Crown Resorts Limited v Zantran Pty Limited

• Jurisdiction: Australia Federal only
• Judgment Date: 22 January 2020
• Neutral Citation: [2020] FCAFC 1
• Date: 22 January 2020
• Court: Federal Court

FEDERAL COURT OF AUSTRALIA

Crown Resorts Limited v Zantran Pty Limited [2020] FCAFC 1

Appeal from:	Zantran Pty Limited v Crown Resorts Limited [2019] FCA 641
File number:	VID 553 of 2019
Judges:	ALLSOP CJ, WHITE AND LEE JJ
Date of judgment:	22 January 2020
Catchwords:	CONTRACTS – express obligations of confidence allegedly preventing voluntary communications with the solicitors for opposing party in litigation – primary judge followed AS v Minister for Immigration and Border Protection (Ruling No 6) [2016] VSC 774; 53 VR 631 in exercising a discretion to relieve persons owing otherwise enforceable obligations of confidence to facilitate the overarching purpose of civil litigation rather than considering whether the provisions were void at law because they had a tendency to interfere adversely with the administration of justice or were enforceable by way of injunction in equity – held that the approach in AS v Minister for Immigration and Border Protection (Ruling No 6) is contrary to principle leading to error in the making of the primary judge’s order CONFIDENTIAL INFORMATION – consideration of the sources of obligations of confidence PRACTICE AND PROCEDURE – consideration of orthodox approaches to enforcing obligations of confidence and obtaining information from potential witnesses in advance of trial
Legislation:	Civil Procedure Act 2005 (NSW) Pt 6, div 1 Civil Procedure Act 2010 (Vic) ss 7, 48, 49 Federal Court of Australia Act 1976 (Cth) ss 5, 21, 33V, 33ZF, 37M, 37N, 37P, Pt VB Federal Court Rules 2011 (Cth) Pt 21
Cases cited:	A v Hayden [1984] HCA 67; 156 CLR 532 AG Australia Holdings Ltd v Burton [2002] NSWSC 170; 58 NSWLR 464 AS v Minister for Immigration and Border Protection (Ruling No 6) [2016] VSC 774; 53 VR 631 Attorney-General v Guardian Newspapers (No 2) [1990] 1 AC 109 Australian Securities and Investments Commission v Australia and New Zealand Banking Group Limited [2019] FCA 1284 AWB Ltd v Cole (No 2) [2006] FCA 913; 253 FCR 288 at 299 [45] British Steel Corporation v Granada Television Ltd [1981] AC 1096 Cactus Imaging Pty Ltd v Peters [2006] NSWSC 717; 71 NSWLR 9 Castrol Australia Pty Ltd v EmTech Associates Pty Ltd (1980) 51 FLR 184 Church of Scientology of California v Kaufman [1973] RPC 627 Church of Scientology of California v Kaufman [1973] RPC 635 Coco v AN Clark (Engineers) Ltd [1969] RPC 41 Commonwealth of Australia v John Fairfax & Sons Ltd [1980] HCA 44; 147 CLR 39 Commonwealth of Australia v Sanofi (formerly Sanofi-Aventis) [2017] FCA 382 Cooper v Universal Music Australia Pty Ltd [2006] FCAFC 187; 156 FCR 380 Corrs Pavey Whiting & Byrne v Collector of Customs (Vic) [1987] FCA 266; 14 FCR 434 Dalgety Wine Estates Proprietary Limited v Rizzon (1979) 141 CLR 552 Decor Corporation Pty Ltd v Dart Industries Inc (1991) 33 FCR 397 Dillon v RBS Group (Australia) Pty Limited [2017] FCA 896; 252 FCR 150 Egerton v Brownlow (1853) 4 HL Cas 1; 10 ER 359 Fraser v Evans [1969] 1 QB 349 Gartside v Outram (1856) 26 LJ Ch (NS) 113 Howard v Odhams Press Ltd [1938] 1 KB 1 Hubbard v Vosper [1972] 2 QB 84 Initial Services Ltd v Putterill [1968] 1 QB 396; [1967] 3 All ER 145 Interfirm Comparison (Australia) Pty Ltd v Law Society of New South Wales [1975] 2 NSWLR 104 Jackson v Sterling Industries Limited (1987) 162 CLR 612 Johnson v AED Oil Ltd [2011] VSC 94 Jones v Treasury Wine Estates Limited [2016] FCAFC 59; 241 FCR 111 Kadian v Richards [2004] NSWSC 382; 61 NSWLR 222 Lord Ashburton v Pape [1913] 2 Ch 469 Malone v Metropolitan Police Commissioner [1979] 2 All ER 620 Moorgate Tobacco Co Ltd v Philip Morris Ltd [No 2] [1984] HCA 73; 156 CLR 414 Perpetual Trustee Company Ltd v Khoshaba [2006] NSWCA 41; 14 BPR 26,639 Richards v Kadian [2005] NSWCA 328; 64 NSWLR 204 Rosewood Advertising Pty Ltd v Hannah Marketing Pty Ltd [2000] NSWSC 1034 Saltman Engineering Co Ltd v Campbell Engineering Co Ltd (1948) 65 RPC 203 Seven Network Limited v News Limited [2007] FCA 1062 Talbot v General Television Corporation Pty Ltd [1980] VR 224 Tito v Waddell (No 2) [1977] Ch 106 Trade Practices Commission v Allied Mills Industries Pty Ltd (1980) 55 FLR 108 Weld-Blundell v Stephens [1919] 1 KB 520 Woodward v Hutchins [1977] 1 WLR 760 ; Australian Law Reform Commission, Managing Discovery: Discovery of Documents in Federal Courts (Report No 115, March 2011) Edmonds, C, “Appeals from Discretions, Satisfactions and Value Judgments: Reviewing the House Rules” (2017) 41(2) Melbourne University Law Review 647 Heydon, J D, Heydon on Contract (Thomson Reuters, 2019) Heydon, J D, Leeming, M J and Turner, P G, Meagher, Gummow & Lehane’s Equity Doctrines and Remedies (5th ed, Butterworths, 2015) Leeming, M, A response to Peter Turner, “Equitable Compensation for Breach of Confidence”, Seminar paper, 30 March 2017 Pomeroy, N J, Equity Jurisprudence (3rd ed, 1905) Richardson, M, Bryan, M, Vrankan, M and Barnett, K, Breach of Confidence: Social Origins and Modern Developments (Edward Elgar Publishing, 2012)
Date of hearing:	29 August 2019
Date of last submissions:	6 September 2019
Registry:
Division:
National Practice Area:
Sub-area:	Corporations and Corporate Insolvency
Category:	Catchwords
Number of paragraphs:	156
Counsel for the Appellant:	Mr N Young QC with Ms F Shand and Mr H Whitwell
Solicitor for the Appellant:	Minter Ellison Lawyers
Counsel for the Respondent:	Ms R Doyle SC with Mr N De Young and Ms K Burke
Solicitor for the Respondent:	Maurice Blackburn Lawyers

ORDERS

		VID 553 of 2019
BETWEEN:	CROWN RESORTS LIMITED (ACN 125 709 953) Appellant
AND:	ZANTRAN PTY LIMITED (ACN 078 669 155) Respondent

JUDGE:	ALLSOP CJ, white and lee jj
DATE OF ORDER:	22 JANUARY 2020

THE COURT ORDERS THAT:

1. The respondent be refused leave to file and rely upon the proposed notice of contention provided to the Court on 2 September 2019.

2. The appeal be allowed.

3. Order 1 made by the primary judge on 8 May 2019 be set aside and in lieu thereof there be an order that the interlocutory application filed by Zantran Pty Limited on 3 October 2018 be dismissed.

4. Within seven days of publication of reasons, each of the parties file and serve an outline of submissions, limited to two pages, setting out the nature of the order as to costs for which it contends as to the costs of the application for leave to appeal and the appeal.

Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

ALLSOP CJ:

Introduction

1. I have read the reasons to be published of Lee J. I agree with the orders proposed by his Honour and in the reasoning therefor; I also agree generally with his Honour’s reasons. Given the importance of the matter, I would prefer to express for myself why I consider...