Blacktown City Council v Allen Jack + Cottier Architects Pty Limited (No 3); Blacktown City Council v Statewide Civil Pty Ltd (No 3)

1. [1]

   These proceedings relate to a long-standing dispute concerning defects in tennis courts at a complex owned by the plaintiff, Blacktown City Council (Council). Council sued designer, Allen Jack + Cottier Architects Pty Limited (AJC) and builder, Statewide Civil Pty Ltd (Statewide). AJC has cross-claimed against its subcontractor, engineering designer ACOR Consultants Pty Ltd (ACOR), seeking an indemnity for any liability to Council.

2. [2]

   The proceedings against Statewide for defective construction of the tennis court were stayed and referred to arbitration pursuant to s 8 Commercial Arbitration Act 2010 (NSW) (Arbitration Act).

3. [3]

   In the arbitration, Council sought complete demolition and reconstruction of the complex at a cost of over $5 million: Blacktown City Council v Statewide Civil Pty Ltd [2026] NSWSC 176 at [8] (Bell CJ) (10 March 2026) (Blacktown). Statewide’s position was that it was not liable: any defect was caused by design defects, Council’s claimed remedy was not reasonable and therefore no damages ought to be awarded. During the arbitration, the arbitrator, who was an engineer, proposed an alternative method of remediation, which had not been raised by the parties. The arbitrator allowed the parties to prepare further expert evidence and make submissions about his suggested remediation method.

4. [4]

   The arbitrator ultimately found that the damage to the complex was caused by Statewide’s defective construction, and that his suggested remediation process was appropriate to bring the works into line with the design, rather than complete demolition and replacement: see Blacktown at [30]-[32]. The arbitrator determined Statewide was liable to pay the sum of $835,854 for that remediation work.

5. [5]

   Council brought proceedings seeking orders enforcing the award and monetary judgment (see Supreme Court proceeding 2025/00346343). Statewide resisted enforcement on the basis that the arbitral award was tainted by a denial of procedural fairness concerning the arbitrator’s alternative proposed remediation process. Bell CJ found there was no denial of procedural fairness, including because Statewide was given an opportunity to oppose the arbitrator’s proposed alternative remediation method and to adduce or challenge further evidence, and because the arbitrator “expose[d]” his “thought or reasoning” in raising the alternative remediation method: Blacktown at [45]-[51]. Bell CJ enforced the award pursuant to s 35(1) Arbitration Act: Blacktown at [62(1)].

6. [6]

   Bell CJ also made an interim suppression order, “subject to further order”, under s 10(1) Court Suppression and Non-publication Orders Act 2010 (NSW) (Suppression Act) in respect of the certain documents used in the arbitration: Blacktown at [63(4)-(5)]. The Chief Justice also stated in Blacktown City Council v Statewide Civil Pty Ltd (No 2) [2026] NSWSC 375 (15 April 2026) at [22]:

7. [7]

   This judgment concerns an application by AJC for the production of the documents subject to that interim suppression order. ACOR also sought the documents as a person with “sufficient interest” in the documents covered by the interim suppression order.

8. [8]

   In particular, AJC and ACOR sought disclosure of expert evidence of Professor Mark Bradford, structural engineer, and Mr Simon Lowe, quantity surveyor, who both gave evidence for Council in the arbitration. These documents are sought in circumstances where Council seeks to rely on evidence from those experts in these proceedings to answer the same central questions about whether the defects are attributable to design or construction defects, and the appropriate rectification and quantum.

9. [9]

   Statewide is agnostic to the application and was excused from attendance at the hearing.

10. [10]

    Council resisted AJC and ACOR having access to the documents, primarily on the basis that the documents are classed as “confidential information” under s 2(1) Suppression Act, and AJC and ACOR are “strangers” to the arbitration.

11. [11]

    Two issues arise for determination:

    1. (1)

       What is the power to vary the interim suppression orders to allow disclosure of documents used in the arbitration?

    2. (2)

       Should disclosure of any documents be granted?

Scope and power to vary interim suppression orders

1. [12]

   AJC relied on s 13(1) Suppression Act to seek disclosure of documents as a person “who, in the court’s opinion, has a sufficient interest in the question of whether a suppression order… should have been made or continue to operate”: s 13(2)(e) Suppression Act. Section 13(3) provides the Court with express powers to confirm, vary or revoke an order made under the Suppression Act, including interim orders made under s 10. However, s 13 does not prescribe criteria relevant to a review of a suppression order.

2. [13]

   Section 8 provides that a Court may make a suppression order, including if an order is necessary to prevent prejudice to the proper administration of justice (sub-s (a)), and if it is otherwise necessary in the public interest for the order to be made and that that public interest “significantly outweighs the public interest in open justice” (sub-s (e)). ACOR submitted that these grounds also apply to the continued appropriateness of a previously made suppression order.

3. [14]

   There is no doubt that, as a starting point, courts are prepared to enforce confidentiality of arbitrations, including the documents disclosed during those arbitrations: see eg EBJ21 v EB021 [2021] FCA 1406 at [61] (Stewart J) (EBJ21); Rinehart v Welker (2011) 93 NSWLR 311 at [41]-[47] (Basten JA) (Rinehart). The private and confidential nature of arbitration proceedings may be a sufficient reason for suppression orders: see eg Hancock v Hancock Prospecting Pty Ltd [2022] NSWSC 724 at [62] (Ball J) (Hancock). However, the private nature of an arbitration hearing does not provide an absolute protection to documents and information provided during those proceedings: see eg EBJ21 at [60]; Wright Prospecting Pty Ltd v Hancock Prospecting Pty Ltd (No 21) [2023] WASC 169 at [164]-[165] (Smith J) (citations omitted).

4. [15]

   The Arbitration Act recognises that there may be circumstances where it may be appropriate to depart from such confidentiality. For example, s 27F(8) Arbitration Act provides that confidential material regarding arbitration proceedings may be disclosed by a party or an arbitral tribunal in accordance with an order made by a Court.

5. [16]

   In allowing disclosure, the Court must be satisfied that the public interest in “preserving the confidentiality of arbitral proceedings” is outweighed by other considerations which make it desirable for the information to be disclosed and that any disclosure is “no more than is reasonable for that purpose”: s 27I(1) Arbitration Act; see also Hancock at [62].

6. [17]

   Any order for disclosure is discretionary and must serve the overriding purpose under s 56 Civil Procedure Act 2005 (NSW) (CPA); the “dictates of justice and fairness” in a particular case should also be considered: see eg Gollin Holdings Limited v Adcock [1981] 1 NSWLR 691 at 696 (Rogers J).

7. [18]

   In Rinehart at [55], Basten JA noted that to supress information concerning a determination to remove a trustee would “undermine, rather than ensure, public confidence in the administration of justice”. (I note in passing that AJC's counsel did not have regard to Practice Note SC Gen 20, which provides that authorised reports should be noted, “as far as possible”, in written submissions and Lists of Authorities).

8. [19]

   However, as stated by Croft J in Downer Utilities Australia Pty Ltd v Murra Warra Asset Co Pty Ltd [2026] VSC 48 at [109], it would be contradictory if Parliament intended to honour the parties’ intention to privatise their disputes (as governed by the Victorian equivalent of the Arbitration Act) whilst simultaneously permitting a “backdoor” loophole by allowing disclosure of confidential information through court proceedings emanating from the arbitration.

9. [20]

   Further, it is generally accepted that a judgment determining the enforceability of an arbitral award would not be kept confidential, because there is a greater public interest in understanding the reasons for the enforcement or otherwise: see eg Hancock at [63]; Blacktown at [64]-[66]; see also EBJ21 at [62].

Ought the disclosure of documents be ordered?

1. [21]

   For the following reasons, I find that the weighing of public interest of open justice favours AJC and ACOR having access to the expert evidence of Professor Bradford, Mr Lowe and Mr Hoare. Counsel for AJC properly conceded that his client’s alternative position was that it only required that expert material, and the award, rather than all the documents identified in the application. I decline to vary the interim suppression orders regarding the remainder of the documents sought.

2. [22]

   Council submitted that the claims against AJC here and Statewide in the arbitration proceedings are different and therefore the documents ought to remain suppressed:

   1. (1)

      Council sues AJC in contract and tort on a “fail[ure] to design and prepare” certain drawings “to the standard of skill, care and diligence expected”.

   2. (2)

      Council claimed that Statewide did not carry out and complete work under the construction contract nor use “suitable new materials and proper and tradesman-like workmanship”, and failed to construct joints in accordance with AJC’s design.

3. [23]

   However, in these proceedings Council seeks to rely on the same experts as in the arbitration proceedings. While the way the claims are framed may be different, both proceedings concern the same underlying dispute about damage to the tennis courts and appropriate remediation: see also Blacktown at [66].

4. [24]

   From Bell CJ’s judgment identifying parts of the arbitral award, it appears that Council’s case in the arbitration was that the defects to the tennis courts were entirely construction defects, not design defects, and needed to be completely demolished and rebuilt. Council’s case in these proceedings is that the defects were caused by design defects and that the tennis courts need to be completely demolished and rebuilt.

5. [25]

   Further, Bell CJ recorded the arbitrator’s findings that it was not necessary to demolish and rebuild the tennis courts to rectify the construction defects: Blacktown at [32].

6. [26]

   In reaching that conclusion, the arbitrator had regard to Professor Bradford’s opinion that demolition and replacement was not necessary, and that ultimately, the defects were construction defects. The arbitrator recorded that Council’s only evidence in support of total demolition and rebuilding came from quantity surveyor, Mr Lowe. The arbitrator also noted that Mr Lowe “was not a structural engineer and therefore, did not seem to be qualified to express opinions about structural issues including likely repair methods”: Blacktown at [29].

7. [27]

   Of note, Professor Bradford’s February 2023 report, served in these proceedings, opined that the damage to the tennis courts was caused by multiple design defects in the concrete slab; AJC submitted that this appears contrary to the opinion he expressed during the arbitration that the defects were construction defects. ACOR further submitted that in Professor Bradford’s reports it has seen, he does not canvass whether the tennis courts were constructed in accordance with the design. This distinction belies the dispute in these proceedings.

8. [28]

   I do not consider that AJC and ACOR are “strangers” to the arbitration in a typical sense. Despite the substantial overlap in issues and the obvious relevance of the expert evidence in these proceedings, Council did not join AJC and ACOR to the application for suppression orders: see eg Walker Corporation Pty Ltd v White City Tennis Club Ltd (2010) 241 CLR 1 at [131] (French CJ, Gummow, Hayne, Heydon and Kiefel JJ).

9. [29]

   While I accept that any findings by the arbitrator cannot be deployed for Council’s claims against AJC (see eg s 91 Evidence Act 1995 (NSW)), I reject Council’s submission that the claims against AJC and Statewide are totally disparate; instead there is a singular type of loss, being defective tennis courts, irrespective of who is liable for the defects. The rule against “actual double recovery” is not relevant at this stage in the proceedings: see eg Tomlinson v Ramsey Food Processing Pty Ltd (2015) 256 CLR 507 at [27] (Murphy, Aickin and Brennan JJ) (Tomlinson) (I note again in passing that counsel did not have regard to Practice Note SC Gen 20 regarding the use of authorised reports in written submissions, “as far as possible”). The same is true of the apportionment of liability.

10. [30]

    Ultimately, where the issue in these proceedings is the determination of any liability of AJC (and ACOR as cross-defendant), and Council seeks to rely on the same experts in these proceedings as in the arbitration, the “dictates of justice” and overriding purpose of the CPA are not served if the evidence of Professor Bradford and Mr Lowe are not disclosed. I am satisfied that there are reasonable grounds to think that relevant information will be in the expert evidence, which is likely to assist in fact finding and which goes to the real issues in dispute in these proceedings: see eg Associated Dominions Assurance Society Pty Ltd v John Fairfax & Sons Pty Ltd (1952) 72 WN (NSW) 250 at 254 (Brereton J); Rinehart at [48]; see also Practice Note SC EQ 11 at [5].

11. [31]

    Without access to Council’s expert evidence deployed at the arbitration, AJC and ACOR will be limited in cross-examining those experts on their alternative evidence given in the arbitration. However, the purpose for which Professor Bradford’s expert evidence is sought does not “relat[e] solely to the credibility of a witness”: r 21.1(2) Uniform Civil Procedure Rules 2005 (NSW), nor did AJC submit that this is the only purpose of disclosure. Disclosure will not be refused merely because credibility may be relevant.

12. [32]

    I consider that these circumstances make it desirable in the public interest of open justice to require disclosure of the expert evidence of Professor Bradford and Mr Lowe.

13. [33]

    AJC also sought the evidence of Mr Tim Hoare, Statewide’s structural engineer expert, including his joint report with Professor Bradford, where the experts agreed that the defects could be rectified without the need for demolition and replacement of the tennis court slabs: see Blacktown at [21]-[22], [29]. This evidence again goes to the real issues in dispute. Council did not make any specific submissions as to why this joint report ought not be disclosed; Statewide was also agnostic to disclosure of the documents AJC seeks, including Mr Hoare’s reports. I am satisfied that the disclosure of Mr Hoare’s reports, including his contributions to the joint report with Professor Bradford, is justified in the public interests of open justice.

14. [34]

    In reaching these conclusions, I reject AJC’s submission that Council has made some form of election or is approbating or reprobating, relying on Fried v National Australia Bank Ltd [2000] FCA 910 at [28]-[33] (Weinberg J). Council has not made any election between rights, neither has it acted inconsistently in its litigation against AJC.

15. [35]

    I also reject AJC’s submission that Council’s continuation of these proceedings against it would be an abuse of process if the documents were not produced: see eg Tomlinson at [25]. Instead, the relevant concern here is the interests of justice, which I have considered above.

16. [36]

    I also note that the documents will be protected by a Harman undertaking: Harman v Secretary of State for Home Department [1982] 1 AC 280.

17. [37]

    In closing submissions, AJC moved away from seeking further disclosure of Council’s and Statewide’s submissions, pleadings, affidavits, exhibits and other evidence inter alia related to the arbitration proceedings. I do not consider that the public interest in disclosing these documents has been justified, nor that it is in the interests of justice and fairness to do so.

18. [38]

    I accept that it is appropriate to order disclosure of the arbitrator’s award. While the reasons of and findings made by the arbitrator do not determine Council’s case against AJC, I accept that the award is relevant to the issues in dispute and that it is in the interests of justice to order disclosure of the award; the underlying concern about the tennis court complex in the arbitration proceedings is the same as in these proceedings, and the arbitral award was ultimately enforced by Bell CJ.

Appropriate orders

1. [39]

   I make the following orders:

   1. (1)

      The interim suppression orders made by Bell CJ on 10 March 2026 in proceedings 2025/00346343 be varied concerning the documents identified in order 2.

   2. (2)

      The plaintiff is to produce to the first defendant and cross-defendant within 2 weeks of the date of these orders:

   3. (3)

      Plaintiff/respondent pay the first defendant/applicant’s costs of the motion as agreed or assessed.

   4. (4)

      Should any party seek a costs order alternative to order 3:

   5. (5)

      The 2021/00039903 proceedings are listed for directions on 1 May 2026.