Supreme Court New South Wales Medium Neutral Citation: Lenark Pty Limited v TheChairmen1 Pty Limited & Ors (No 2) [2012] NSWSC 415 Hearing dates: 18 April 2012 Decision date: 01 May 2012 Jurisdiction: Equity Division - Corporations List Before: Black J Decision: Parties to bring in draft orders to give effect to judgment. Catchwords: PRACTICE AND PROCEDURE - Discovery - Confidentiality - Whether parties are trade rivals - Inspection of documents by trade rivals - Whether inspection should be restricted. Legislation Cited: - Corporations Act 2001 (Cth) ss 180-182, 232 Cases Cited: - Betfair Pty Ltd v Racing New South Wales (No 5) [2009] FCA 1011 - Cadbury Pty Ltd v Amcor Ltd (No 2) [2009] FCA 663 - Drivetime Radio Australia Pty Ltd v Pivotal Creative Solutions Pty Ltd [2010] NSWSC 763 - ICAP Australia v Forrest Moebes [2010] NSWSC 738 - Idoport Pty Ltd v National Australia Bank Ltd [2001] NSWSC 1024 - Lenark Pty Ltd v TheChairmen1 Pty Ltd & Ors [2012] NSWSC 124 - Mobil Oil Australia Ltd v Guina Developments Pty Ltd [1996] 2 VR 34 - NAK Australia Pty Ltd v Starkey Consulting Pty Ltd [2008] NSWSC 1136 - Portal Software International Pty Ltd v Bodsworth [2005] NSWSC 1115 - Reebok International Ltd v Sydney Organising Committee for the Olympic Games [2000] NSWSC 295 - Science Research Council v Nasse [1980] AC 1028 - Sydney Organising Committee for the Olympic Games v Reebok International Ltd [2000] NSWCA 185 Category: Interlocutory applications Parties: Lenark Pty Limited (Plaintiff) The Chairmen1 Pty Limited & Ors (Defendants) Representation: Counsel: D.J. Fagan SC/N.M. Bender (Plaintiff) M. Henry (Defendants) S.J. Philips (Springsure Mining Pty Ltd) J.C. Hewitt (Guildford Coal Ltd) Solicitors: Minter Ellison (Plaintiff) Freehills (Defendants) Horton Rhodes (Springsure Mining Pty Ltd) Middletons (Guildford Coal Ltd) File Number(s): 10/318240 Judgment Background 1By its Statement of Claim filed in these proceedings, the Plaintiff ("Lenark") seeks, inter alia, a declaration that a capital raising by the First Defendant ("The Chairmen1") by way of a rights issue and placement and its purchase of 85% of the shares in Springsure Mining Pty Limited ("Springsure") was contrary to the interests of members of The Chairmen1 as a whole and/or oppressive to, unfairly prejudicial to or unfairly discriminatory against Lenark or other members of The Chairmen1 within the meaning of s 232 of the Corporations Act 2001 (Cth) and seeks declarations that certain persons contravened their statutory duties under ss 180-182 of the Corporations Act and their corresponding general law duties in respect of the transaction. 2I delivered judgment on 22 February 2012 ([2012] NSWSC 124) concerning an application by Lenark and certain other persons that confidentiality undertakings given by Counsel, solicitors and other persons acting for Lenark be released, which contemplated that The Chairmen1 could bring an application to seek confidentiality orders or restrictions on access in respect of specific documents. By Interlocutory Process filed on 22 March 2012, The Chairmen1 applied for an order restricting access to 120 discovered documents to specified persons on the basis of a confidentiality undertaking. When the matter was again listed before me on 26 March 2012, three further parties appeared by their legal representatives and indicated that they sought to be heard in respect of that application. 3By 30 March 2012, discussions between the parties further reduced the range of documents in dispute to 91 documents. By the time the matter was listed before me for a contested argument on 18 April 2012, the parties had succeeded in reducing the number of documents in dispute to 19 documents, without admission by Lenark that the claims to restrictions on access over other documents were justified. The efforts which the parties devoted to narrowing the issues in dispute were appropriate and will have resulted in savings of Court time and costs for all parties. Whether Lenark is a trade rival of The Chairmen1, Guildford Coal and Springsure 4The Chairmen1's application for confidentiality was supported by affidavits of its solicitor, Mr Paul Wenk, dated 21 March 2012, 26 March 2012 and 10 April 2012. Mr Wenk's evidence was that The Chairmen1 considered that disclosure of confidential documents to Mr Chisholm and his advisers, other than to specified persons, would put The Chairmen1 and associated entities at a competitive disadvantage relative to Mr Chisholm and associated interests, and that the usual implied undertaking would not sufficiently protect The Chairmen1 and associated entities in respect of those documents. The Chairmen1's claim for confidentiality primarily relates to documents concerning the affairs of Guildford Coal Ltd ("Guildford Coal") which was separately represented in the proceedings and relied on an affidavit of its solicitor, Mr Mark Easton sworn 11 April 2012 to support the claims for confidentiality. Springsure also intervened in the proceedings to assert confidentiality over a small number of documents discovered by The Chairmen1. 5Mr Wenk's evidence is that The Chairmen1 was incorporated in the first half of 2009 for the purpose of implementing transactions and making investments in, inter alia, the mining services and mining and resources sector. It appears that that contention is disputed by Lenark and will be a matter in issue in the substantive proceedings. 6By May 2010, The Chairmen1 was engaged in a number of coal and mineral projects, including the Hughenden Project (Galillee/Eramanga Basins), the Sierra and Comet Projects (Bowen Basin), Sunrise (Surat/Bowen Basin), Monto Project (Nagoorin Graben) and Maryborough Project (Maryborough Basin). Each of these projects was transferred to Guildford Coal, then a subsidiary of The Chairmen1, in late May 2010 and Guildford Coal listed on Australian Securities Exchange ("ASX") in July 2010. The Chairmen1 then held approximately 56% of Guildford Coal's issued share capital and now holds approximately 50% of its issued share capital. 7The Chairmen1 and Guildford Coal also entered into a Management Agreement by which The Chairmen1 provides services to Guildford Coal and its subsidiaries, including prosecuting applications in relation to the Projects (as defined) and in respect of adjacent areas and advising Guildford Coal of suitable tenements which may become available for acquisition and management of the Projects and of the Group's assets and capital. The Chairmen 1 owes a contractual duty of confidentiality to Guildford Coal under the Management Agreement. The fact that material was provided on a confidential basis by Guildford Coal to The Chairmen1 does not necessarily warrant further protection beyond that which is supplied by the implied undertaking: Betfair Pty Ltd v Racing New South Wales (No 5) [2009] FCA 1011 at [27]. 8On 1 October 2010, The Chairmen1 acquired 85% of the issued share capital of Springsure which is the holder of an exploration permit which permits it to explore for coal within an area in the southern Bowen Basin in Central Queensland. Mr Fagan, who appears for Lenark, submitted that this transaction was central to the claims brought by Lenark in the proceedings. I will return to that matter below. 9Mr Chisholm, who is the principal of Lenark, was a director of The Chairmen1 from June 2009 until August 2010. Mr Chisholm was also a director of Springsure from July 2009 until 18 May 2010. The Chairmen1, Guildford Coal and Springsure contend that Lenark and Mr Chisholm should be treated as trade rivals of those entities in a manner which warrants the imposition of restrictions on access to the relevant documents. The Chairmen1 contends that Mr Chisholm began to compete with The Chairmen1 at a time when he was a director of The Chairmen1, by incorporating a company called Industrial Partners Holdings Pty Ltd ("Industrial Partners") which sought to complete with The Chairmen1 in respect of the acquisition of coal tenements and mining and resource assets. The Chairmen1 contends that Industrial Partners' activity in competition with The Chairmen1 includes providing services to third parties in respect of the acquisition, capital raising and subsequent listing of coal assets on ASX. In particular, it appears that Industrial Partners has offered its services to another entity with interests adjacent to, or at least close to, those of Guildford Coal in the Bowen Basin. 10Mr Chisholm also has an interest in an entity known as Ebony Coal Pty Limited ("Ebony Coal") which has interests in exploration tenements in Queensland, one of which is proximate to Guildford Coal's Hughenden and White Mountain Coal tenements, and which is seeking to raise a substantial amount of additional capital to advance its prospective portfolio. Lenark accepts that there is current trade rivalry, at least in the general sense that Mr Chisholm is engaged in capital raisings for potential coal exploration and development projects, although it submits that the question of any competition with The Chairmen1 or Guildford Coal is a matter to be assessed against the evidence of their activities. Applicable legal principles 11The principles applicable for orders in respect of confidentiality or restrictions on access, in proceedings involving trade rivals and potential trade rivals, were not substantially disputed by the parties and I referred to those principles in my earlier judgment. Once trade rivalry is established, then the Court must be conscious of the risk that, once the principals of the trade rival inspect confidential information, then that information cannot be forgotten and it may be impossible for the trade rival not thereafter to use that information except for the purposes of the proceedings: Mobil Oil Australia Ltd v Guina Developments Pty Ltd [1996] 2 VR 34 at 38. It will often be appropriate where confidentiality is claimed for the Court to inspect the relevant documents since "[i]t is only upon consideration of exactly what is in the documents that a decision can be made about what orders should be made for inspection by or on behalf" of the other party, and arrangements as to confidentiality should "strike a fair balance between the competing interests of the party seeking inspection and the party claiming confidentiality" and the nature and content of the disputed documents will be an important relevant matter: Mobil Oil v Guina at 39-40. 12These principles have been adopted in subsequent decisions including Reebok International Ltd v Sydney Organising Committee for the Olympic Games [2000] NSWSC 295, affirmed Sydney Organising Committee for the Olympic Games v Reebok International Ltd [2000] NSWCA 185. The applicable principles were summarised and applied in Cadbury Pty Ltd v Amcor Ltd (No 2) [2009] FCA 663 at [6] and [7], where Gordon J pointed to the need, in litigation between trade rivals, to strike a fair balance between the needs of the party seeking discovery and the legitimate concern of the trade rival to retain the secrecy of its commercially sensitive information; pointed to the importance of inspection of the nature and contents of the documents in issue to resolve such a dispute; and noted that it was for the party seeking an order limiting inspection of discoverable documents to establish the character of each such document that warranted protection additional to that granted by the implied undertaking. 13In Portal Software International Pty Ltd v Bodsworth [2005] NSWSC 1115 at [41]-[42] and Drivetime Radio Australia Pty Ltd v Pivotal Creative Solutions Pty Ltd [2010] NSWSC 763, Brereton J emphasised that the Courts are reluctant to exclude the parties to the litigation from knowledge of relevant material by limiting access to their advisers, although the Court may sometimes need to take that approach. In NAK Australia Pty Ltd v Starkey Consulting Pty Ltd [2008] NSWSC 1136 at [8]-[9], Brereton J referred to his decision in Portal Software International Pty Ltd v Bodsworth above and observed that: "it has long been the practice that restrictions be imposed on the access of a party to documents produced on discovery, or on subpoena, particularly in cases concerning patents and trade secrets. Although that is less so when documents are sought from parties to litigation than from third parties, and particularly where it is a plaintiff who asserts confidentiality against a defendant (because, the plaintiff having invoked the jurisdiction of the Court, a still stronger case is required to deny a defendant access to relevant confidential documents), the position of a defendant brought to a court by a plaintiff is in an intermediate position. Protective limitations are sometimes introduced at the time of the production or inspection - such as orders for inspection by an independent solicitor or expert, or limiting access (for example) to the plaintiff's expert but not the plaintiff, or inspection by the plaintiff's solicitor but not by the plaintiff. In more recent times it has become rarer that a person is excluded from knowledge, because courts take the view that decisions such as whether to continue or abandon litigation should be made by the party personally on advice, rather than by the advisors. Imposing restrictions on the ability of lawyers to speak to their clients and disclose to their clients information produced to them is undesirable. It places those lawyers in a position of difficulty vis-a-vis their client and even in the conduct of the litigation. But, despite these difficulties, courts do nonetheless still make such orders as the best compromise that can be achieved between preserving the interests of the defendant's confidentiality, and allowing the plaintiff reasonably to conduct its case." 14In accepting a regime that limits access to external solicitors and counsel, the Court must be conscious that, as was noted in ICAP Australia v Forrest Moebes [2010] NSWSC 738 at [11]: "Those solicitors and counsel must act on the instructions of someone; and normally the person or persons giving those instructions should be entitled to see all the documents available to their advisers so that they can understand the basis of any advice given to them". 15A party who seeks protection additional to that given by the implied undertaking generally bears the onus of establishing that each document in relation to which additional protection is sought warrants that protection: Idoport Pty Ltd v National Australia Bank Ltd [2001] NSWSC 1024; Betfair Pty Ltd v Racing New South Wales (No 5); ICAP Australia v Forrest Moebes above. Although documents are not protected from discovery by reason of confidentiality alone, the obligation to give discovery should not place upon the litigant (or third parties) any more oppressive burden than is required to permit justice to be done and that Courts will more closely scrutinise the discovery sought to ensure that it truly is material and not oppressive where giving discovery would involve the loss of trade secrets or confidences: Science Research Council v Nasse [1980] AC 1028 at 1065; NAK Australia Pty Ltd v Starkey Consulting Pty Ltd above at [4], [10]. Review of particular documents 16I was provided with a bundle of the relevant documents which I have marked "Confidential MFI 1". References in this judgment to documents by tab number are to that bundle. I have considered it appropriate, in accordance with the authorities, to review the relevant documents. In doing so, I have had regard to the fact that Guildford Coal is a third party to the proceedings (notwithstanding the significant shareholding interest which The Chairmen1 holds in it) and that, as it contends, it is the beneficiary of confidentiality obligations owed by The Chairmen1 to it under the Management Agreement between those entities. Tab 4 17The document behind tab 4 is an appraisal of exploration permits owned by several entities associated with a third party. Mr Easton's evidence, on information and belief upon instructions given to him by the managing director of Guildford Coal, Mr Michael Avery, was that The Chairmen1 assessed and investigated the exploration permits as a potential investment. Mr Avery contends that the report discloses an appraisal of the value of the assets; intelligence concerning the geology, development potential and access to infrastructure of those assets; the value ratings given to those assets; and future steps to be taken to further assess the assets, and that disclosure of that information to Guildford's trade rivals would inform them as to the prospective value of the assets and assist them to decide whether or not to pursue application of the assets, which may cause competitors to try to acquire the assets in competition with Guildford Coal or increase the price which would need to be paid by Guildford Coal. 18This document is dated September 2008 and the information provided by Mr Avery to Mr Easton does not address the currency of the information contained in it or the extent to which that information was derived from public records or is otherwise in the public domain. The appraisal of the value of the assets and the recommendations as to future steps to assess the assets in this document are in general terms. There is no evidence that such discussions with the owner of the permits have taken place in the three years since the document was prepared and no evidence that Guildford Coal has any current interest in acquiring the permits or their owner has any current interest in selling them so as to give rise to difficulties in respect of a potential acquisition of them to which Mr Avery refers. While it was put from the bar table that Mr Avery had checked to confirm that, although some information in the maps contained in this document was in the public domain, other information was not, there was no evidence to that effect before me. I consider that this document is not of a sensitivity that requires protection by more than the implied undertaking. Tabs 8 and 11 19The document which appears behind both of these tabs is described by Mr Easton, on information and belief from Mr Avery, as a confidential report prepared by an expert consultant in relation to the Guildford Coal tenements which are adjacent to projects owned by Ebony Coal. Mr Avery's evidence is that the report is based on detailed research of those tenements and contains advice in relation to how the coal resource can be developed and, if it were made available to Mr Chisholm, Ebony Coal or other trade rivals of Guildford Coal, it would allow them to understand Guildford Coal's strategy for the Hughenden Project. 20The Chairmen1 and Guildford Coal have since narrowed the claim for confidentiality in respect of this document to specific maps of bore holes, a stratigraphic section, information concerning coal intersections within the tenements and an indicative exploration program within the document. However, Mr Easton's evidence on information and belief from Mr Avery does not specifically address the confidentiality of that information, as distinct from the confidentiality of the report generally which is no longer pressed as requiring restrictions on access over the whole document. There is no evidence of the extent to which the information as to bore holes, stratigraphic sections or coal intersections is otherwise within the public domain. The information provided by Mr Avery also does not address the extent to which the information in the indicative exploration program is now dated or in the public domain, where that report is over two years old and Guildford Coal is a listed entity which is subject to continuous disclosure obligations. 21The absence of such evidence is of particular significance where an expert's report concerning the tenements which Guildford Coal acquired from The Chairmen1, including a number of areas in the Hughenden region, and maps dealing with the geology of the region are contained in the prospectus issued by Guildford Coal in May 2010. Guildford Coal has also published information concerning the results of drilling in quarterly reports since the date of these documents. In the absence of identification by The Chairmen1 or Guildford Coal, with any specificity, of information contained in these documents which is not in the public domain or specific evidence of the confidentiality of that information, it has not been established that the implied undertaking would not sufficiently protect the information which is sought to be redacted in this document. Tabs 15, 16, 18, 62, 69 and 70 22The documents behind these tabs relate to communications with particular investors. Mr Easton's evidence, on information and belief from Mr Avery, addresses this material in a generalised way, contending that these documents "disclose the identity of persons or entities who are potential sources of funding or joint venture partners in projects in which Guildford [Coal] is currently involved, or has investigated and may in the future be involved". No attempt is made to address the currency of the relevant proposals, which are each between 2 and 3 years old, or the extent to which Guildford Coal is still in negotiation with the particular investors. In particular, the sale of the shares in the subsidiary companies which held the Hughenden tenements from The Chairmen1 to Guildford Coal has taken place since the exchange of correspondence with the relevant investors. 23The document behind tab 70 contains information provided in response to questions asked by the potential investor. However, the information provided in those answers is in relatively general form, is now at least 18 months old, again overlaps with information which is already in the public domain and again no attempt has been made to identify the particular information which is not in the public domain or to demonstrate the confidentiality of that particular information. 24Nonetheless, there is evidence that there is competition for investors and funding between Guildford Coal and its trade rivals and it appears that Mr Chisholm has an association with at least Ebony Coal which is a competitor for investors and funding with Guildford Coal. These documents are also not of particular technicality and I can see no difficulty in Lenark's legal advisers understanding them or assessing their significance to the matters in issue in the proceedings without reference to Mr Chisholm. On balance and with some hesitation, I consider that The Chairmen1's and Guildford Coal's interest in maintaining the confidentiality of the relevant information is sufficient to warrant limiting access to the document to the named persons in the first instance, on the basis that Lenark may renew an application for access by Mr Chisholm to that information if it can identify any specific relevance of it to the matters in issue in the proceedings. Tab 17 25The document behind this tab is an email exchange between Mr Avery and a representative of the entity which provides rail services to the area of the exploration tenements occupied by Guildford Coal. Mr Easton's evidence, on information and belief from Mr Avery, is that the email would disclose Guildford Coal's principal contact within that rail operator, projected requirements for haulage of coal along the rail line and its strategy regarding its proposed agreement with the rail operator; and that disclosure of the document would give a competitor of Guildford Coal the commercial advantage of being able to negotiate its own agreement for haulage with knowledge of Guildford Coal's projected requirements for haulage, the terms on which it is seeking to negotiate with the rail operator and the individual with whom to negotiate. Mr Wenk also gives evidence on information and belief from Mr Ramsley, the Chairman of The Chairmen1, that substantial portions of this document, in particular material about coal haulage rates and capacity, is highly confidential and would put Guildford Coal at a competitive disadvantage if a competitor were to have that information available to it, and a competitor armed with that information would be in an advantageous position to seek to negotiate and secure its own access to infrastructure for coal haulage and capacity in preference to Guildford Coal. 26I do not consider that particular confidentiality of this document has been established. There is only one rail operator in the relevant area and it is unlikely to be difficult to identify the persons within it who should be contacted in order to negotiate rail transport arrangements for coal mines in that area. The information contained in that email in respect of Guildford Coal's projected requirements is two years old and in the most general terms and I cannot identify any substantive information in that email as to Guildford Coal's strategy in respect of a proposed agreement with the rail operator, still less the terms which it is seeking to negotiate with that rail operator. Guildford Coal has subsequently published information concerning its proposed transport arrangements in respect of the export of coal and, again, the evidence supporting the claim for confidentiality does not specifically identify the material which is said still to be confidential, by comparison with the information which is in the public domain. In my view, this document is sufficiently protected by the implied undertaking. Tabs 24 and 42 27The documents behind tabs 24 and 42 contain Guildford Coal's budget spanning the period 2010 to December 2012. The document behind tab 42 is an earlier version of the document which appears behind tab 24. Mr Fagan SC, who appears with Mr Bender for Lenark, submits that it is necessary for Mr Chisholm to have access to these documents because they contain budgets for expenditure on exploration tenements owned by Springsure, where a critical issue in the proceedings is a complaint as to the circumstances in which The Chairmen1 raised money from its existing shareholders and new shareholders and acquired tenements from Springsure in a manner which caused it to become an 85% shareholder in Springsure. In particular, Lenark contends that transaction was undertaken so that Springsure could apply the relevant funds to pay off an indebtedness for the benefit of a third party. 28Mr Easton's evidence, on information and belief from Mr Avery, is that the documents contain confidential data provided by a third party which was paid by Guildford Coal to research industry costs to input into Guildford Coal's modelling, but that particular information or its materiality is not identified. Mr Avery also notes that timelines provided in the budget would give knowledge of how Guildford Coal intends to proceed with its various projects, and Guildford Coal's expected expenditure in relation to those projects, but the significance of that matter is limited given the documents extend only to December 2012. The significance of the financial information contained in the document is limited by the fact that the large part of the period which it covers has now passed. Information as to the budgeted exploration for various tenements was also contained in the prospectus issued by Guildford Coal which again emphasises the availability of information in the public domain. The evidence before me again does not address the extent to which the information as to which confidentiality is claimed is distinct from the information which is already in the public domain. 29Mr Easton's affidavit, on information and belief from Mr Avery, also places strong emphasis on the fact that interrogation of the electronic spreadsheet containing this information would disclose formulas developed by Mr Avery to predict and forecast costs for Guildford Coal's projects. It is possible to readily address this concern in a manner raised in submissions before me, by permitting access to Mr Chisholm, subject to a confidentiality undertaking, to a hard copy of this document which is not capable of interrogation in that manner. I consider that an electronic copy of that document should not be made available to Mr Chisholm at this stage, pending any identification by Lenark of the relevance of the document in the proceedings. Tab 46 30Mr Easton's evidence, on information and belief from Mr Avery, is that the document behind tab 46 contains confidential details of Guildford Coal's minimum exploration commitments for its tenements which is not publicly available information, which could be used by a trade rival in any negotiation to acquire those assets. Lenark points out, with some force, that there is no suggestion that the relevant assets are for sale and, if they were, a potential inquirer would require access to such information in the course of any due diligence inquiry into those assets. Nonetheless, Lenark has not identified any likely relevance of Guildford Coal's minimum exploration commitments to the matters in issue in the proceedings and, balancing the relevant factors, I consider that Guildford Coal's interest in maintaining the confidentiality of that information is sufficient to warrant limiting access to that document to the named persons, in the absence of any identified need to make this document available for review by Mr Chisholm. Tabs 77 and 79 31The documents contained behind tabs 77 and 79 contain a draft record of a meeting between representatives of The Chairmen1 and a third party. Mr Easton, on information and belief from Mr Avery, supports the confidentiality of these documents by the general formulation to which I referred in paragraph 22 above. Mr Heinecke (who is a solicitor who acts for Springsure) gives evidence on information and belief from Mr Andrew Poole (who is a director of Springsure) supporting The Chairmen1's and Guildford Coal's claim for confidentiality in respect of these documents on the basis that, although the proposed offer contained in that document was ultimately not accepted, knowledge of the participants in the negotiations could create a real potential for those investors being contacted in the future to progress an alternative investment opportunity in competition with Springsure's project. 32Guildford Coal and The Chairmen1 seek to mask the names of two individuals who represented the third party at that meeting. I can see no basis for treating the names of those individuals as confidential information and, in any event, the identity of the third party has been disclosed and Lenark would have no particular difficulty in deducing the persons who are likely to have represented it in the present circumstances. 33The Chairmen1 and Guildford Coal also seek to redact information as to a particular proposal contained in these documents so that it is not made available to Mr Chisholm. That proposal does not involve any particular technicality which would give rise to any difficulty on the part of Lenark's legal advisers in understanding it or assessing its relevance to the proceedings. I consider that The Chairmen1's and Guildford Coal's interest in maintaining the confidentiality of that information is sufficient to warrant limiting access to that portion of these documents to the named persons, on the basis that Lenark may renew an application for access by Mr Chisholm to that information if it can identify any specific relevance of it to the matters in issue in the proceedings. Tabs 111, 113 and 115 34Guildford Coal, Springsure and The Chairmen1 seek restrictions on access in respect of the documents contained behind tabs 111, 113 and 115 on the basis that they relate to confidential negotiations and contain information concerning a valuation of an asset by one of Guildford Coal's consultants and proposed commercial agreements or arrangements between Guildford Coal and Springsure. Mr Heinecke, on information and belief from Mr Poole, also supports the claim for confidentiality over the documents behind tabs 111, 113 and 115 on the basis that they refer to confidential negotiations and communications with shareholders of Springsure concerning support for a share purchase proposal by Guildford Coal. Mr Heinecke contends that the acquisition of Springsure shares by Guildford Coal was announced to ASX but the various commercial proposals and dates when and to whom those proposals were communicated remain confidential to Springsure and its shareholders. While Mr Heinecke, on Mr Poole's instructions, identifies the claim to confidentiality, he does not identify any prejudice which would be suffered by Springsure if that information were made available on discovery in these proceedings, whether on the basis of the implied undertaking or subject to a specific confidentiality undertaking. 35Mr Fagan put that these documents were potentially of significance in the proceedings and I am satisfied that they are documents which Lenark's legal advisers would need to draw to Lenark's attention in order to obtain proper instructions as to the conduct of the proceedings. In these circumstances, I consider that the interest in ensuring that Lenark is able to give proper instructions in the proceedings requires that these documents be made available to Mr Chisholm subject to a confidentiality undertaking. Tab 119 36Guildford Coal claims confidentiality over the document behind tab 119 on the basis that it discloses the potential acquisition by Guildford Coal of a mining project. That document is dated May 2010; Mr Easton's affidavit, on information and belief from Mr Avery, does not address the currency of the information contained in it or whether the potential acquisition which was under consideration nearly two years ago is still under consideration; and the risk to Guildford Coal from the document being made available is identified in only the most general terms. In my view, Lenark's legal advisers are likely to need Mr Chisholm's instructions to identify any potential relevance of this document to the proceedings. On balance, I consider it also should be made available for inspection by Mr Chisholm subject to a confidentiality undertaking. Access by Mr Forster 37The form of confidentiality undertaking proposed by The Chairmen1 and supported by Guildford Coal would not permit the provision of the relevant documents to Mr Ron Forster, who is a partner of Minter Ellison who specialises in mergers and acquisitions. It appears that Mr Forster advises Mr Chisholm and associated entities in relation to some commercial matters. In my view, Mr Forster would be placed in a difficult position if he had access to information which would be relevant to providing commercial advice to Lenark, Mr Chisholm or Mr Chisholm's associated entities, which is a difficulty of a greater order than would be confronted by those representing Lenark in the litigation since Mr Forster's role is wider in character. 38I consider that Mr Forster should be treated in the same manner as Mr Chisholm and, where a document may be made available to Mr Chisholm subject to a confidentiality undertaking, it may also be made available to Mr Forster subject to such an undertaking. Where I have indicated that a document may not presently be made available to Mr Chisholm, it may also not be made available to Mr Forster. Confidentiality undertaking 39The parties have provided me with a form of confidentiality undertaking which has been agreed between Lenark and The Chairmen1 and which addresses two matters which I raised in the course of submissions, namely the fact that any such undertaking should be subject to further order of the Court and that it should permit access to relevant documents to expert witnesses retained by the parties. Guildford Coal submits that an undertaking should also be given to the interested third parties. That could either be addressed by an amendment to the proposed undertaking or a separate undertaking in favour of each third party limited to those documents as to which that party is entitled to protection beyond the implied undertaking, as agreed between the parties where agreement was reached, and otherwise in accordance with this judgment. Orders 40I direct the parties to send agreed draft orders to give effect to my judgment to my Associate by 4pm on 8 May 2012 or, if no agreement can be reached, their respective drafts of those orders and short submissions as to the differences between them. The parties should also address the question of costs in those submissions. Unless any party requests a further oral hearing as to the form of orders, I propose to deliver my judgment in chambers in respect of the orders necessary to give effect to this judgment. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 07 May 2012