Sky Channel Pty Limited v Austar Entertainment Pty Limited & Thoroughvision Pty Limited [2005] NSWSC 853

Sky Channel Pty Limited v Austar Entertainment Pty Limited & Thoroughvision Pty Limited [2005] NSWSC 853

The monetary amounts in clause 12 remained protected because disclosure to Sky, a trade rival, would place TVN at a significant commercial disadvantage. However, clauses 14.2-14.4 and clause 18 were central to issues to be litigated, and the administration of justice required Sky to be able to obtain legal advice and give informed instructions before forthcoming procedural steps. The confidentiality regime was therefore varied in part, with disclosure confined to specified persons subject to express confidentiality and use undertakings.

Jurisdiction
Australia
Judgment Date
25 August 2005
Procedural Posture
Equity Division Commercial List Proceeding Concerning Confidentiality Orders / Application to Discharge or Vary Confidentiality Regime Following Interlocutory Hearing
Outcome
Confidentiality order lifted in part.
Legal Topics
['confidentiality Regime' 'discovery and Inspection' 'trade Rivals' 'commercially Confidential Information' 'access to Documents to Obtain Legal Advice']
['civil Procedure' 'equity' 'commercial Litigation'] ['confidentiality Regime' 'discovery and Inspection' 'trade Rivals' 'commercially Confidential Information' 'access to Documents to Obtain Legal Advice']

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Procedural Posture

Equity Division Commercial List Proceeding Concerning Confidentiality Orders / Application to Discharge or Vary Confidentiality Regime Following Interlocutory Hearing

Legal Issues

  1. 1 ['Whether the confidentiality regime imposed in relation to the agreement dated 3 August 2005 between the defendants should be discharged altogether or varied.' 'Whether the monetary amounts in clause 12 of the agreement should remain protected as commercially sensitive information.' 'Whether clauses 14.2-14.4 and clause 18 of the agreement should be disclosed to selected Sky personnel or in-house counsel for the purpose of obtaining and giving instructions to external solicitors and counsel.']

Ratio Decidendi

The monetary amounts in clause 12 remained protected because disclosure to Sky, a trade rival, would place TVN at a significant commercial disadvantage. However, clauses 14.2-14.4 and clause 18 were central to issues to be litigated, and the administration of justice required Sky to be able to obtain legal advice and give informed instructions before forthcoming procedural steps. The confidentiality regime was therefore varied in part, with disclosure confined to specified persons subject to express confidentiality and use undertakings.

Court Disposition

Confidentiality order lifted in part.

Orders

  • ['No variation was made to the existing confidentiality regime in relation to the monetary amounts set out in clause 12 of the agreement.' "The confidentiality regime was varied to permit disclosure of clauses 14.2-14.4 and clause 18 to Mr Caillard, the chief executive of Sky, subject to an express undertaking to...