Australian courts operate under a principle of open justice. However, open justice is not an absolute concept, and, on occasion, it must be balanced with other considerations, including commercial confidentiality.
During patent-related court proceedings, the first stage at which issues concerning confidentiality are likely to arise is during either disclosure processes (e.g., discovery) or the service of evidence. At these stages, the confidentiality issues that arise are more likely to concern the disclosure of confidential information to the opposing party (who is often a commercial competitor) rather than to the public at large. Generally, a party that receives documents that have been served for the purposes of litigation will be under an obligation to use those documents only for the purposes of the proceedings in respect of which the documents were served (i.e., not for the purposes of other proceedings or for other commercial or noncommercial purposes).98
Beyond that general obligation, it is common for parties serving documents containing confidential information to require the party receiving the documents to give an undertaking restricting the use and disclosure of those documents. The undertakings are given either inter partes, to the court, or to both. The form of such undertakings is often resolved between the parties without the intervention of the court; however, the court may become involved if a dispute about confidentiality arises that the parties are unable to resolve between themselves. For example, there may be a dispute about whether access to documents should be restricted to external legal representatives or whether it is necessary that the party or its employees also have access to the documents. In such circumstances, the court balances the competing considerations of the risk of inadvertent or accidental disclosure against the benefits of a party having access to relevant information so that appropriate advice can be given to the client and informed instructions may be received from the client.99
In accordance with the principle of open justice, hearings of court proceedings in Australia are conducted in public, and evidence adduced in proceedings at a hearing becomes public. Any agreement between the parties to keep information confidential will not keep evidence given in open court from becoming public. Any party wishing to rely on evidence at trial while keeping that evidence confidential will need to seek suppression or nonpublication orders from the court. Such orders may also be sought from the court at earlier stages of the proceedings if the parties are unable to agree on a confidentiality regime between themselves.
In the Federal Court of Australia, the power to make these orders is provided by Section 37AF of the Federal Court of Australia Act 1976 (Cth). The most relevant ground for making such orders is that the order is necessary to prevent prejudice to the proper administration of justice.100 In deciding whether to make an order, the Court must take into account that a primary objective of the administration of justice is to safeguard the public interest in open justice. Commercial disadvantage that may arise from the disclosure of confidential information may be a basis for the making of a suppression or nonpublication order because the occasioning of such disadvantage may prejudice the proper administration of justice.101 Such orders are not made in perpetuity, and the Court is to ensure that the order operates for no longer than is reasonably necessary to achieve the purpose for which it is made.102 Interim confidentiality orders may also be made under Section 37AI, pending the Court’s determination of whether an order should be made under Section 37AF.