NorthWest Healthcare Australia RE Limited (as trustee of each of NWH Australia Hold Trust No 2 and NorthWest Australia Hospital Investment No 2 Bid Trust) v Australian Unity Funds Management Ltd & Ors [2022] NSWSC 122 (16 February 2022)

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Case Name:	NorthWest Healthcare Australia RE Limited (as trustee of each of NWH Australia Hold Trust No 2 and NorthWest Australia Hospital Investment No 2 Bid Trust) v Australian Unity Funds Management Ltd & Ors
Medium Neutral Citation:	[2022] NSWSC 122
Hearing Date(s):	14 February 2022
Date of Orders:	16 February 2022
Decision Date:	16 February 2022
Jurisdiction:	Equity - Corporations List
Before:	Black J
Decision:	Orders to be made continuing the restriction on access to two of four categories of information. Parties to bring in short minutes of order within 7 days to give effect to this judgment.
Catchwords:	CIVIL PROCEDURE — Hearings — Suppression and non-publication — where parties are trade rivals — where dispute as to the confidential nature of valuation information — whether the Court should extend confidentiality orders previously made
Legislation Cited:	- Court Suppression and Non-Publication Orders Act 2010 (NSW), ss 3, 4, 6, 7 - Federal Court of Australia Act 1976 (Cth), s 37AG
Cases Cited:	- Australian Broadcasting Commission v Parish [1980] FCA 33; (1980) 43 FLR 129 - Harman v Secretary of State for the Home Department [1983] 1 AC 280 - Hogan v Australian Crime Commission [2010] HCA 21; (2010) 240 CLR 651 - Lenark Pty Limited v TheChairmen1 Pty Limited & Ors (No 2) [2012] NSWSC 415 - Lend Lease (Millers Point) Pty Ltd v Barangaroo Delivery Authority [2013] NSWSC 1848 - Mobil Oil Australia Ltd v Guina Developments Pty Ltd [1996] VicRp 54; [1996] 2 VR 34 - Re Application by LGSS Pty Ltd (aft Local Government Super) [2021] NSWSC 1613 - Rinehart v Welker [2011] NSWCA 403
Category:	Procedural rulings
Parties:	NorthWest Healthcare Australia RE Limited (as trustee of each of NWH Australia Hold Trust No 2 and NorthWest Australia Hospital Investment No 2 Bid Trust) (Plaintiff/Respondent) Australian Unity Funds Management Limited (as responsible entity of Australian Unity Healthcare Property Trust) (First Defendant/Applicant) Australia Unity Strategic Holdings Pty Ltd (Second Defendant) Australian Unity Limited (Third Defendant) Dexus Funds Management Ltd (Fourth Defendant) Dexus Wholesale Management Ltd (Fifth Defendant)
Representation:	Counsel: T Wong SC/T Phillips (Plaintiff/Respondent) S Nixon/J Rudd (First Defendant/Applicant) D Xin (Solicitor) (Second and Third Defendants) N Oates (Fourth and Fifth Defendants) Solicitors: Ashurst (Plaintiff/Respondent) Herbert Smith Freehills (First Defendant/Applicant) Allens (Second and Third Defendants) King & Wood Mallesons (Fourth and Fifth Defendants)
File Number(s):	2021/171239 (004)

1 By Notice of Motion dated 21 January 2022, the Applicant, Australian Unity Funds Management Ltd (“AUFM”) seeks orders under the Court Suppression and Non-Publication Orders Act 2010 (NSW) (“CSNPO Act”), or alternatively an inherent jurisdiction of the Court, extending orders of the Court made on 23 December 2021 to restrict access to the “Protected Confidential Information” (as defined) to any person other than external solicitors or Counsel, independent experts retained by any party to the proceeding for the purposes of the proceeding or to the Court, and to provide that such disclosure may only take place in a manner that preserves the suggested confidentiality of the information. For the reasons indicated in an ex tempore judgment, I made orders at the hearing of this application on 14 February 2022 restricting access to that information, which expire on 21 February 2022, in order to allow that information to be tendered at the hearing. The Second and Third Defendants and the Fourth and Fifth Defendants each appeared on the application but took no substantive role in respect of it.

2 There was no dispute as to the applicable principles and I have drawn my summary of them from AUFM’s written submissions, for convenience and without any disrespect to the equally thorough formulation of those principles in the submissions of the Respondent, Northwest Healthcare Australia RE Ltd (“NorthWest”). Mr Nixon, with whom Mr Rudd appears for AUFM, submits and I accept that the Court’s power to make the proposed confidentiality orders is derived from the CSNPO Act as well as its inherent jurisdiction. Mr Nixon points out that s 4 of the CSNPO Act confirms that the Court’s inherent jurisdiction is not affected by the provisions of the CSNPO Act. Section 7(b) of the CSNPO Act provides that:

3 Mr Nixon points out that a “suppression order” is defined in s 3 of the CSNPO Act as “an order that prohibits or restricts the disclosure of information (by publication or otherwise)” and he submits and I accept that the proposed orders fall within that description. Mr Nixon in turn points out that s 6 of the CSNPO Act provides that, in deciding whether to make a suppression order, the Court must take into account that a primary objective of the administration of justice is to safeguard the public interest in open justice. However, he submits that objective is not expressed to be paramount, so that open justice is to be treated as a primary objective, rather than the primary objective, and as not excluding other relevant considerations: Rinehart v Welker [2011] NSWCA 403 at [34]- [37], [81]-[83].

4 Mr Nixon submits that the grounds for making a suppression order are set out in s 8 of the CSNPO Act and include, under s 8(1)(a), where the order is necessary to prevent prejudice to the proper administration of justice (section 8(1)(a)). Mr Nixon refers to authority in respect of a corresponding provision in s 37AG of the Federal Court of Australia Act 1976 (Cth) that, in considering whether to make a suppression order, the question is whether that order is “necessary” to prevent prejudice to the proper administration of justice and that, if the answer to that question is yes, then the Court must make the order: Hogan v Australian Crime Commission [2010] HCA 21; (2010) 240 CLR 651 at [32]- [33]. He submits, and I also accept, that there is a public interest, as well as a private one, in permitting contracting parties to maintain commercial confidentiality in the ongoing performance of complex contractual arrangements: Lend Lease (Millers Point) Pty Ltd v Barangaroo Delivery Authority [2013] NSWSC 1848 at [75]. He also draws attention to authority that a suppression order will likely be “necessary” where disclosure of confidential and commercially sensitive material has the “potential to be detrimental to the interests of the beneficiaries or members of the relevant trust”: Re Application by LGSS Pty Ltd (aft Local Government Super) [2021] NSWSC 1613 at [188].

5 Mr Nixon submits and I accept that one circumstance in which it may be necessary to make a suppression order so as to prevent prejudice to the proper administration of justice is when there would otherwise be disclosure of commercially sensitive (or at least confidential) information, including to trade rivals and refers to the rationale for that principle as explained in Australian Broadcasting Commission v Parish [1980] FCA 33; (1980) 43 FLR 129 at 133 as follows:

6 Mr Nixon also points out that the situation where a disclosure of information would seriously affect its commercial value has been referred to as giving rise to an “exception” to the principle of open justice: Rinehart v Welker above at [37].

7 Mr Nixon fairly also accepts that the fact that documents are confidential will not ordinarily be sufficient reason to deny inspection by the opposite party, but emphasises the observations of Hayne J (with whom Winneke P and Phillips JA agreed) in Mobil Oil Australia Ltd v Guina Developments Pty Ltd [1996] VicRp 54; [1996] 2 VR 34 at 38, dealing with the position in respect of trade rivals, that:

8 Mr Nixon also submits that, where the relevant parties are trade rivals whose secrets would be revealed by discovery and inspection, a fair balance must be struck between the needs of the party wishing to litigate and the legitimate concerns of a trade rival to retain the secrecy of its commercially sensitive information, and that it is for the party seeking an order limiting inspection to establish that the character of each document is such that it should attract protection additional to that granted by the implied undertaking: Skyscanner Ltd v Hotels Combined Pty Ltd (No 2) [2016] NSWSC 326 at [6]. He recognises that, in accepting a confidentiality regime which limits access to external lawyers and independent experts, courts must be conscious that the parties’ lawyers must act on the instructions of someone, and that normally the person giving those instructions is entitled to see all the documents available to their advisers so they can understand the basis of any advice given to them, and personally make decisions about whether to continue or abandon litigation: Lenark Pty Limited v TheChairmen1 Pty Limited & Ors (No 2) [2012] NSWSC 415 at [11]- [15].

9 I bear these principles in mind although, here, the issues in respect of the two categories that are in dispute between the parties are largely of a factual character.

10 AUFM relied on the affidavit dated 31 January 2022 of its solicitor, Ms Ruth Overington in respect of the application. Ms Overington’s evidence was that the Australian Healthcare Property Trust (“AUHPT”), of which AUFM is responsible entity, holds a portfolio of healthcare property and related assets throughout Australia, and she also refers to the activities of NorthWest Healthcare Properties REIT, the ultimate holding company of NorthWest. Her evidence is directed to establishing that AUFM and NorthWest are trade competitors in the healthcare property market, and that much was common ground in the application. Ms Overington also refers to NorthWest’s stated purpose in pursuing the substantive proceedings, which she contends is to preserve, protect and enhance its investments in AUHPT and to potentially increase its stake in AUPHT. It is not apparent how the pursuit of litigation would, in itself, assist NorthWest in acquiring or increasing an interest in AUHPT. Ms Overington also addresses aspects of the substantive proceedings, which it is not necessary to address for the purposes of this application.

11 Ms Overington refers to documents which are the subject of redactions for confidentiality in the exhibits to affidavits of Mr Pratt and Mr Mead filed in the substantive proceedings, which reflect a relatively small proportion of the exhibits to those affidavits. The fact that a small proportion of those exhibits are subject to claims for confidentiality does not, of course, much advance AUFM’s position in this application, since it leaves open the question whether the claim for confidentiality over that portion of the documents is justified.

12 Ms Overington then classifies the claims for confidentiality made by AUFM in four categories. The first is described by AUFM as the “Confidential Non-disclosure Agreement (NDA) Information”. I will adopt the more neutral term “NDA Information” and address her evidence concerning that category below. The second and third categories of information identified by Ms Overington as subject to a claim for confidentiality were described as the “Pending Aged Care Partnership Information” and the “Confidential Tenant Information”. I will briefly address those categories, as to which there was no dispute in this application, below. Fourth, Ms Overington referred to a category described as “Confidential Valuation Information” which she described (Overington 31.1.22 [54]) as “certain value analysis and pricing parameters information concerning units in AUHPT”. I will adopt the more neutral term “Valuation Information” and address her evidence as to that matter below.

13 By a second affidavit dated 14 February 2022, Ms Overington referred to having given notice of the potential disclosure of the NDA Information to parties who had entered non-disclosure agreements with AUFM. I will refer to the outcome of that notice below.

14 NorthWest in turn relies on the affidavit dated 8 February 2022 of its solicitor, Mr Clarke. He refers to affidavit evidence of Mr Pratt served by AUFM in the substantive proceedings which identifies, in an unredacted form, dealings with several parties to potential transactions with AUFM in a manner that discloses their identity and, obviously enough, has the consequence that that information has already been disclosed to NorthWest, albeit in a manner that is arguably subject to the implied undertaking under Harman v Secretary of State for the Home Department [1983] 1 AC 280 until Mr Pratt’s affidavit is read. Mr Clarke also refers to aspects of Mr Pratt’s evidence which disclose negotiations with potential counterparties in respect of the potential transactions. Mr Pratt also refers to an independent expert’s report commissioned by NorthWest in connection with its proposal to acquire units in AUHPT in the first half of 2021, which, not surprisingly, adopted a net assets approach as a primary valuation methodology and undertook valuation cross-checks including reference to comparable transactions and distribution yields. Mr Clarke also referred to evidence of information provided by AUFM to potential investment counterparties on 31 March 2021, including “detailed financial and commercial information” with respect to its portfolio and development pipeline, and to an announcement made by Australian Unity Limited to the Australian Securities Exchange and an investor update by AUFM on 9 June 2021. It is not necessary to address the detail of the exhibits to Mr Clarke’s affidavit in order to determine this application.

15 NorthWest also read an affidavit dated 4 November 2021 of its solicitor, Mr Lukic, and tenders extracts from the exhibit to that affidavit which related to takeover offers for listed property trusts. It is also not necessary to address that affidavit or its exhibit further in order to determine this application.

16 In her first affidavit, Ms Overington outlined the content of the Valuation Information and the basis of the claim for confidentiality as follows, in evidence which I should set out at some length:

17 Ms Overington also addresses other matters which are also said to have the result that the Valuation Information is confidential.

18 There seems to me to be fundamental difficulties with Ms Overington’s evidence as to this category of information, based upon the information she has received from Mr Pratt. First, the valuation information which is the subject of this claim for confidentiality, as found in MFI-1, reflects valuations undertaken between January and June 2021. Neither Ms Overington’s evidence, nor the information provided by Mr Pratt on which it was based, paid any substantive attention to the fact that the documents for which confidentiality was claimed as Valuation Information were between six and twelve months out of date, or sought to address the extent of financial developments and developments in the property market between July 2021 and February 2022 or the extent to which they would have impacted on the currency of that valuation.

19 Second, there was an underlying ambiguity in Ms Overington’s evidence, between, on the one hand, the use of a continuing methodology valuation and, on the other, the particular figures adopted in that valuation and the outcome of that valuation at particular points in time. It is unlikely that the information provided by Mr Pratt to Ms Overington is to be understood as indicating that AUFM values the units in AUHPT, in February 2022 or on a prospective basis, by reference to the inputs to valuations of the units as they stood in the period between January and June 2021, as distinct from as they stand in February 2022 or as it projects they will stand in the future. Ms Overington does not advance the unlikely proposition, on information from Mr Pratt, that the value of AUHPT, or the components of that value, as at February 2022 or prospectively, are the same as they were between January 2021 and June 2021, and I infer from the absence of that evidence that it would not have assisted AUFM’s claim for continuing confidentiality of the information as it stood between January and June 2021. It seems to me that Ms Overington’s evidence, based on Mr Pratt’s information, goes no further than to indicate that AUFM adopts a consistent methodology for valuing units in AUHPT over time, but her evidence does not suggest that valuation methodology is so novel or idiosyncratic in its method as to have any commercial confidentiality, rather than its applying well understood valuation methodologies to AUHPT’s assets at particular points in time to derive a valuation.

20 It is also apparent from the review of the valuation information contained in MFI-1 that its components and outcome change significantly over time, and there is a significant difference in the valuation of units in AUHPT as at, for example, February 2021 on the one hand and June 2021 on the other. There is no reason to think that the change in that information over time has not continued since June 2021; and, as I noted above, no evidence was led by AUFM to the contrary, or to identify any specific information contained in those documents which remains current, as at February 2022.

21 I now turn to the parties’ submissions dealing both with wider issues and with this category of information. In its written submissions, AUFM submits that AUFM, as responsible entity for AUHPT and NorthWest are competitors or “trade rivals” as contemplated by relevant authorities, and that much is common ground. AUFM submits that NorthWest and AUFM compete for hospital and healthcare acquisitions, as well as tenants to fill their respective healthcare properties, but that does not advance its position in respect of the categories of confidential information which remain in dispute. AUFM submits that this is a case giving rise to “real risks” that confidential and commercially sensitive information in the hands of a trade rival may be misused, whether inadvertently or otherwise, in the manner adverted to in Mobil Oil above. It is not necessary to address that submission in respect of the two categories of information as to which there is no dispute that restrictions on access should be ordered, and this submission was not pressed in respect of the NDA Information in AUFM’s oral submissions. However, I am not persuaded by that submission in respect of the Valuation Information where there is no suggestion that the valuation methodologies adopted by AUFM are idiosyncratic or different from general valuation methodologies as to have any element of confidentiality about them; the specific financial information included in valuations between January and June 2021 is now out of date by several months and AUFM leads no evidence that it remains current; and the detail of that information, in valuations undertaken at several dates over that six month period, is such that it could not be “inadvertently” misused, but only misused by a deliberate breach of the implied Harman undertaking, and there is no reason to think that NorthWest would seek to breach that undertaking in order to gain access to information that was several months out-of-date.

22 Second, AUFM submits that the information over which confidentiality claims are advanced by it is limited and targeted, comprising about 160 pages out of a total of 3,800 pages of exhibits to Mr Pratt’s and Mr Mead’s affidavits. I accept that submission, so far as it goes, but a contention that a claim for confidentiality is limited does not have the consequence that it is justified. Third, AUFM submits that the proposed confidentiality orders are expressed on the basis that they operate subject to further order of the Court and could be revisited from time to time. Again, that matter does not assist AUFM, unless those claims are presently justified.

23 Fourth, AUFM referred to Ms Overington’s evidence and to the exhibit to which I have referred above, and submitted that:

I have addressed the difficulties with Ms Overington’s evidence in that respect above, and, as I noted above, that evidence and AUFM’s written submissions do not address the question whether the passage of time has displaced confidentiality in respect of valuation information.

24 Fifth, AUFM submits that the prejudice associated with the disclosure of the Valuation Information is that it would provide a competitor of AUHPT and a potential bidder for units in AUHPT with information demonstrating how AUFM approaches the task of valuation of units in AUHPT internally. I am not persuaded by that submission, which would only be made good if AUFM’s approach to that task was so idiosyncratic as to have any element of confidentiality about it, rather than involving that application of orthodox and well-known valuation principles, or the information adopted in that approach in the first half of 2021 had any real ongoing confidentiality about it. AUFM’s further submission that access to that information would give NorthWest an advantage not available to any other bidder in constructing any further acquisition proposal for the units in AUHPT, including the timing of any such bid, was undermined by the lack of persuasive evidence as to the confidentiality of the underlying information and the absence of any specific evidence that identified any way in which NorthWest could apply somewhat dated information to obtain that advantage.

25 In oral submissions, Mr Nixon fairly accepted that AUFM had the burden of showing that the orders sought by AUFM were necessary to prevent prejudice to the proper administration of justice and again emphasised the proposition that NorthWest was a competitor of AUFM, which I have addressed above, and that NorthWest had previously made a bid to acquire the units in AUHPT, which is a matter in issue in the present proceeding. Mr Nixon points to the fact that AUFM has filed evidence responding to the allegations made by NorthWest in the proceedings and submits that it would be contrary to the interests of justice that the confidentiality of relevant information would be lost by its doing so. While I accept that proposition, its premise, which was not established here, is that the contested categories in respect of the Valuation Information and the NDA Information have the relevant confidentiality about them. Mr Nixon also took me, at some length, through the various documents which comprise the Valuation Information, although his review of the content of those documents also paid little attention to the currency of the information contained in them.

26 In its written submissions, NorthWest points to the relevance of the Valuation Information to NorthWest’s claims in the substantive proceedings and that is not contested. NorthWest in turn submits, and I accept, that AUFM had not identified the basis on which the valuation methodology which it adopted was unusual or unexpected in the context of the valuation of a healthcare property trust and refers to the valuation approach adopted by the independent expert at the time of NorthWest’s proposed acquisition of an interest in AUHPT to support that submission. NorthWest also submits and I also accept that the assumptions and inputs into that valuation analysis were directed to arriving at a unit value at a point in time, and NorthWest points to the absence of a basis for finding that such information based on forecast information for the second half of the 2021 financial year and 2021 market data have any continuing currency. NorthWest also points to the disadvantage to it, if its representatives cannot give instructions by reference to their specific knowledge of the healthcare property market, in responding to AUFM’s evidence in that respect. It is not necessary to address the question of any such disadvantage, where AUFM has not established that the Valuation Information has sufficient commercial confidentiality as to warrant ongoing restrictions to access.

27 In oral submissions, Ms Wong addressed the question of the currency of the Valuation Information and the lack of evidence that that information had any continuing sensitivity, and submitted that, to the extent that any information had continuing currency, it was at a level of generality that would cause no prejudice to AUFM if it was revealed, including valuation methodologies which were in common usage. Ms Wong also submitted that NorthWest would suffer prejudice if it was unable to see the Valuation Information and provide instructions upon it. Ms Wong fairly accepted that, as I noted above, NorthWest is a competitor of AUFM in the healthcare industry, but relied on that matter to point to the likelihood that NorthWest could provide factual instructions to its solicitors as to the basis of the Valuation Information on which AUFM relied. It is not necessary to address that submission where AUFM has not established that the information had a character that warrants a continuing limitation on access.

28 Ms Wong also pointed to the possible changes of methodology over time in the valuations adopted by AUFM, although there was a dispute (which it is not necessary to resolve) as whether those changes were limited to the recognition of additional data as distinct from changes in methodology. Ms Wong also pointed to the different outcomes of the valuations over the period between February and June 2021, to which I have referred above, and addressed the position in respect of multiples and capitalisation rate benchmarks over the relevant period. Ms Wong emphasised that there was no explanation in AUFM’s evidence of any unique aspect of their valuation methodology, to support the claim that access to that methodology would provide a competitive advantage to NorthWest.

29 For the reasons set out above, I am not satisfied that AUFM has established a basis for a continued restriction on access to or publication of the Valuation Information generally. However, in his oral submissions, Mr Nixon for the first time identified the fact that later valuation documents contained in MFI-1 contain some prospective information as to the 2022 financial year, a matter which had not been specifically addressed in Ms Overington’s evidence or the information provided by Mr Pratt on which she relies. It seems to me that that information is sufficiently current to support a claim for confidentiality and, with hesitation, it seems to me that I should limit access to that limited information, notwithstanding that AUFM did not put its claim to limit access on that narrower basis.

30 Ms Overington’s evidence, in her first affidavit, is that the NDA Information relates to AUFM’s entry into non-disclosure agreements with eleven counterparties to negotiate potential investments by those counterparties in AUHPT in the period from January 2021 until June 2021. Ms Overington refers to confidentiality obligations contained in those non-disclosure agreements and indicates that AUFM asserts a claim of confidentiality over certain information within the scope of those agreements. Ms Overington described the information for which confidentiality was claimed as follows (Overington 31.1.22 [35]):

31 Ms Overington then identified, on information and belief from Mr Pratt, a risk that, if AUFM was required to disclose the NDA Information to NorthWest, potential counterparties may be reluctant to engage with AUFM and exchange confidential information for the purposes of commercial negotiations in the future. That proposition assumed, without establishing, the confidential character of the relevant information and was highly implausible. There is no reason to think that a potential counterparty would fail to recognise the obvious fact that the risk of engaging with AUFM was no greater than the risk of engaging with any other commercial entity, namely that AUFM or that other commercial entity might become subject to legal proceedings in which relevant documents would have be disclosed. As will emerge below, it appears that the eleven potential counterparties themselves were largely indifferent to that risk, and AUFM wisely did not seek to rely on it in oral submissions.

32 As I noted above, by her second affidavit dated 14 February 2022, Ms Overington referred to having given notice of the potential disclosure of the NDA Information to parties who had entered non-disclosure agreements with AUFM. Eight of those parties did not then take any active step to indicate any objection to access being provided to the relevant information; two of them retained solicitors to represent them in respect of the matter, and one of those two then did not indicate any objection to access to that information. Only one party to such an agreement, by its solicitors Jones Day, sent correspondence concerning that matter which was drawn by AUFM to the Court’s attention. By a letter dated 10 February 2022 from Jones Day, that party asserted the confidentiality of certain information relating to a potential transaction with AUFM and asserted a potential risk of prejudice by disclosure of that information and a second letter dated 12 February 2022 from Jones Day again asserted that matter. That party did not seek to be heard in this application or lead evidence which might make good the assertions made in that correspondence and, unsupported by evidence, that correspondence is no more than a bare assertion to which I give little weight.

33 In its written submissions, AUFM referred to the risks of prejudice to AUFM identified in Ms Overington’s affidavit in respect of the NDA Information and submitted that disclosure of that information to NorthWest would confer a competitive advantage upon it which it would not otherwise enjoy in respect of the attitude of potential counterparties to an investment in AUHPT. I have pointed to difficulties with Ms Overington’s evidence in that respect above. It is also not apparent what competitive advantage NorthWest would obtain from knowing the attitude of counterparties to a potential investment in AUHPT several months ago, which arose in the context of a potential transaction by NorthWest which has not proceeded and potential transactions by the counterparties which have also largely not proceeded, and in the commercial environment which existed in the first half of 2021. In any event, Mr Nixon did not press a submission on that basis in his oral submissions.

34 As I noted above, Mr Nixon put a somewhat narrower position than AUFM had put in its written submissions in respect of the NDA Information in oral submissions, and submitted that AUFM was under an obligation to maintain confidentiality of that information and have brought this application in order to do so, placing the focus upon the process of the application rather than its outcome in respect of that information. Mr Nixon fairly acknowledged that the counterparties to the relevant transactions had been notified by AUFM of the application and given an opportunity to advance any claim for confidentiality, and I have noted above that only one of them did so, in correspondence that was tendered and that it did not lead evidence to support its claim to confidentiality or appear in the application. Mr Nixon also fairly accepted that AUFM did not, itself, assert that the information comprised in this category had particular sensitivity, sensibly retreating from the position that had been put in AUFM’s affidavit evidence and its written submissions.

35 In its written submissions, NorthWest submits, and it was not contested that, the “NDA Information is relevant to matters in issue in the proceedings, in relation to a contest as to the purpose of AUFM’s entry into a subscription arrangement with the Fourth and Fifth Defendants and making a unit placement to the Second Defendant. NorthWest in turn refers to disclosure of the identity of the relevant counterparties in the financial press in the first half of 2021 and in Mr Pratt’s evidence in the substantive proceedings. NorthWest also submits, not surprisingly, that, while information regarding the status of AUFM’s engagement with potential counterparties may have been confidential, at the time that engagement was ongoing, it has no enduring commercial significance after the relevant transactions did not proceed. NorthWest also submits, and I accept, that the evidence led by AUFM is not sufficient to establish that the description and summaries of information exchanged between AUFM and potential counterparties have any ongoing confidentiality, and Mr Nixon did not place any weight on that matter in his oral submissions.

36 In oral submissions, Ms Wong noted the change in AUFM’s position concerning the NDA Information, so that the limitation on access to that information was now pursued, not to protect any suggested interest of AUFM in the confidentiality of the information, but to protect the interests of third parties or, more precisely, because AUFM considered it was obliged to seek to maintain the confidentiality of the information under the non-disclosure agreements, although it did not assert that it had any interest in the outcome of its doing so. Ms Wong emphasised that only one counterparty had sought to maintain any claim to the confidentiality of information concerning it and I have referred to the fact that it did not lead evidence or appear in order to advance that position. Ms Wong also pointed to affidavit evidence led by AUFM disclosing the names of potential counterparties in the substantive proceedings; to the disclosure of material aspects of the process of negotiations in the public domain; and to the fact that the transactions were not ongoing. I then indicated that I did not need to hear her further as to that aspect of the application, to the extent that she was rebutting a position no longer put by AUFM and now only advanced by a single counterparty which led no evidence to support it and did not choose to appear to advance it.

37 For the reasons set out above, I am also not satisfied that AUFM has established a basis for a continued restriction on access to or publication of the NDA Information.

AUFM’s claims as to “Pending Aged Care Partnership Information” and “Confidential Tenant Information”

38 As I noted above, a further category of information identified by AUFM as subject to a claim for confidentiality was described as the “Pending Aged Care Partnership Information”. That category related to an aged care operator with which AUFM was undertaking a commercial transaction. NorthWest did not contest the confidentiality of that information or that an order should be made restricting access to that information and I am satisfied that that order may properly be made. AUFM also claimed confidentiality over a category described as “Confidential Tenant Information” which relates to the tenants of certain properties owned by AUHPT and their dealings with AUFM. Again, NorthWest did not contest the confidentiality of that information or the fact that it was properly subject to restrictions on access and I am satisfied that the basis for a continued restriction on access to and publication of this information is established.

39 AUFM also sought a further order directed to a claim for legal professional privilege in respect of two pages of exhibits which are subject to a claim for legal professional privilege, which it contends were inadvertently disclosed. NorthWest did not oppose that relief, while reserving its ability to contest the underlying claim for legal professional privilege. I will make that order on that basis.

40 For these reasons, I will make orders continuing the restriction on access to the Pending Aged Care Partnership Information and the Confidential Tenant Information, as to which it was common ground that such orders should be made. It will be necessary for the parties to bring in short minutes of order to give effect to that result, so as to give an operational definition to those terms. I am not persuaded that orders should be made continuing that restriction on access to the Valuation Information and the NDA Information, which were the categories of information that remained in contest.

41 Counsel also made submissions as to costs. AUFM contended that costs should be costs in the cause and NorthWest contended that an order for costs should be made in its favour. It seems to me that, although NorthWest has succeeded in the two contested aspects of the application, it would not be appropriate to order that it recover costs of the application as a whole, where AUFM had to lead evidence and make submissions to establish that, and it was ultimately common ground, that the claims to limit access in respect of the Pending Aged Care Partnership Information and the Confidential Tenant Information were justified. The proper order for costs, in these circumstances, is that AUFM pay the costs of and incidental to the application in respect of the disputed categories concerning the Valuation Information and the NDA Information. Although I recognise that the assessment of those costs may involve a degree of complexity, the Court is not in a position to make an order in any other form, where the evidence does not permit any estimate of the extent of costs that are attributable to the several matters in issue. It will, of course, be open to the parties to seek to resolve that question between themselves.

42 I direct the parties to bring in agreed short minutes of order to give effect to this judgment within 7 days or, if there is no agreement between them, their respective draft orders and short submissions as to the differences between them.

22 February 2022 - Amendment to paras 26 and 35 to correct typographical errors.

Supreme Court of New South Wales

NorthWest Healthcare Australia RE Limited (as trustee of each of NWH Australia Hold Trust No 2 and NorthWest Australia Hospital Investment No 2 Bid Trust) v Australian Unity Funds Management Ltd & Ors [2022] NSWSC 122 (16 February 2022)