Federal Court of Australia Motorola Solutions, Inc. v Hytera Communications Corporation Ltd (Redaction of Judgment) [2023] FCA 545 File number: NSD 1283 of 2017 Judgment of: PERRAM J Date of judgment: 26 May 2023 Catchwords: PRACTICE AND PROCEDURE – redactions to be applied to reasons for judgment in Motorola Solutions, Inc. v Hytera Communications Corporation Ltd (Liability) [2022] FCA 1585 Legislation: Federal Court of Australia Act 1976 (Cth) s 37AF Personal Information Protection Law (China) arts 4, 6, 69 Cases cited: Motorola Solutions, Inc. v Hytera Communications Corporation Ltd (Liability) [2022] FCA 1585 Division: General Division Registry: New South Wales National Practice Area: Intellectual Property Sub-area: Patents and associated Statutes Number of paragraphs: 11 Date of last submissions: 2 May 2023 (Applicant) 16 May 2023 (Respondents) Date of hearing: Determined on the papers Counsel for the Applicant: Mr C Moore, Ms P L Arcus and Ms N L Gollan Solicitor for the Applicant: Herbert Smith Freehills Counsel for the Respondents: Mr C Dimitriadis, Mr J S Cooke, Ms J P S Ambikapathy Solicitor for the Respondents: Spruson & Ferguson Lawyers ORDERS NSD 1283 of 2017 BETWEEN: MOTOROLA SOLUTIONS, INC. Applicant AND: HYTERA COMMUNICATIONS CORPORATION LTD First Respondent HYTERA COMMUNICATIONS (AUSTRALIA) PTY LTD ACN 165 879 701 Second Respondent AND BETWEEN: HYTERA COMMUNICATIONS CORPORATION LTD First Cross-Claimant HYTERA COMMUNICATIONS (AUSTRALIA) PTY LTD ACN 165 879 701 Second Cross-Claimant AND: MOTOROLA SOLUTIONS, INC. Cross-Respondent order made by: PERRAM J DATE OF ORDER: 26 May 2023 THE COURT ORDERS THAT: 1. The parties provide a minute of order giving effect to these reasons within 7 days. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011. REASONS FOR JUDGMENT PERRAM J: 1 A highly redacted form of the Court's reasons for judgment were published on 23 December 2022 (Motorola Solutions, Inc. v Hytera Communications Corporation Ltd (Liability) [2022] FCA 1585) in order to allow the parties to identify which parts of the reasons needed to be redacted. This process has been protracted due to the complexity of the subject matter and the inability of either set of legal advisers to share certain parts of the unredacted reasons for judgment with their clients. The parties' final submissions were completed on 16 May 2023. Motorola sought extensive redaction of the reasons whilst Hytera's application was smaller. 2 I set out the relevant principles at [2124]-[2125] of the reasons for judgment. Motorola's redactions 3 Motorola seeks to redact portions of the reasons which disclose, directly or indirectly, its trade secrets. The paragraphs in respect of which redaction is sought are: [967], [1049], [1066], [1312], [1313]-[1320], [1341]-[1342], [1345]-[1346], [1349]-[1350], [1352]-[1359], [1360]-[1362], [1367], [1369]-[1370], [1380], [1388], [1393], [1395], [1402], [1404], [1419], [1424], [1442]-[1445], [1447]-[1449], [1455]-[1465], [1470], [1486], [1590], [1592]-[1597], [1602], [1604], [1613]-[1614], [1618]-[1619], [1624]-[1625], [1627], [1629], [1630], [1634]-[1635], [1646], [1653], [1654], [1662], [1668]-[1669], [1672]-[1675], [1685], [1697], [1700], [1706]-[1707], [1726], [1733], [1735], [1771], [1779], [1788], [1794], [1800], [1801], [1804]-[1817], [1824]-[1830], [1836]-[1844], [1851]-[1856], [1862]-[1864], [1866]-[1868], [1872]-[1873], [1892], [1898], [1940(f)], [1946], [1956]-[1960], [1974], [1977], the heading above [1978], [1979], the heading above [1980], the heading above [1981], and the heading above [1984]. 4 I have examined each of the proposed redactions. With the following exceptions, I accept that Motorola's redactions are necessary to preserve the confidentiality of the trade secrets in respect of which it sued. 5 I do not accept that the redactions for [1801] should be granted. In relation to the redactions sought for [1974] I do not accept that the first two redactions sought should be made, however, I do accept that the third, fourth and fifth redactions should be made. I do not accept that the first redaction sought for [1455] should be made although I do accept that the second and third should be made. I do not accept that the word 'data' should be redacted from [1486]. Hytera's redactions 6 Hytera sought redaction of part of [2046], being the amount of money that Mr Chia received pursuant to his termination agreement. This was claimed on the basis of Art 69 of the Personal Information Protection Law of the People's Republic of China ('PIPL'). An English language translation of relevant parts of Arts 4, 6 and 69 provides: Article 4 Personal information is all kinds of information, recorded by electronic or other means, related to identified or identifiable natural persons, not including information after anonymization handling. Personal information handling includes personal information collection, storage, use, processing, transmission, provision, disclosure, deletion, etc. Article 6 Personal information handling shall have a clear and reasonable purpose, and shall be directly related to the handling purpose, using a method with the smallest influence on individual rights and interests. Article 69 Where the handling of personal information infringes upon personal information, rights and interests and results in harm, and personal information handlers cannot prove they are not at fault, they shall bear compensation and otherwise take responsibility for the infringement. 7 I accept that the amount paid is personal information within the meaning of Art 4. However, Hytera's production of the agreement in this proceeding was under compulsory process and I do not accept that Hytera has any exposure under Art 69. It has complied with its obligations under the PIPL. It is nevertheless relevant that the information is personal to Mr Chia. Any redaction under s 37AF of the Federal Court of Australia Act 1976 (Cth) can only occur if it is necessary in the interests of justice. The reasons of the Court are its public explanation for its conclusions. Whilst the privacy concerns of Hytera for its former employee may be accepted, I do not think that they can justify the suppression of this part of the Court's reasons. 8 Hytera also sought to suppress the name of the person appearing at [2091] and [2092] on the same basis. The person named there is peripheral to the reasons for judgment and the reasons may, read one way, suggest misconduct on the person's part. I do not think that the due administration of justice requires that this name be made public. These paragraphs will be redacted accordingly. 9 Hytera also sought redaction of [2107] to prevent the disclosure of its source code for its scan function. I accept that this is a trade secret and that redaction is appropriate. Orders 10 The parties should now prepare a minute of order to give effect to these reasons identifying, for each paragraph where a redaction is granted, the words which are to be redacted. The suppression order should be for a period of 7 years from the date of the orders. If this needs to be extended, the parties may apply at that time. These orders, when made, will also be subject to the same suppression order. 11 Once the minute of order is provided to my chambers, I will make those orders. Arrangements with my chambers can then be made for the preparation of the redacted form of the judgment. The redacted form of the judgment will then be published under a separate medium neutral citation. At that time, I will place the unredacted reasons on the Court file subject to a suppression order for a period of 7 years from the date of the orders. I certify that the preceding eleven (11) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Perram. Associate: Dated: 26 May 2023