Macquarie Telecom Pty Ltd v City Hunter Pty Ltd [2014] NSWDC 114

District Court New South Wales

Medium Neutral Citation: Macquarie Telecom Pty Ltd v City Hunter Pty Ltd [2014] NSWDC 114 Decision date: 20 May 2014 Before: Cogswell SC DCJ Decision: Suppression order made. Catchwords: CIVIL LAW - application for suppression order - not opposed - consideration of s 6 of the Court Suppression and Non-publication Orders Act 2010, "primary objective of the administration of justice is to safeguard public interest in open justice" - necessary for plaintiff to put on evidence to meet a defence - "prejudicial to the proper administration of justice" for plaintiff to choose between abandoning claim or prosecute at expense of exposing commercially sensitive information. Legislation Cited: Court Suppression and Non-publication Orders Act 2010 (NSW) ss 6, 8. Category: Interlocutory applications Parties: Macquarie Telecom Pty Limited (plaintiff) City Hunter Pty Limited (defendant) Representation: Counsel: C Bova (plaintiff) A Chee (defendant) Solicitors: Aitken Lawyers (plaintiff) HS Lawyers (defendant) File Number(s): DC 2012/00166499

INTERLOCUTORY Judgment 1These are proceedings where one company is suing another company for a debt. The claimed debt is for services provided. The suing company is Macquarie Telecom Pty Ltd and the other company is City Hunter Pty Ltd. 2Part of City Hunter's defence raises an issue which Macquarie Telecom says it needs to address by putting on certain evidence. Mr C Bova of counsel who appears for Macquarie Telecom has tendered that evidence but asked for a suppression order under the Court Suppression and Non-publication Orders Act 2010 (NSW). 3Mr Bova says that the documents which he has tendered contain commercially sensitive information. That is, I infer, that if the information were public it could damage the business of his client. His point is that his client is in a position where it has to put on the evidence in order to meet the defence raised by City Hunter. If his client cannot put this evidence on then it will be frustrated in its attempts to prosecute the litigation as a party. 4Mr A Chee, who appears for City Hunter, does not oppose the order. Parliament, however, in enacting this law was clearly very concerned about the public interest in the administration of justice. Section 6 of the Act provides that in deciding whether to make an order such as the one that Mr Bova seeks I "must take into account that a primary objective of the administration of justice is to safeguard the public interest in open justice." That is a very important consideration. 5Mr Bova relies on the grounds specified in s 8(1)(a) and (e). He argues that the order is "necessary to prevent prejudice to the proper administration of justice." His client has to use the court to sue for what it says is a debt. In order to meet a defence to its claim it is forced to put on this evidence. His client is therefore in a position of choosing between relinquishing its protection of very sensitive commercial information and successfully prosecuting its case. 6It would to my mind be prejudicial to the proper administration of justice for Mr Bova's client to have to decide against putting on the evidence and be forced to relinquish the point it wants to make in response to City Hunter's claim. I am satisfied, having taken into account safeguarding the public interest in open justice, that Mr Bova's client should not be put in that position. It should be able to use the resources of the justice system in order to prosecute its claim without suffering a commercial detriment. Having to either abandon the claim or prosecute it at the expense of exposing commercially sensitive information would be prejudicial, in my opinion, to the proper administration of justice. 7For those reasons I propose to make the order sought in the form of order provided by Mr Bova signed by me and dated today. The order is in respect of two folders which are marked for identification 6. HIS HONOUR: I'll just depart from my reasons. Am I right, Mr Bova, that exhibit DH2 is not confidential? BOVA: Correct, your Honour. HIS HONOUR: Good. I marked for identification 6 yesterday DH1 and DH2. I remove the MFI 6 marking from DH2, which is not confidential, and my associate will attach that to folder 1 of DH1 and she will attach to folder 2 of DH1 a similar MFI 6.