It could potentially include anyone who publishes news nationwide and potentially further. The provision itself does not make any express requirement for service, but I appreciate there was an entitlement to be heard - - -

HIS HONOUR: Not just to be heard, to appear. At the moment, I have to say I am struggling to understand how that entitlement can be treated seriously if they are not served. They stand in a different position to the category of people referred to in (2)(e) which is:

any other person who, in the Court’s opinion, has a sufficient interest in the question –

I mean, so far as the Court’s opinion is concerned there is no reason to have that opinion about anybody else, but news publishers are treated as having an entitlement. I understand this is the first time this question has arisen in a court. Am I right in thinking that these provisions, or their State analogue, were not required to be addressed by the Western Australian courts below?

MS RUSSELL: Your Honour, that is correct. These provisions were not addressed there. There were other provisions that were applied. I think your understanding is also my understanding, your Honour, that this is the first time it has fallen to be addressed, as far as I am aware, as to the requirement to serve the news publisher. I am not sure if this necessarily assists directly, but what I might just seek to clarify is that in this matter of course we are dealing with the applications for special leave in each matter. The material before the Court is very limited and, of course, in making any oral argument counsel will be careful to ensure that they do not necessarily divulge any of the information sought to be suppressed and the only other basis upon which information may be published or otherwise disclosed is if third parties are allowed to inspect the documents that have been filed with the Court and the information relates just to the volumes and prices and such nature in relation to gas supply agreement.

HIS HONOUR: Yes, I have noticed that what has been redacted has been the volumes and quantum and the duration of some of the obligations. I was wondering whether, with a view to being as practical as possible, it would meet your concerns if an order were made under 77RH, which deals with interim orders, under which:

the Court may, without determining the merits of the application, make the order as an interim order to have effect, subject to revocation by the Court, until the application is determined.

I was wondering whether it would meet your concerns and your clients’ concerns if an order were to be made on an interim basis under that provision basically ordering that the joint application book containing the judgments and the arguments be sealed or be ordered not to be published or made available, other than in the redacted form, to anyone other than the Court and that that order be made pending the hearing of the application for special leave and that your summons otherwise be adjourned to the hearing of the application for special leave.

MS RUSSELL: Your Honour, that certainly sounds like a very practical solution. May I take a moment to just take some instructions?

HIS HONOUR: Yes.

MS RUSSELL: Thank you. Your Honour, that would be a practical solution that I think would work. What I might add, if I may, is in addition to the information marked in the joint application book, of course, filed separately to the joint application book are also some of the documents

contained within that, so if I could seek that the orders would also apply to other documents in that category so that they are also redacted and not to be disclosed other than in that form.

HIS HONOUR: All right.

MS RUSSELL: I can identify those for your Honour.

HIS HONOUR: While you are getting those, collecting those, what I might do is give some brief reasons indicating the sort of orders I am disposed to make and then we can come back and you can give me that information and we can actually settle the terms of the orders.

MS RUSSELL: I am obliged to your Honour. May I mention one other thing and that is it occurs to me that I am taking it that Mr Heath’s affidavit is read and that may assist.

HIS HONOUR: Yes.

MS RUSSELL: It would also be available for inspection and I think exhibit GJH-8 includes some of the information in the order of the Court of Appeal with regard to quantum that I would also seek be included in the order for redaction.

HIS HONOUR: Yes. Let me just deal with some brief reasons and then we will come back and get the various documents that we are going to deal with in this way.

MS RUSSELL: Thank you, your Honour.

HIS HONOUR: The applicants in P15/2013 and the respondents in P16/2013 seek orders under section 77RE(1)(b)(iv) of the Judiciary Act 1903 (Cth), or under the Court’s inherent jurisdiction, to suppress and restrict publication of and access to certain information contained in the documents filed in these proceedings. The respondent in P15, which is the applicant in P16, consents to the making of the orders sought.

The applicants are parties to the North West Shelf Gas Joint Venture under which they produce domestic gas in Western Australia. They are also competitors in other ventures for the production of domestic gas in Western Australia. The applicants jointly market domestic gas from the North West Shelf Project and give effect to gas supply contracts under authorisations granted by the Australian Competition and Consumer Commission (“the ACCC”). These authorisations are conditional upon the applicants adhering to what is described as “a ring fencing protocol” to address the potential for the anticompetitive effect of competing ventures obtaining confidential gas marketing and sales information in relation to the production and sale of domestic gas. The effect of the protocol is to impose restrictions on the dissemination of confidential and commercially sensitive information by the participants in the joint venture.

During the course of the litigation between the parties and the courts below, orders were made which restrict access to information identified as confidential and commercially sensitive. The publicly available reasons for judgment of the courts below have been redacted to suppress all references to the figures for gas prices, volumes, tolerances, periods and the quantum of liability.

The applicants now seek orders suppressing publication of, and general access to, information of the kind which they are prohibited from disseminating themselves under the ring fencing protocol and that are the subject of the orders made by the courts below. It is submitted that it is in the interests of the proper administration of justice that publication of, and access to, this information be suppressed by an order of this Court.

At the outset it must be noted that section 77RG(2)(d) of the Act provides that a “news publisher” is “entitled to appear and be heard by the High Court on an application for” an order of the kind sought by the applicants. The term “news publisher” is defined by section 77RA to mean:

a person engaged in the business of publishing news or a public or community broadcasting service engaged in the publishing of news through a public news medium.

The applicants, understandably perhaps, have taken the view that it would be inconvenient to serve all those persons in Australia, who would be comprehended by that definition, with their current application to this Court. That stance gives rise to the difficulty that if I were to accede today to the application for a suppression order, in the present circumstances that order would seem to have been made in disregard of the entitlement created by section 77RG(2)(d) of the Act.

The second difficulty with the application is that it is grounded in section 77RF(1)(a) of the Act which authorises the making of an order on the ground that “the order is necessary to prevent prejudice to the proper administration of justice”. Whether the focus is upon the language of section 77RF(1)(a) of the Act, or the Court’s inherent jurisdiction, the scope for the making of an order which is, prima facie, in conflict with the primary objective of the administration of justice in safeguarding the public interest in open justice remains a concern. Such an order can be justified by the need to prevent prejudice to the proper administration of justice in cases where the administration of justice would be rendered impracticable or nugatory by the publication of, or provision of, access to the information in question: see Scott v Scott [1913] AC 417, especially at 445 to 446; Dickason v Dickason [1913] HCA 77; (1913) 17 CLR 50 at 51; Russell v Russell [1976] HCA 23; (1976) 134 CLR 495 at 520 and K-Generation Pty Ltd v Liquor Licensing Court [2009] HCA 4; (2009) 237 CLR 501 at 520, paragraphs 48 to 49.

I am not presently persuaded that the orders sought would render the resolution of the application for special leave in open court without restrictions of the kind sought today impracticable in the sense that the relief sought by the parties would be rendered nugatory. I do see, however, the strength of the argument that the prospect of publicity of the kind feared here might well have deterred the pursuit of this litigation and that in light of the orders previously made it would be invidious for this Court now to deny the protection of commercially sensitive information, previously assured to the parties by the orders made by the courts below. Having said that, it must also be said that it does not appear that the courts below were obliged to address the requirements of section 77RG(2)(d) of the Act or any State analogue of that provision.

Accordingly, I am not disposed to reach a final conclusion on the question whether the orders sought are necessary to prevent prejudice to the administration of justice and I am not satisfied that I could make that order consistently with section 77RG(2)(d). I am, however, willing to make a limited interim order pursuant to the provisions of section 77RH(1) of the Act.

In that regard I am prepared to make an order without determining the merits of today’s application as an interim order to have effect subject to revocation by the Court until the application is finally determined. To that end, I would propose to adjourn this application to the hearing of the application for special leave for the final determination of today’s application and in the interim, without determining the merits of the application, to make an order for the non-publication and for the keeping confidential of the joint application book and of documents associated with it. In that regard, the associated documents to which I refer are exhibit GHJ-8 to the affidavit of Gregory James Heath filed in support of the summons and – Ms Russell, the other documents are?

MS RUSSELL: Your Honour, there is a reference in matter P15/2013 at pages – sorry, in the application for special leave and the draft notice of appeal which while it has been filed separately to the joint application book they do appear at pages 126 and 129 respectively of the joint application book with the proposed redaction marked. So, your Honour, the documents would be the application for special leave to appeal filed – I cannot read the seal on my copy, but I think it is 21 March 2013.

HIS HONOUR: Yes, very well.

MS RUSSELL: There are some further documents, your Honour – the draft notice of appeal as filed on 15 April 2013 also in P15/2013 and there are also some minor references in that matter in the respondents’ summary of argument and in the applicants’ summary of argument in reply and then in matter P16 there are also some references in the application for special leave to appeal and draft notice of appeal and in the applicants’ summary of argument. Your Honour, those are marked in the joint application book but what I would suggest is they were also – perhaps my instructing solicitors could provide to the Court copies of all the documents that are required to be redacted so that the other documents could be sealed.

HIS HONOUR: Well, perhaps with a view to doing as little as possible to disinform the public, consistently with your clients’ concerns, perhaps your clients should be given liberty to remove the documents – the applications and summaries of argument that have currently been filed, which are not redacted, and to be replaced with the redacted documents that have been provided to me so there would simply be that substitution. There would not be any need for any further order. We would not need to conceal those documents. They would still be available to the public and the public could be informed as to what was in issue, but with the redactions.

MS RUSSELL: Such that only the redacted documents would be available on the Court file, your Honour?

HIS HONOUR: Quite. So far as the joint application book is concerned, the order that will be made in relation to that would be that, on the interim basis that I have mentioned, it not be made available for inspection, save by order of the Court. Would that meet the concerns of your clients?

MS RUSSELL: Its entirety – so other than in a redacted form it will not be made available at all without order of the Court?

HIS HONOUR: No.

MS RUSSELL: Sorry, your Honour.

HIS HONOUR: Yes, sorry, I was agreeing with that. On the footing that the application for special leave, the draft notice of appeal and the arguments – the summaries of argument, the written summaries of argument would all be on the Court file, albeit in redacted form. The joint application book in the unredacted form would be not available for general inspection. That is what I had in mind. Would that be a satisfactory state of affairs?

MS RUSSELL: Your Honour, that would be satisfactory and, in fact, I have some further redactions to note if the book was to be available for inspection in the redacted form – so that will save me troubling your Honour with that further detail.

HIS HONOUR: That is a very happy circumstance. All right, very well. If I could ask you if you could have your solicitors prepare and provide to the Court minutes of the order we have discussed, I will initial that order and place it with the papers.

MS RUSSELL: Your Honour, I am obliged. May I mention one more thing just for certainty? Some of the documents that were sought to be redacted have, of course, been filed by the respondents in matter P15 and the applicants in matter P16. I just wanted to clarify the extent to which the orders extend to those being replaced on the Court file in the redacted form.

HIS HONOUR: My intention is that it should.

MS RUSSELL: Your Honour, thank you for the clarification.

HIS HONOUR: My understanding is that they have no objection to that, on the footing that they were prepared to consent to the broader orders that you sought.

MS RUSSELL: Your Honour, yes, indeed, they notified the Court they supported the application.

HIS HONOUR: Yes, very well. Any question of costs of today?

MS RUSSELL: The summons sought costs in the application and my opponent – well, they are not opposing, but the other parties have not indicated any issue with that.

HIS HONOUR: Very well. I will order that the costs of today be costs in the application.

MS RUSSELL: Thank you, your Honour.

HIS HONOUR: If you could have your solicitors provide to the High Court Registry minutes of the order in conformity with what we have discussed, I will initial those orders and place them with the papers.

MS RUSSELL: Thank you, your Honour.

HIS HONOUR: Thank you. Adjourn the Court, please.

AT 11.27 AM THE MATTER WAS CONCLUDED