Commercial notes No. 11

No. 11
7 September 2004

This issue

Indemnity clauses – are you protected?
Legal professional privilege and commercial transactions
Confidentiality of tender documents

Procurement is a dynamic area of government activity in
which new trends and requirements are constantly evolving.
It is an area that is increasingly subject to challenge
and scrutiny.

Those responsible for managing procurement and contract
management need to understand a wide range of matters such
as legal process (also known as probity) considerations,
applicable government policies such as the procurement
guidelines, what approvals they require for their projects
and the implications of impending policy changes (such
as changes to the procurement guidelines as a result of
the Australia – United States Free Trade Agreement).

Each of these matters can impact on the tender and contracting
strategy for a particular project. As tender processes
become more complex, there is an increased risk of dispute
or litigation – agencies need to know what information
they will be required to disclose in the event of litigation.

In this edition of Commercial Notes, we highlight some
recent cases which impact on government tendering and contracting.

Henry Addison

Henry Addison
Senior Executive Lawyer
Australian Government Solicitor
T 02 6253 7264
F 02 6253 7311

Carly Ingles

Carly Ingles
Lawyer
Australian Government Solicitor
T 03 9242 1494
F 03 9242 1481

In addition to process and strategy considerations, risk
management is a critical consideration for all procurement
projects. Risk allocation, indemnities and insurance are
more relevant than ever whether in the context of a major
infrastructure project, an outsourcing or a more standard
procurement.

Andar Transport Pty Ltd v Brambles Ltd [2004] HCA 28;
(2004) 206 ALR 387 demonstrates the importance to clients
of ensuring that indemnities in their contracts provide
the protection they are seeking.

In this case the High Court considered whether an indemnity
provided by a company subcontracted to provide drivers
to Brambles Ltd (Brambles) applied to a claim by an employee
driver of that company against Brambles for an injury suffered
by the employee.

The majority found that Brambles could not claim an indemnity
against liability for negligence for this claim under the
contract. The Court did, however, find that Andar Transport
Pty Ltd (Andar) was liable to make a contribution under
the Wrongs Act 1958 (Vic) (the Wrongs Act).

Background

Brambles provides laundry delivery services to hospitals,
including the delivery by truck of trolleys of linen. Andar
was contracted by Brambles to provide laundry delivery
services by employing drivers to load, deliver and unload
the linen as directed by Brambles. Mr Daryl Wail was a
driver employed by Andar. He was also one of two directors
and one of two shareholders of Andar.

While unloading laundry, Mr Wail damaged his lower back
attempting to move one of the trolleys. He successfully
sued Brambles for negligence for failing to ensure that
the trolleys could be manoeuvred without risk of injury
and having regard to their excessive weight when fully
laden.

During the proceeding, Brambles joined Andar as a third
party, seeking to rely on an indemnity in the contract
between Brambles and Andar (the Brambles contract), or
alternatively, contribution under the Wrongs Act on the
basis of Andar's alleged negligence as Mr Wail's
employer. The trial judge dismissed Brambles' claims
against Andar.

Brambles appealed to the Victorian Court of Appeal, which
held that Andar was obliged under clause 8 of the Brambles
contract to indemnify Brambles against all sums payable
by Brambles in the principal proceeding.

The Court of Appeal also held that Brambles was entitled
to a contribution under the Wrongs Act but that the existence
of the indemnity made it unnecessary to further consider
the contribution claim. Andar argued that as a result of
its corporate structure (i.e. that Mr Wail was a director)
it was not liable to Mr Wail, or to Brambles for contribution
under the Wrongs Act.

Andar appealed to the High Court, which considered two
issues:

  • whether the Court of Appeal erred in concluding that
    Andar was contractually obliged to indemnify Brambles
    for liability incurred as a result of Mr Wail's
    injury
  • whether the Court of Appeal erred in concluding that
    Brambles was entitled to seek contribution from Andar
    under the Wrongs Act.

The indemnity

The Brambles contract

Andar provided two indemnities under the Brambles contract:

  • clause 4.6 provided that Andar agreed:

    [to] assume sole and entire responsibility for and indemnify
    [Brambles] against all claims liabilities losses expenses
    and damages arising from operation of the Vehicle by
    reason of any happening not attributable to the wilful
    negligent or malicious act or omission of [Brambles].

  • clause 8 provided that Andar indemnified Brambles
    from and against (amongst other things) all actions,
    claims, damages, proceedings and costs in respect of
    or arising from:
    • loss, damage, injury or accidental death from any
      cause to property or person caused or contributed to
      by the conduct of the Delivery Round by Andar (clause
      8.2.2)
    • loss, damage, injury or accidental death from any
      cause to property or person occasioned or contributed
      to by any act, omission, neglect or breach or default
      of [Andar] (clause 8.2.3).

The High Court considered the application of the indemnity
in clause 8.

Construction of clauses 8.2.2 and 8.2.3

The Court, by a 6–1 majority, held that Andar did
not indemnify Brambles in respect of liability arising
as a result of Mr Wail's injury.

Andar submitted that clauses 8.2.2 and 8.2.3 were limited
to the indemnification of Brambles against any vicarious
liability which Brambles might incur against third parties – thereby
preventing recourse to the clauses in respect of injuries
suffered by Mr Wail.

Gleeson CJ, McHugh, Gummow, Hayne and Heydon JJ agreed
with Andar's submission. They found:

  • A primary aim of the Brambles contract was to ensure
    that Brambles could present to the public a seamless
    delivery operation. For example, all trucks were required
    to be painted with Brambles' livery and name. As
    a result there was a real possibility that a suit would
    be brought against Brambles for the wrongdoing of Andar – clauses
    8.2.2 and 8.2.3 were designed to protect against this
    possibility.
  • Clause 8.2.2 was limited to liability arising in connection
    with the 'conduct of the Delivery Round by Andar'.
    Under clause 2 of the Brambles contract, Andar could
    conduct the round only through a driver. In the absence
    of an express provision to the contrary, it was unlikely
    the indemnity extended to liability arising in respect
    of injuries suffered by a driver as a result of the conduct
    of the Delivery Round by that same person.
  • Clause 8.2.3 contains two elements: first, there must
    be an injury suffered by a 'person' and second,
    that injury must be occasioned, or contributed to, by
    the conduct of Andar. The conduct of Andar is the conduct
    of the driver. The structure of the clause therefore
    suggests that the person in the first element is different
    to the person in the second element (the driver).

This construction was considered to be consistent with
clause 4.6.

To the extent that the indemnity was ambiguous, the majority
applied the principle regarding indemnities as set out
in Ankar Pty Ltd v National Westminster Finance (Australia)
Ltd (1987) 162 CLR 549 (Ankar) that any ambiguity in the
operation of an indemnity should be read in favour of the
party giving the indemnity (in this case, Andar).

Kirby J, in a separate judgment, agreed with this construction
on the basis that it was consistent with clause 4.6 and
the rule in Ankar. Kirby J also indicated that the Court
may, one day, revisit Ankar.

Callinan J dissented, finding that the Brambles contract
effected a radical change in the legal relationship between
Mr Wail and Brambles; that is, from employee and employer
to independent contractors. His Honour held that to read
the Brambles contract so that Andar was not obliged to
indemnify Brambles for the liability arising as a result
of Mr Wail's injury would be to put Mr Wail back
in a position of employee to Brambles, thus subverting
the whole intention of the parties.

Wrongs Act claim

In respect of the application of the Wrongs Act, the question
to be decided was whether Andar was liable to Mr Wail for
the injury suffered by him. If so, Andar was liable to
make a contribution to Brambles under the Wrongs Act. The
majority (Callinan J dissenting) found that Andar had failed
in its duty to take reasonable care and that Mr Wail was
injured as a result, and was therefore liable to Brambles
under the Wrongs Act to make a contribution. The question
of quantum of contribution was remitted to be determined
by the Court of Appeal.

In the course of the proceedings, Andar sought to exclude
its liability to contribute under the Wrongs Act by arguing:

  • Mr Wail's responsibility for the day-to-day
    operation of Andar's laundry service business prevented
    his recourse to Andar (as employer) for breach of the
    common law duty to take reasonable care; and
  • that it should not be liable to Mr Wail, in his capacity
    as employee, for a breach of duty committed by him in
    his capacity as a director.

The majority rejected Andar's argument on the basis
that Andar continued to be a separate legal entity (they
referred to Salomon v Salomon & Co 1897 [AC] 22), although
its actions were carried out by natural persons. Therefore,
the duty to take reasonable care for the safety of employees
was imposed on Andar (as employer) directly and not on
the individual directors. It was irrelevant that Mr Wail
had day-to-day control of the part of Andar's business
which related to its obligations under the agreement. Kirby
J agreed with this analysis.

Callinan J dissented, finding that Mr Wail's negligence
was the appellant's negligence. His Honour based
his finding on the fact that Mr Wail was the director responsible
for the day-to-day operation of the business and was the
employee injured. In other words, His Honour found that
there were no other natural persons acting on behalf of
Andar to make Andar responsible for Mr Wail's actions.

Andar also argued that, since the contributory negligence
of Mr Wail was 'precisely equivalent' to the
fault of Andar, it would be inappropriate to require Andar
to contribute to Brambles if the damages owed by Brambles
to Mr Wail had already been reduced due to Mr Wail's
contributory negligence.

For the same reasons as above, the majority held that
the apportionment of liability between Mr Wail and Brambles
was a distinct and separate inquiry to the apportionment
of liability between Andar and Brambles. The majority refused
to consider the apportionment of liability between Mr Wail
and Brambles when determining the quantum of contribution
owed by Andar.

Kirby J held that it was a matter for the Court of Appeal
to decide. However, he considered the decision on Mr Wail's
contributory negligence to be relevant to any decision
on the apportionment of liability between Andar and Brambles.

Conclusion

The majority of the High Court stated that the fact that 'the
Agreement is a standard form document . . . is a significant
circumstance for questions of construction of the document.' As
noted, the majority found that the relevant indemnity provision
(clause 8) was ambiguous and applied the principle in Ankar
that any ambiguity in the operation of an indemnity should
be read in favour of the party giving the indemnity.
The case reinforces the fundamental point that the parameters
of an indemnity need to be clear and certain if the indemnity
is to be readily enforceable. That is, does the indemnity
provision in its terms clearly define the categories of
damage, the range of acts, and the parties covered by the
indemnity?

Tips for clients

  • Prior to contract execution clients should review
    the parameters of an indemnity, in the context of the
    specific goods or services being delivered under the
    contract, to ensure it confers the protection they
    require. This exercise, which is essentially a risk
    assessment, should be done irrespective of whether
    an indemnity is a standard provision in a standard
    form document.
  • If an FMA agency is considering giving an indemnity
    rather than being the beneficiary of an indemnity,
    careful consideration must also be given to the requirements
    of Regulation 10 of the Financial Management and Accountability
    Regulations 1997, Finance Circular 2003/02 and Financial
    Management Guidance No. 6: 'Guidelines for Issuing
    and Managing Indemnities, Guarantees, Warranties and
    Letters of Comfort'. That policy sets out a range
    of risk management considerations.

Text of the decision is available at: <http://www.austlii.edu.au/au/cases/cth/high_ct/2004/28.html>.

Henry Addison is a Senior Executive Lawyer practising
in the areas of Commonwealth procurement of goods and services.
He provides strategic, legal and process/probity advice
to agencies on their procurement activities and contracting
policy generally. Prior to joining AGS Henry worked in
the Commonwealth Department of Transport for over seven
years as the Director of Transport and Corporate, providing
advice on procurement, contracting and strategic commercial
matters (such as outsourcing and privatisation). Prior
to joining the Department of Transport Henry had a varied
legal career, including positions as a commercial lawyer
in private practice in London and Los Angeles.

Carly Ingles is a Lawyer practising primarily in
the areas of government purchase and sale of goods and
services, property and leasing. Carly advises on all aspects
of government commercial transactions including risk management,
liabilities and indemnities, as well as corporate law,
regulatory and contract management issues and plain English
drafting. Prior to joining the AGS Commercial Team in Melbourne,
Carly was a solicitor assisting the Royal Commission into
the Building and Construction Industry.

Stephen Lucas

Stephen Lucas Senior
Executive Lawyer
Australian Government Solicitor
T 03 9242 1200 F 03 9242 1278

Agencies have many issues to consider in a large project.
It is always to be hoped that nothing goes wrong and that
the end game is not litigation. However, if it is, a key
issue will be whether documents are protected by legal
professional privilege (the privilege).

Where an agency has a number of different advisers (for
example, a team of lawyers, accountants, investment bankers
or others), information and documents are likely to circulate
freely within the team over a long period. There may also
be regular team meetings in which minutes are taken. In
litigation these documents can be a goldmine for the other
side.

The privilege is jealously protected by the Courts. The
High Court sees it as 'a practical guarantee of fundamental,
constitutional or human rights . . . ensuring unreserved
freedom of communication with professional lawyers'.
1 However, it is also true that loss of the privilege is
final. In the words of Kirby J:

The genie cannot be returned to the bottle. The privilege
is effectively lost. It cannot be retrieved. 2

The privilege applies to confidential communications between
a client and the client's legal adviser for the dominant
purpose of giving or receiving legal advice (advice privilege)
or for use in anticipated litigation (litigation privilege):
Esso Australia Resources Limited v Commissioner of Taxation (1999) 201 CLR 49. Some jurisdictions provide for the privilege
by statute, notably the federal jurisdiction. 3 In the
context of commercial transactions, advice privilege will
generally be the most relevant consideration unless litigation
is anticipated at the time the communications occur.

Where a third party creates a document

The Federal Court has recently considered if the privilege
applies where a third party creates the document which
is then used by the lawyer.

In Pratt Holdings Pty Ltd v
Commissioner of Taxation [2004] FCAFC 122; (2004) 207
ALR 217, Pratt Holdings (Pratt) sought
advice from Arnold Bloch Leibler (ABL) about the consequences
of significant losses incurred by an entity in the Pratt
Group and how this affected a balance sheet reconstruction.
ABL advised Pratt to obtain a valuation of assets from
an independent accounting firm to assist in determining
the amount of the losses. PricewaterhouseCoopers (PWC)
was engaged and produced a report. PWC did not deal directly
with ABL in the process. The ATO sought production of
the report by PWC under section 263 of Income Tax Assessment
Act 1936.

At first instance Kenny J ruled that the report was not
privileged, drawing a sharp distinction between advice
privilege and litigation privilege. She held that advice
privilege is in issue here, and as a third party is involved
the privilege does not apply. It could only apply, Kenny
J held, where the third party is acting as a means of communicating
with the solicitor to obtain or receive legal advice.

On 12 May 2004 the Full Federal Court (Finn, Stone and
Merkel JJ) set aside the decision of Kenny J. Finn and
Stone JJ, delivered separate judgments, although their
reasoning is similar. Merkel J said that he agreed with
both Judges. The Full Court emphasised that the key question
is whether when Pratt commissioned the report its dominant
purpose was to communicate it to ABL for the purpose of
obtaining legal advice. 4 Kenny J did not make
a finding as to purpose and the case has been remitted
back to her
so that this question can be determined.

Both Finn and Stone
JJ noted that there is a controversy in the cases as to
whether the privilege should be divided
into advice privilege and litigation privilege. Stone J
pointed out that when the High Court adopted the 'dominant
purpose' test in Esso, there was no suggestion
that there was more than one rationale for the privilege.
[84]
However, the Judges did not need to resolve the controversy
as they were able to decide the case on the basis of advice
privilege.

Finn J noted that the important consideration is not the
nature of the expert's relationship with the client
but rather the function performed. He said there are clear
policy reasons to extend the privilege to third party authored
documents; to deny a party access to expert advice would
be to disadvantage a party who lacked in-house resources.
He noted that use of experts is commonplace in complex
and technical matters. [43]

Finn J emphasised that particular care must be taken to
evaluate Pratt's purpose in commissioning the report.
In determining a preferred business structure a person
may seek advice from accountants and others for business
reasons. It does not follow that just because a document
is then lodged with a lawyer it attracts immunity. [46,
47] Stone J made similar comments saying the difficulties
in proving purpose 'cannot be underestimated' and
noted that advice on commercially advantageous ways to
structure a transaction is extremely unlikely to attract
privilege. [107]

Finn J pointed out:

The less the principal performs the function of a conduit
of the documentary information to the legal adviser,
the more he or she filters, adapts or exercises independent
judgment in relation to what of the third party's
document is to be communicated to the legal adviser,
the less likely it is that that document will be found
to be privileged in the third party's hands. [48]

This is because if the document is really intended for
use by the lawyer in providing legal advice, it can be
inferred that the client should not need to change it.

Stone J noted in the context of the advice privilege that
where the lawyer rather than the client commissions work
from a third party, the privilege may not be attracted:
the reason being that any purpose is that of the lawyer
and not the client. [92–96]

Where a lawyer gives 'commercial' advice

Where a lawyer is engaged to primarily provide legal advice
and some commercial or other advice is also provided as
part of that retainer, the courts have taken a common sense
approach and held that all of the advice is privileged.

In the case of DSE Holdings Pty Ltd v InterTAN Inc (2003)
203 ALR 348 InterTAN engaged Allen Allen & Hemsley
(AAH), which later became Allens Arthur Robinson, as solicitors
and Solomon Smith Barney (SSB) as financial advisers to
assist it with the sale of shares in its Australian subsidiary.
Implicit in AAH's retainer was a request to advise
the client on all matters 'great and small'.
Inevitably AAH provided advice at various times that was
of a general commercial or administrative nature. Allsop
J said:

What legal advice is, however, goes beyond formal advice
as to the law. The recognition does not see the privilege
extend to pure commercial advice. In any given circumstance,
however, it may be impossible to disentangle the lawyer's
views of the legal framework from other reasons that
all go to make up the "advice to what should prudently
and sensibly be done in the relevant legal frame work." 5

Where advisers use each other as 'sounding boards'

There may be occasions where a lawyer and another advisor
use each other as 'sounding boards'. Following
the Full Court decision in Pratt, if such communications
are to be privileged it will be necessary to show, as a
matter of fact, that the dominant purpose test is satisfied.
Allsop J considered a similar situation in DSE Holdings.
He said that:

. . . where information is passed by lawyer to the client's
agent or vice versa as part of the continuum to keep
the lawyer informed so that advice may be given as required,
privilege will attach. [100] (emphasis added)

Allsop J noted that it is open to a client to appoint
a third party to communicate with a lawyer on their behalf
and the appointment may include 'the duty to give
information and instructions to the lawyer in discussions
with the lawyer and to receive the lawyer's views'.
If so, he found it difficult to understand why the third
party would not be in the same position as the client.
[94]

Tips for clients

  • Remember that if a commercial matter ends in litigation
    it is likely that you will want to claim privilege
    in relation to legal advice received in the course
    of the transaction.
  • Be cautious. Remember always that to attract the
    privilege the dominant purpose test must be satisfied
    as a question of fact and the onus of proof is on the
    party seeking to establish the privilege.
  • Large commercial matters often involve a range of
    advisers. In some cases, other advisers may interact
    directly with lawyers or at the very least be privy
    to legal advices. Where this is expected to be the
    case, ensure that at the start of a project retainers
    are carefully drafted, making clear the role of all
    in the team.
  • Consultants and lawyers may be appointed to communicate
    with each other on behalf of the client so that instructions
    may be provided and legal services provided. 6
  • In order to attract the privilege, the retainer
    of the lawyer should be expressed to be for a legal
    purpose (including where the lawyer is engaged to provide 'probity' or 'legal
    process' advice).
  • Written and oral reports intended to support legal
    advice (and thus attract the privilege) should be communicated
    by the expert directly to the lawyer, or with minimum
    filtering by the client.
  • Direct communications between the client and their
    lawyers remain the safest (from the point of view of
    privilege) and you may wish to consider this for the
    most sensitive advice.
  • If a lawyer is a party to correspondence and present
    at meetings and conversations between the client and
    the expert this will assist in establishing the privilege,
    but it is not conclusive.
  • Some documents are obviously covered by the privilege,
    for example, an advice on the letterhead of a legal
    practice or an opinion by counsel. Another document
    may be less clear and to maximise the chances of attracting
    the privilege you may wish to mark it 'confidential
    and subject to legal professional privilege'.
  • Communications between a client and a third party
    are often copied to the lawyer and the lawyer asked
    to comment. This will only attract the privilege if
    the dominant purpose test is satisfied.
  • If a lawyer is asked to chair or attend meetings
    at which other advisers are present, and the lawyer
    makes comments which are recorded in the minutes, it
    may be difficult to attract the privilege. It may assist
    if the minutes record comments by the lawyer as being
    legal advice (and confidential). Again you may wish
    to obtain the legal advice outside the meeting.

Text of the decision in Pratt Holdings can be viewed at: <http://www.austlii.edu.au/au/cases/cth/FCAFC/2004/122.html>.

Stephen Lucas is a Senior Executive Lawyer who
has extensive experience in complex litigation in many
areas of government law and in commercial disputes. As
well Stephen has been involved with a number of large commercial
projects including privatisations.

Notes

  1. Per McHugh J in Carter v Northmore Hale Davy & Leake (1995) 183 CLR 121 at 161. See also DSE
    (Holdings) Pty Ltd v InterTAN Inc (2003) 203 ALR 348 at paragraph 27
    where Allsop J states the underlying policy is to encourage 'free
    and frank expression facilitating the representation
    of the client in and about the due administration of
    justice'.
  2. Ampolex Ltd v Perpetual Trustee Company (Canberra)
    Ltd (1996) 70 ALJR 603 at 606.
  3. Section 118 of the Evidence Act 1995 (Cth) provides
    for the privilege, calling it 'client legal privilege'.
    The dominant purpose test is used. Section 118 applies
    only where privileged documents are sought to be 'adduced' in
    evidence and not at the discovery stage.
  4. Finn J at paragraph 42, Stone J at paragraph 87.
  5. Paragraph 45. This decision confirms earlier conclusions
    in 'Is Probity Advice Privileged?', Commercial
    Notes, Number 7, 23 April 2003.
  6. Given the comments of Stone J about the lawyer commissioning
    work from a third party, at paragraphs 92 to 96 of Pratt
    Holdings, particular care should be taken in drafting
    this section of the retainer.

STOP PRESS

The recent case of Bennett v CEO of Customs [2004] FCAFC
237 (25 August 2004) holds another important reminder for
agencies handling commercial work. Where the substance
of legal advice is disclosed to another party, that party
may be able to obtain that advice in discovery on the basis
that the privilege has been waived. For example, this might
occur where an agency seeks to justify its position to
an unsuccessful tenderer and writes advising it has obtained
legal advice and quotes the conclusion or substance of
the legal advice.

Peter Kidd

Peter Kidd Senior
Executive Lawyer
Australian Government Solicitor
T 02 6253 7210 F 02 6253 7301

Leah Wagg

Leah Wagg Graduate
Lawyer
Australian Government Solicitor
T 02 6253 7468 F 02 6253 7306

Following the Federal Court's decision in ACCC
v Baxter Healthcare Pty Ltd [2003] FCA 994 government agencies
should be aware that documents produced in connection with
tender processes may become available to third parties
in the course of litigation. Such documents will not be
protected simply because of their relationship to a tender
process.

Rather a court will determine whether documents are confidential
based on the information which they contain and the effect
that access to that information will have on the commercial
entities involved.

This case also demonstrates that in regard to discovery,
the typical practice of marking tender related documents
as 'commercial-in-confidence' will have no
effect unless the information contained in them is in
fact commercially sensitive. Before any attempt is made by an
agency to restrict access to any document whether or not
it is marked as commercial-in-confidence, the document
should be reviewed in order to determine whether in fact
it contains commercially sensitive information. Depending
on the facts, this may involve consulting the party who
produced the document.

Finally, government agencies should be aware that the
confidential status of tender documents can change over
time. Though a document may have been confidential at the
time it was produced, as time passes it will not necessarily
remain so. As a result, the later litigation is commenced,
the more likely it is that third parties will be granted
access to tender related documents in the course of discovery.

Background

Between 1998 and 2001, Baxter Healthcare Pty Ltd successfully
tendered for government contracts to provide sterile fluids
and peritoneal dialysis products in the Australian Capital
Territory, New South Wales, Queensland, South Australia
and Western Australia. In 2002, the ACCC commenced court
action against Baxter alleging that Baxter had bundled
products in these tenders in breach of section 46 (misuse
of market power) and section 47 (exclusive dealing) of
the Trade Practices Act 1974.

A number of the documents relevant to this case related
to the tender processes that Baxter had been involved in
and had been obtained by the ACCC from state government
agencies such as the NSW Department of Health. The ACCC
sought, at the request of such third parties, to obtain
undertakings from Baxter that access to these documents
would be restricted to certain nominated parties such as
legal representatives and expert witnesses. Baxter provided
undertakings in regard to some of the documents, however
after reviewing a sample of them came to the conclusion
that they were not in fact confidential and sought to be
released from the undertakings.

Decision

Whitlam J, having examined a sample of the documents over
which confidentiality had been claimed, held that all but
one of the documents in dispute were not confidential.
He did not accept the argument put by the ACCC on behalf
of third parties that the documents should be protected
because of their connection with the tender process, commenting
that:

. . . the claims to concerns over the integrity and probity
of the tender process rang hollow. Contracts in the public
sector for the supply of goods over a period of time are
for good reason subject to laws such as the Public Sector
Management (Goods and Services) Regulation 2000 (NSW).
However, there is no entitlement to keep evaluation processes
secret.

Baxter was released from the undertakings and Whitlam
J declared that the ordinary inspection regime would apply
to the documents.

Documents

The documents that the ACCC unsuccessfully sought to protect
on behalf of third parties included tender evaluation reports
and associated file notes and minutes and correspondence
of the contract management committee for one of the contracts
which Baxter was awarded. The ACCC also claimed confidentiality
over emails and letters of complaint it had received regarding
Baxter's actions in the tender processes and the
identity of individuals it had interviewed when investigating
a particular complaint. The basis of the claim of confidentiality
varied from document to document, with certain documents
being categorised by the ACCC as being subject to legal
professional privilege or public interest immunity or as
being claimed by third parties to be commercially sensitive
or commercial-in-confidence.

Whilst Whitlam J rejected all
of the confidentiality claims based on the commercial nature
of the documents, he did
note that at least one of them (an evaluation report that
set out the cost per treatment basis of a particular proposal)
would have been confidential at the time it was produced.
However, as the report was prepared in 2000, Whitlam J
took the view that it no longer contained any commercially
sensitive information.

Whitlam J did however accept that
access to the appendices of a set of purchase recommendations
for a pharmaceutical
products tender should be restricted to Baxter's
legal advisers on the basis that they contained information
about certain companies that may be of benefit to their
competitors.

Text of the decision can be viewed at: <http://www.austlii.edu.au/au/cases/cth/federal_ct/2003/994.html>.

Peter
Kidd is a Senior Executive Lawyer specialising in government
procurement and associated probity and process
issues. In particular, he has advised on confidentiality
related issues as they arise in the context of tendering
and general market testing processes.

Leah Wagg is a Graduate
Lawyer who has experience in government tender processes
including drafting RFTs and contracts, participating in
tender evaluation panels and reviewing tender evaluation
reports. Since joining AGS's Commercial Group in
Canberra, Leah has also worked on a range of property law
and other commercial matters.

AGS contacts

AGS has a dedicated team of lawyers with very
specialised knowledge of every aspect of government procurement,
whether it be in the area of substantive contract drafting,
risk management, indemnities and insurance or legal
process and strategy considerations. We also have a network
of
lawyers who specialise in resolution of commercial
disputes involving government agencies. For further information
on the articles in this issue please contact the authors
or any of the lawyers listed below:

National

John Scala

03 9242 1321

Canberra

Linda Richardson
John Snell

02 6253 7207
02 6253 7025

Sydney

John Berg
Simon Konecny

02 9581 7624
02 9581 7585

Melbourne

Paul Lang
Kenneth Eagle
Lynette Lenaz

03 9242 1322
03 9242 1290
03 9242 1358

Brisbane

Robert Claybourn

07 3360 5767

Perth

Lee-Sai Choo

08 9268 1137

Adelaide

Vesna Vuksan

08 8205 4512

Hobart

Peter Bowen

03 6220 5474

Darwin

Ashley Heath

08 8943 1444

ISSN 1443-9549 (Print)
ISSN 2204-6550 (Online)

The material in these notes is provided
to AGS clients for general information only and should
not be relied upon for the purpose of a particular
matter. Please contact AGS before any action or decision
is taken on the basis of any of the material in these
notes.

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notes index