Federal Court of Australia Australian Competition and Consumer Commission v NSW Ports Operations Hold Co Pty Ltd (No 2) [2023] FCAFC 37 Appeal from: Australian Competition and Consumer Commission v NSW Ports Operations Hold Co Pty Ltd [2021] FCA 720 Australian Competition and Consumer Commission v NSW Ports Operations Hold Co Pty Ltd (No 2) [2021] FCA 1040 File number: NSD 751 of 2021 Judgment of: ALLSOP CJ, YATES AND BEACH JJ Date of judgment: 16 March 2023 Catchwords: COMPETITION – where provisions of port commitment deeds required the State to compensate port operators if certain container volumes divert to a possible container terminal at the Port of Newcastle – where claims of anti-competitive conduct contrary to law were made – where appeal dismissed but reasons not yet published to the public PRACTICE AND PROCEDURE – whether redactions to preserve confidentiality of information ought to be made under the Federal Court of Australia Act 1976 (Cth) – where suppression orders made by the primary judge – where there is an ongoing risk of prejudice to public and commercial interests COSTS – question of appropriate orders as to costs – where parties are agreed Legislation: Federal Court of Australia Act 1976 (Cth) s 37AG(1)(a) Port of Newcastle (Extinguishment of Liability) Act 2022 (NSW) Cases cited: Australian Competition and Consumer Commission v NSW Ports Operations Hold Co Pty Ltd [2023] FCAFC 16 Division: General Division Registry: New South Wales National Practice Area: Commercial and Corporations Sub-area: Economic Regulator, Competition and Access Number of paragraphs: 21 Date of hearing: 17–18, 21–22 February 2022 Counsel for the Appellant / First Cross-Respondent Mr M Borsky KC, Mr R Yezerski, Mr A Barraclough and Ms J Watson (written submissions also by Mr J Sheahan KC) Solicitor for the Appellant / First Cross-Respondent Australian Government Solicitor Counsel for the First, Second and Third Respondents / Cross-Appellants Mr N Hutley SC, Dr R Higgins SC, Mr B Lim and Mr T Rogan Solicitor for the First, Second and Third Respondents / Cross-Appellants Gilbert + Tobin Counsel for the Fourth Respondent / Fifth Cross-Respondent Mr S Free SC and Mr I Ahmed Solicitor for the Fourth Respondent / Fifth Cross-Respondent MinterEllison Counsel for the Fifth to Seventh Respondents / Second to Fourth Cross-Respondents Mr G Rich SC and Mr B Hancock Solicitor for the Fifth to Seventh Respondents / Second to Fourth Cross-Respondents Allens ORDERS NSD 751 of 2021 BETWEEN: AUSTRALIAN COMPETITION AND CONSUMER COMMISSION Applicant AND: NSW PORTS OPERATIONS HOLD CO PTY LTD 163 262 351 First Respondent PORT BOTANY OPERATIONS PTY LTD ACN 161 204 342 Second Respondent PORT KEMBLA OPERATIONS PTY LTD ACN 161 246 582 (and others named in the Schedule) Third Respondent AND BETWEEN: NSW PORTS OPERATIONS HOLD CO PTY LTD ACN 163 262 351 (and others named in the Schedule) First Cross-Appellant AND: AUSTRALIAN COMPETITION AND CONSUMER COMMISSION (and others named in the Schedule) First Cross-Respondent order made by: ALLSOP CJ, YATES AND BEACH JJ DATE OF ORDER: 16 March 2023 THE COURT ORDERS THAT: 1. Subject to order 5 below, the Court notes that the parties consent to any variation (if it were necessary) to the orders of Justice Jagot made on 26 March 2020 for the purpose of the publication of the reasons of the Full Court dated 23 February 2023 as amended by these orders, in particular by order 5 below. 2. The Court otherwise notes the continuation of the orders of Justice Jagot of 26 March 2020 according to their terms. Confidentiality 3. Order 3 of the orders of the Full Court made on 23 February 2023 be vacated. 4. The Full Court's reasons for judgment in this matter dated 23 February 2023 in the form published to the parties, their legal representatives and Court staff on 23 February 2023 be withdrawn as the final reasons of the Court and be treated as confidential and as subject to the orders of Justice Jagot made on 26 March 2020 unless redacted to excise the material in paragraphs [35], [38], [56], [63], [161], [244] and [411] dealt with in order 5 below. 5. The Full Court's reasons for judgment in this matter in the form published to the parties, their legal representatives and Court staff on 23 February 2023 be amended in order to constitute the final reasons of the Court for general publication in the following respects: (a) The Value Impact Information (VII) (as defined by order 1 of the orders of Justice Jagot dated 26 March 2020) referred to in paragraphs [35], [56], [63], [161] and [411] be removed and substituted with the following text: "a significant, material amount of money the sum of which is confidential and need not be specified for the purposes of this judgment". (b) The percentages referred to in paragraph [38] be removed and substituted with the following text: "a significant, material percentage, which is confidential and need not be specified for the purposes of this judgment". (c) The opinion of Mr van Duijn with respect to terminal design quoted in paragraph [244] be removed and substituted with the following text: "[a particular design feature over which a confidentiality claim is made to preserve PON's commercial interests and which is unnecessary to specify for the purposes of this judgment]". 6. The State of New South Wales be granted liberty to apply to the Court to extend the operation of the orders of Justice Jagot dated 26 March 2020 insofar as they relate to VII. Costs 7. The appellant (ACCC) pay: (a) The first to third respondents' and cross-appellants' (NSW Ports) party-party costs of, and incidental to, proceeding NSD 751 of 2021, including their costs of, and incidental to, the cross-appeal; and (b) The fourth respondent's and fifth cross respondent's (State of New South Wales) party-party costs of, and incidental to, proceeding NSD 751 of 2021, including its costs of, and incidental to, the cross-appeal, but excluding costs referred to in order 8 below. 8. The intervener pay, except for any costs (including in relation to the preparation of written submissions) otherwise incurred by the first to fourth respondents in proceeding NSD 751 of 2021 and recovered pursuant to order 7: (a) NSW Ports' party-party costs of, and incidental to, the intervener's participation in proceeding NSD 751 of 2021; and (b) The State of New South Wales' party-party costs of, and incidental to, the intervener's participation in proceeding NSD 751 of 2021. 9. The costs referred to in orders 7 and 8 be awarded in lump sums pursuant to r 40.02(b) of the Federal Court Rules 2011 (Cth). 10. The parties have liberty to restore on 14 days' notice to the chambers of Justice Yates to seek directions for the determination of the amounts payable in accordance with orders 7, 8 and 9 in the absence of agreement as to those amounts. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011. REASONS FOR JUDGMENT THE COURT: 1 On 23 February 2023, the Full Court published reasons for decision concerning the substantive issues in dispute in these proceedings: Australian Competition and Consumer Commission v NSW Ports Operations Hold Co Pty Ltd [2023] FCAFC 16 (Full Court Liability Judgment). Relevantly, the following orders were made on that date: 3. Until further order, the Full Court's reasons for judgment in this matter not be disclosed to or published by any person save to the parties, their legal representatives, and Court staff. 4. Within 7 days, the parties provide the Full Court with a list identifying any paragraphs or parts thereof of the Full Court's reasons for judgment which are said to contain confidential information and that ought not be published in an unredacted form, including the reasons why a confidentiality claim is made and whether any proposed redactions are agreed or not agreed; noting that for the convenience of the parties only and without indicating any view as to confidentiality, the Full Court has highlighted in yellow parts of the judgment which were redacted by the primary judge for reasons of asserted confidentiality. 2 In compliance with order 4, the parties' legal representatives provided the Full Court with a proposed list of redactions on 2 March 2023. 3 For the reasons that follow, we are of the view that the redactions sought by the parties should be applied to the judgment in advance of its broader publication to the public. However, we consider it to be important that the reasons of the Court are clear and not made less comprehensible than they should be by such redactions. Therefore the Court proposes to withdraw certain parts of the published judgment and replace relevant parts in order to maintain the necessary confidentiality, but also make the judgment comprehensible for general publication. 4 We note that on 26 March 2020, the primary judge made orders in respect of the confidentiality of these proceedings. Those orders replaced previous orders that had been made on 30 May 2019 following an interlocutory hearing and the filing and reading of affidavit evidence and submissions. Subject to the exceptions described below concerning claims of confidentiality that remain pressed, the parties do not object (and so, it may be said, impliedly consent) to the publication of the Full Court's reasons in an unredacted form notwithstanding the orders previously made by the primary judge. Redaction of "Value Impact Information" 5 The State of New South Wales applied for the redaction of certain monetary figures and percentages which constitute "Value Impact Information" (VII) in [35], [38], [56], [63], [161], and [411]. 6 Pursuant to orders of Justice Jagot dated 26 March 2020 (superseding previous orders made by her Honour on 30 May 2019), VII means "the dollar figures referred to in the particulars to paragraph 25 (sub-paragraph (a)(ii)) and 26 (sub-paragraph (b)(ii)) of the Statement of Claim." Those dollar figures and percentages are derived from confidential advice given to the State by its external financial advisers and relate to the likely impact on the sale price of Port Kembla and Port Botany to factor in the risk of change in Government policy with respect to port sequencing in New South Wales. 7 Justice Jagot made the following orders in respect of VII on 26 March 2020: 17. Pursuant to section 37AF (on the ground specified in section 37AG(1)(a) that the order is necessary to prevent prejudice to the proper administration of justice) of the Federal Court of Australia Act 1976 (Cth), the Value Impact Information be treated as if it were marked as 'Value Impact Information' Confidential Information in accordance with these Orders and access be restricted to those persons listed in Order 5.c of these Orders [being Support Staff of representatives of each of NSW Ports, the PON and the State involved in the conduct of the Proceedings]. ... 19. Any persons who received the Value Impact Information in accordance with the 30 May Orders or receives 'Value Impact Information' Confidential Information in accordance with these Orders must not, except for the State, its external solicitors and barristers and their Support Staff, unless the Court otherwise orders: a. disclose the Value Impact Information or the Value Impact Information' Confidential Information to any person except the persons listed in Order 5.c of these Orders; or b. any of the parties to the Port Commitment Deeds on any further negotiation that is not related to the Proceedings, or any resolution or settlement of the Proceedings to vary the operation of a Port Commitment Deed or a related provision of the relevant port lease. 8 The State claims that the confidentiality of VII ought be preserved because were it to be disclosed, it would prejudice the State, and through it, the people of New South Wales, in circumstances where, pursuant to the Port of Newcastle (Extinguishment of Liability) Act 2022 (NSW): (a) a process has been initiated (commencing on 2 March 2023) by which the New South Wales Independent Pricing and Regulatory Tribunal has been appointed by the Treasurer to determine within 6 months (which time period may be extended to 12 months) the amount by which the financial value of the right to operate and lease the assets at the Port of Newcastle was reduced because of the inclusion of the reimbursement provision in the Newcastle Port Commitment Deed; and (b) from the date on which PON pays the State the amount so determined, any liability to the State under the reimbursement provision is extinguished. 9 These circumstances may result in the Botany and Kembla Port Commitment Deeds, and specifically the compensation provisions, being valued or re-negotiated. The VII will likely be used as a guide to the price for any valuation or renegotiation of the compensation provisions or payment of compensation to NSW Ports. 10 Consequently, the disclosure of VII would prejudice the State's position in the context of those negotiations and renegotiations and would therefore negatively impact the public interest in the prudent management of public funds. 11 The State claimed that a period of 5 years, with liberty to apply to the Court to extend that period, would be a reasonable period of time within which to protect the State's interest and the public interest in preserving the confidentiality of the VII. That time period is derived from the orders of Justice Jagot dated 26 March 2020. 12 The redaction of VII was not objected to by the Australian Competition and Consumer Commission, the NSW Ports parties, the Port of Newcastle parties, or the intervener. No party sought to revisit the primary judge's orders of 26 March 2020. 13 We are of the view that the potential prejudice to the State's position and the interests of the people of New South Wales are such that the suppression orders made by Justice Jagot on 26 March 2020 should continue to apply, with liberty to apply for an extension. Redaction of a particular expert opinion 14 The Port of Newcastle parties applied for redaction of part of an opinion expressed by Mr van Duijn, a Maritime Logistics Expert and Industry Researcher at the Centre for Supply Chain and Logistics at Deakin University, relating to the 'staging' of PON's proposed container terminal development as set out in the Preliminary Business Case and which refers with specificity to proposed design features of that development, at [244]. 15 The Port of Newcastle parties claim that the Preliminary Business Case remains confidential pursuant to orders made by Justice Jagot on 30 May 2019, replaced by the orders of 26 March 2020, that the Preliminary Business Case is of "present strategic relevance to PON's planned container development" and that the disclosure of potential design features of that development to potential competitors risks PON suffering prejudice to its commercial interests. On that basis, redaction is sought pursuant to s 37AG(1)(a) of the Federal Court of Australia Act 1976 (Cth). 16 The proposed redaction was not objected to by the Australian Competition and Consumer Commission, the NSW Ports parties, the State, or the intervener. 17 The opinion expressed by Mr van Duijn over which redaction is sought bears no direct relevance to the Full Court Liability Judgment and its redaction would not compromise the cogency of the reasons. Taking into account all of the relevant circumstances, including in particular the claimed potential commercial prejudice that would flow from publication, we are of the view that the opinion of Mr van Duijn quoted in the Full Court Liability Judgment should be redacted. Proposed course with respect to the publication of the Full Court Liability Judgment 18 We propose to vacate order 3 of the orders of the Full Court made on 23 February 2023 such that the Full Court Liability Judgment may be published to the general public. We propose, however, that in advance of publication: (a) the VII referred to in paragraphs [35], [56], [63], [161] and [411] of the Full Court Liability Judgment be removed and substituted with the following text: "a significant, material amount of money the sum of which is confidential and need not be specified for the purposes of this judgment"; and (b) the percentages referred to in paragraph [38] of the Full Court Liability Judgment from which VII could be derived be removed and substituted with the following text: "a significant, material percentage, which is confidential and need not be specified for the purposes of this judgment"; and (c) the relevant opinion expressed by Mr van Duijn in paragraph [244] of the Full Court Liability Judgment be removed and substituted with the following text: "[a particular design feature over which a confidentiality claim is made to preserve PON's commercial interests and which is unnecessary to specify for the purposes of this judgment]". 19 In the orders we would also, for clarity and the sake of good order, note the operation of the orders made by Justice Jagot on 26 March 2020, with liberty for the State to apply to a Judge of the Court (whether Yates J or Beach J, or in their absence another Judge of the Court) for a further extension with respect to VII. 20 The Court will prepare a revised version of the reasons with the redactions and changes referred to in [18] above for general publication to the public, and the unredacted judgment published on 23 February 2023 and subject to order 3 made on the same date will be withdrawn and be the subject of the orders of Jagot J and of this Court. Costs 21 On 23 February 2023, the Court made orders that the parties provide the Full Court with proposed short minutes of order concerning costs. Proposed short minutes were received by chambers on 9 March 2023 in accordance with that order. The parties were agreed on the orders that ought be made with respect to costs. We agree that the orders sought by the parties are appropriate and we make those orders in the form agreed, save that the parties are to approach the chambers of Justice Yates should directions be required as to the determination of the amounts payable in accordance with the orders. I certify that the preceding twenty-one (21) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Chief Justice Allsop and Justices Yates and Beach. Associate: Dated: 16 March 2023 SCHEDULE OF PARTIES NSD 751 of 2021 Respondents Fourth Respondent: STATE OF NEW SOUTH WALES Fifth Respondent: PORT OF NEWCASTLE OPERATIONS PTY LIMITED ACN 165 332 990 Sixth Respondent: PORT OF NEWCASTLE INVESTMENTS (PROPERTY) PTY LIMITED ACN 169 286 024 Seventh Respondent: PORT OF NEWCASTLE INVESTMENTS PTY LIMITED ACN 169 132 441 Cross-Appellants Second Cross-Appellant: PORT BOTANY OPERATIONS PTY LTD ACN 161 204 342 Third Cross-Appellant: PORT KEMBLA OPERATIONS PTY LTD ACN 161 246 582 Cross-Respondents Second Cross-Respondent PORT OF NEWCASTLE OPERATIONS PTY LIMITED ACN 165 332 990 Third Cross-Respondent PORT OF NEWCASTLE INVESTMENTS (PROPERTY) PTY LIMITED ACN 169 286 024 Fourth Cross-Respondent PORT OF NEWCASTLE INVESTMENTS PTY LIMITED ACN 169 132 441 Fifth Cross-Respondent STATE OF NEW SOUTH WALES