FEDERAL COURT OF AUSTRALIA Qantas Airways Limited v Rolls-Royce PLC (No 2)[2011] FCA 50 Citation: Qantas Airways Limited v Rolls-Royce PLC (No 2) Parties: QANTAS AIRWAYS LIMITED ABN 16 009 661 901 v ROLLS-ROYCE PLC File number: NSD 1681 of 2010 Judge: RARES J Date of judgment: 2 February 2011 Date of hearing: 2 February 2011 Place: Sydney Division: GENERAL DIVISION Category: No catchwords Number of paragraphs: 7 Counsel for the Applicant: AS Bell SC and M Izzo Solicitor for the Applicant: Minter Ellison Counsel for the Applicant on the Motion: JAC Potts Solicitor for the Applicant on the Motion: Clayton Utz IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY GENERAL DIVISION NSD 1681 of 2010 BETWEEN: QANTAS AIRWAYS LIMITED ABN 16 009 661 901 Applicant AND: ROLLS-ROYCE PLC Respondent JUDGE: RARES J DATE OF ORDER: 2 FEBRUARY 2011 WHERE MADE: SYDNEY THE COURT ORDERS THAT UNTIL FURTHER ORDER: 1. Pursuant to s 50 of the Federal Court of Australia Act 1976 parts of exhibit "BRN1" to the affidavit of Beverley Newbold sworn on 2 December 2010 be confidential in accordance with Order 1 made on 16 December 2010 and Order 1 made on 23 December 2010 and access thereto be restricted to the parties and their legal advisors. 2. Pursuant to s 50 of the Federal Court of Australia Act 1976 and further and in addition to the orders made on 16 December 2010 and 23 December 2010 the following additional parts of exhibit "BRN1" to the affidavit of Beverley Newbold sworn on 2 December 2010 be confidential, and access thereto be restricted to the parties and their legal advisors: (a) as regards tab 14 (A380 Purchase Agreement): (i) each date in Clause 4.1, with the exception of the references to the year 2006 where it appears; (b) as regards tab 16 (Letter Agreement 11); (i) Section 2.2 from the words in the third and fourth lines "delivery of the A380-800 Aircraft" to the end of the third paragraph. 3. In accordance with orders 1 and 2 above, on or before 4pm on 4 February 2011 Airbus provide (after consultation with the Applicant's legal representatives) a redacted copy of the documents behind tabs 13 to 16 inclusive in Exhibit "BRN1" to the affidavit of Beverley Newbold sworn on 2 December 2010 to be made available for inspection at the Registry. 4. The operation of orders 5 and 6 made on 23 December 2010 be varied to the extent that Airbus shall modify the redacted version of the affidavit of Gregory John Williams sworn on 22 December 2010 and filed in the Registry on 7 January 2011 by removing the redactions to paragraphs 28 and 56 and a copy of the affidavit so modified shall be made available for inspection at the Registry in accordance with order 6 below. 5. Pursuant to section 50 of the Federal Court of Australia Act 1976 the following parts of the affidavit of Gregory John Williams sworn on 31 January 2011 be confidential and access thereto be restricted to the parties and their legal advisors: (a) Paragraph 9 - third and fourth sentences; (b) Paragraph 10 - entire paragraph; (c) Paragraph 13 - second and third sentences; and (d) Paragraph 15 - second sentence the two words after the word "addressing" to before the word "and". 6. On or before 4pm on 4 February 2011 Airbus provide a redacted version of the Affidavits of Gregory John Williams sworn on 22 December 2010 and 31 January 2011 (the redacted versions of which are to be marked as Exhibits "AB1" and "AB2" to Airbus' Notice of Motion dated 22 December 2010) to be made available for inspection at the Registry. 7. The parties and Airbus have liberty to apply on 72 hours notice. THE COURT ORDERS THAT: 8. The proceedings be stood over to 9 February 2011 at 9:30 am. 9. Order 2 made on 23 December be extended up to and including 3 February 2011. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. The text of entered orders can be located using Federal Law Search on the Court's website. IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY GENERAL DIVISION NSD 1681 of 2010 BETWEEN: QANTAS AIRWAYS LIMITED ABN 16 009 661 901 Applicant AND: ROLLS-ROYCE PLC Respondent JUDGE: RARES J DATE: 2 FEBRUARY 2011 PLACE: SYDNEY REASONS FOR JUDGMENT (REVISED FROM THE TRANSCRIPT) 1 On 16 December 2010, I made orders concerning the application by Qantas Airways Limited to keep certain parts of the evidence upon which it had obtained ex parte relief against Rolls-Royce PLC confidential pursuant to s 50 of the Federal Court of Australia Act 1976 (Cth). 2 Four of those documents related to contractual arrangements that were not between Qantas and Rolls-Royce, but rather between Qantas and the aircraft supplier, Airbus SAS. I ordered that Qantas provide to Airbus a copy of the orders that I made on 16 December 2010 that would permit a considerable amount of material to be available for public inspection under O 46 r 6 of the Federal Court Rules 1976 (Cth). This was in order that Airbus might consider whether its interests in any confidential information in those agreements had been adequately protected. I also directed that the orders be stayed in respect of the Airbus documents until noon on 23 December 2010 and that they take effect at that time unless, before then, Airbus had filed a notice of motion seeking further, or varied, orders under s 50 of the Act. 3 In the event, on 22 December 2010 Airbus filed a notice of motion seeking that further material be redacted. This was supported by a detailed affidavit sworn by Gregory Williams, a partner of Clayton Utz, the solicitors acting for Airbus in the proceedings, in which he identified the foundation of the application. 4 On 22 and 23 December 2010 I reviewed the material in chambers on the basis of Mr Williams' affidavit and then had my associate notify the parties and Airbus that I was satisfied, on the material provided by Mr Williams in his affidavit, and having reviewed the provisions of the agreements, that a substantial number of those additional claims for confidentiality had been established. I indicated that, if any further claims were sought to be pressed, Airbus should do so when the matter returned to court today. 5 Airbus has now pressed only two of the additional confidentiality claims about which I had not been satisfied as at 23 December 2010. It relied on a further affidavit that Mr Williams swore on 31 January 2011. 6 Having had regard to that affidavit and the provisions of the two clauses and, in light of all the other evidence, I am satisfied that those two further extensions to the confidentiality orders in respect of the Airbus documents should be made. Accordingly, I will direct Airbus to prepare a final redacted version of the agreements that conforms with the orders I have made and am prepared to make to maintain confidentiality of those parts which it has established require such a course. 7 For these reasons, I am and was satisfied that the orders I made on 23 December 2010, as varied today, should be made. I certify that the preceding seven (7) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Rares. Associate: Dated: 4 February 2011