This case is a sharp reminder that confidentiality clauses do not automatically control what happens in court. The Cbus contract contained commercially sensitive sale terms, and the secured lenders had a real concern that disclosure could affect the market for the remaining 50 percent interest. The Court accepted there was enough evidence to protect the contract from wider publication.
But the Court drew a line when the lenders tried to keep most plaintiffs themselves from seeing the contract. Those plaintiffs were parties to urgent litigation about the DOCA, and their lawyers said they needed client instructions about the contract terms. The Court was not prepared to treat most of the plaintiffs as potential market participants without evidence.
One plaintiff, Pro-Invest, was treated differently because there was evidence it had previously sought to acquire the relevant interest and could be a market participant.
For businesses, the lesson is practical. If a confidential contract may become evidence, think about litigation access early. A court can protect trade-sensitive information, but the order has to be targeted. Evidence should explain the specific commercial harm, who should be restricted, why ordinary implied undertakings are not enough and how the other side can still get legal advice and give instructions.