In Blacktown City Council v Allen Jack + Cottier Architects Pty Limited (No 3); Blacktown City Council v Statewide Civil Pty Ltd (No 3) [2026] NSWSC 368, Peden J varied interim suppression orders and required disclosure of the Council's arbitration expert reports to parties outside the arbitration.
Case background
Statewide constructed tennis courts for the Council which were designed by AJC. As a result of defects in the courts, the Council sued Statewide and AJC. AJC cross claimed against its subcontractor, engineering designer, ACOR. The proceedings against Statewide were referred to arbitration under the Commercial Arbitration Act. In the arbitration, Council sought demolition and reconstruction of the complex at a cost of $5m. The arbitrator found the damage was caused by Statewide's defective construction and found that an alternative method of remediation he proposed, and not raised by the parties, was appropriate to bring the works into line with the design. Statewide was liable for $835k of remediation work. Council sought to enforce the arbitral award. Statewide resisted on the basis it had been denied procedural fairness concerning the arbitrator's proposed remediation. Bell CJ disagreed with Statewide and also made an interim suppression order in respect of certain documents used in the arbitration.
The Application
AJC brought an application for production of the documents subject to the suppression order, in particular expert evidence of the Council, as a person with "sufficient interest" in the documents in circumstances where the Council seeks to rely on evidence from the experts to answer the same central questions about whether the defects are due to design or construction, the appropriate rectification method and quantum. Council resisted the application on the basis the documents were confidential information under the Suppression Act and both AJC and ACOR were strangers to the arbitration.
Outcome
Her Honour considered the power to vary interim suppression orders. The private nature of an arbitration hearing does not provide an absolute protection to documents and information provided during the proceedings. There may be circumstances where it may be appropriate to depart from confidentiality. The Court must be satisfied that the public interest in preserving confidentiality is outweighed by other considerations which make it desirable for the information to be disclosed, and disclosure is no more than is reasonable for that purpose. Any order for disclosure is discretionary and must serve the overriding purpose of s 56 of the CPA.Her Honour ordered disclosure of the expert reports. The Council relies on the same experts in the court proceedings as the arbitral proceedings. While the claims are framed different, they concern the same underlying dispute. Her Honour did not consider AJC or ACOR "strangers" to the arbitration in a typical sense. The claims are not totally disparate.