(a) Litigation between the ACCC and Allphones had commenced (Proceedings NSD 408 and NSD 1567 of 2008);
(b) Proceedings NSD 1567 of 2008 specifically concerned the way in which Allphones was dealing with its franchisees in relation to the negotiations and mediation contemplated by the Notice of Dispute;
(c) The ACCC had sought interlocutory relief on 3 October 2008 and on 9 October 2008 and that application had been resolved by Allphones giving appropriate undertakings to the Court. Those undertakings obliged Allphones to keep the ACCC informed of the progress of Allphones' negotiations with its franchisees;
(d) The two firms of solicitors to whom the ACCC's Written Submission had been sent had a very real and legitimate interest in knowing what the ACCC considered to be the true quantum of the various rebates, bonuses and payments which Allphones was seeking to retain through the mechanisms initiated by its Notice of Dispute;
(e) The relevant official sent the document only after advice was sought and obtained from the solicitors who were representing the ACCC that he or she might do so; and
(f) The relevant official did so in his or her capacity as a staff member of the ACCC genuinely and reasonably believing that it was legitimate, lawful and appropriate for him or her to do so in the circumstances as part of his or her duties and functions as such a staff member.
68 Section 155 empowers the ACCC to collect information and documents under compulsion for the purposes of its investigative function. In order properly and adequately to investigate a suspected contravention of the Act, it must be able to use information and documents which it gathers in this way. The legitimate use of such information and documents may involve disclosing the information or the contents of the documents to third persons. It is this legitimate use of protected information which is intended to be covered by s 155AAA(1)(a).
69 There is sufficient evidentiary material before me to enable me to be satisfied that, when the relevant ACCC official sent the ACCC's Written Submission to Birch Partners and to Chew + Matthews, he or she was "… performing duties or functions as a Commission official". He or she was not acting on a frolic of his or her own. He or she almost certainly believed that the persons to whom the document was sent had a right to inspect it at the Registry. The persons to whom it was sent had a very real interest in the contents of the document and in both sets of proceedings brought by the ACCC against Allphones.
70 This is a case where it is difficult to see the evidentiary matrix altering much if at all were the substantive issue to be litigated. The position is analogous to the circumstances under discussion in the passages from John Fairfax & Sons Ltd v Cojuangco 165 CLR 346 to which I have referred at [55] above.
71 Further, I think that the ACCC's Written Submission is a "written submission" within the meaning of O 46 r 6(2)(g) of the Federal Court Rules and that, for that reason, it was already "publicly available" within the meaning of s 155AAA(16) of the Act by 14 October 2008.
72 Allphones submitted that the document was not a written submission because:
(a) it had not been directed to be filed;
(b) it was not the subject of any leave allowing it to be filed;
(c) it was not, in fact, filed; and
(d) it was not utilised in open Court or referred to in open Court.
73 As I have already noted, the document was stamped as "Filed in Chambers" on 9 October 2008. In that sense, it was filed. It was thereby made part of the Court's file and part of the records of the Court.
74 The points raised by Allphones and noted in [72] above lack merit. The real question is: In substance, is the ACCC's Written Submission a written submission? I think the answer to that question is clearly "yes". It purports to be a written submission. It contains submissions and arguments of fact and law directed to the interlocutory application with which it deals. It is easily identifiable as a written record of submissions. It is signed by both Senior and Junior Counsel who were then appearing for the ACCC.
75 The character of a document such as a written submission is to be judged as a matter of substance. It does not depend on any of the matters relied upon by Allphones noted at [72] above.
76 It was submitted on behalf of the ACCC that there was no sense in the proposition advanced on behalf of Allphones to the effect that the document could not be a "written submission" within the meaning of O 46 r 6(2)(g) of the Federal Court Rules unless it was referred to in open Court. It was said that that rule could only be given practical operation if Registry staff can determine quickly by looking at the document whether it is a written submission. To require that persons called upon to decide that question also verify whether the document has been referred to in open Court is unworkable.
77 In the end, the substantive questions are:
(a) Is the document, of its nature, a written submission?; and
(b) If so, has it been accepted by the Court as part of the Court's official record (whether that be by filing, lodgement or some other means)?
78 In the present case, the ACCC's Written Submission was accepted by the Court on 9 October 2008. It so happens that, technically, it was also "filed". But that is not the critical factor. The document was received and retained by the Court. It was not returned or destroyed. It was placed in the Court file (as it should have been). By the end of the day on 9 October 2008, it was a "written submission" within the meaning of O 46 r 6(2)(g) of the Federal Court Rules.
79 Once the document became part of the Court file, it was open to any person to inspect it. This remained the position until 28 October 2008 when I restricted access to it. For these reasons, the document was publicly available as at 14 October 2008 when it was sent to Birch Partners and to Chew + Matthews.
80 Allphones' case based upon s 155AAA will almost certainly fail. That case is speculative.
81 Even if Allphones could establish a contravention of s 155AAA(1) of the Act by the relevant official in the circumstances of this case, there are significant obstacles standing in the way of Allphones should it seek to bring an action to vindicate its alleged private rights based upon the official's public duty embodied in s 155AAA of the Act. A great deal of argument was addressed to this question. However, because of the conclusion which I have reached as to Allphones' prospects of proving a contravention of s 155AAA(1), I do not need to decide whether such a private right in the hands of a citizen (Allphones) is available in the present case.
82 In order for such a private right to exist, the relevant legislation must be found to reflect a legislative intention to create a private right for breach (Byrne v Australian Airlines Ltd (1995) 185 CLR 410 at 424-425). The question is one of construction of the statute. As submitted by Allphones, it is the statute that creates the right and the common law that supplies the remedy (Darling Island Stevedoring and Lighterage Co Ltd v Long (1957) 97 CLR 36 at 52).
83 It is by no means clear or beyond argument that the Act creates a private right in Allphones to sue for damages and other relief in the event that an ACCC official discloses information in breach of s 155AAA. There is much to be said for the view that no such right is created (see, in particular, the observations of McHugh and Gummow JJ in Byrne 185 CLR 410 at 458).
84 As to the question posed in [56(b)] above (the cause of action based upon the breach of the equitable duty of confidence), the following matters are relevant:
(a) The classic definition of the equitable duty of confidence is found in Lord Ashburton v Pape [1913] 2 Ch 469 at 475. At that part of his reasons, Swinfen Eady LJ said:
The principle upon which the Court of Chancery has acted for many years has been to restrain the publication of confidential information improperly or surreptitiously obtained or of information imparted in confidence which ought not to be divulged. Injunctions have been granted to give effectual relief, that is not only to restrain the disclosure of confidential information, but to prevent copies being made of any record of that information, and, if copies have already been made, to restrain them from being further copied, and to restrain persons into whose possession that confidential information has come from themselves in turn divulging or propagating it.
These observations were cited with evident approval by Mason J in Commonwealth v John Fairfax & Sons Ltd (1980) 147 CLR 39 at 50;
(b) In the present case, the information was not improperly or surreptitiously obtained. It is contended that it was imparted in confidence in circumstances where it ought not to be divulged;
(c) The question of whether an equitable duty arises in the present case is not straightforward. The relevant information was contained in documents which were produced pursuant to compulsory powers invoked by the ACCC and in circumstances where it is at least arguable that the only source of any duty of confidence is s 155AAA itself. Although the use of documents and information obtained compulsorily in this way is constrained by s 155AAA and perhaps may be constrained by other general law principles, it is difficult to see how a party in the position of Allphones could sensibly expect that the information would be kept confidential and not disclosed even for legitimate purposes associated with the due performance by the ACCC of its statutory functions. It may be thought that this is particularly so in circumstances where Allphones made no express claim for confidentiality when the documents were produced. In Cadbury Schweppes Pty Ltd v Amcor Limited (2008) 246 ALR 137, [2008] ATPR 42-218, Gordon J, in the context of considering claims that documents ought not to be disclosed on public interest immunity grounds, said (at [30]):
The theoretical merit of the ACCC's confidentiality contentions is even more deficient. A cartel claim, by definition, involves collusion between two or more actors. In the same way that it is both inevitable and self-evident that the statements of a cooperating criminal conspirator will be used against (ie, disclosed to) the non-cooperating conspirators, it must be taken for granted that a cartel participant contemplating a confession to the authorities knows, or should know, that his statements will be used by the authorities to prosecute the other party or parties. As such, the ACCC's claim that a party like Amcor can have a reasonable expectation of confidentiality with respect to statements made to investigators is devoid of substance. And without such a reasonable expectation, the ACCC's contention that non-disclosure of the documents is required to protect the public interest cannot stand.
and
(d) The definition of protected information seems to me to contemplate a dichotomy between information that is given (voluntarily) in confidence to the ACCC, on the one hand, and information that was obtained by the ACCC (compulsorily) pursuant to a s 155 Notice, on the other hand. In the latter case, the section seems to contemplate that there is no room for any equitable duty of confidence to arise.
85 As presently advised, I doubt that any equitable duty of confidence was imposed upon the ACCC when Allphones produced documents to it pursuant to the s 155 Notice. The relevant ACCC official could only be liable if such a duty were imposed upon the ACCC. No claim of confidentiality was made at the time when the documents were produced. The circumstances of their production are not such as to suggest that some duty of confidence should be imposed. The existence of such a duty is inconsistent with the statutory obligation imposed upon the ACCC to investigate and litigate, where appropriate, contraventions of the Act. It seems to me that the Parliament recognised the need for some protection of information and documents furnished to the ACCC pursuant to s 155 of the Act when it enacted s 155AAA. However, the protections to be found in s 155AAA are limited and are intended not to restrict the ACCC unduly or inappropriately in the way that it goes about legitimately performing its statutory duties and functions. I think that the only protection for such information is that which is afforded by s 155AAA.
86 For the above reasons, in my judgment, the foreshadowed proceedings by Allphones are next to hopeless. They are speculative in the sense in which that expression is used in the authorities. The cause of action for breach of statutory duty is virtually hopeless and the cause of action based upon some equitable duty of confidence is in the same category.
87 Even if Allphones could overcome the difficulties which I have discussed at [67]-[86] above, the Court would be very unlikely to make a declaration or grant any injunctive relief. Since 28 October 2008, orders preventing inspection in the Registry of the ACCC's Written Submission have been in place. Further, there is no present threat by the ACCC to make further disclosure of the contents of the document. A declaration would serve no useful purpose.
88 As far as damages are concerned, it seems to me that the foreshadowed claims are entirely speculative. Allphones has had ample opportunity since 15 October 2008 to put its case to its franchisees and to the ACCC as to the correct position concerning the disputed rebates, commissions and bonuses. If its advocacy is sound and based upon accurate information, it should be able to persuade its protagonists of the correctness of its position. If it cannot correct the so-called misinformation, that will most likely be because the franchisees and the ACCC do not accept the correctness of the Allphones position. The lost opportunity to take advantage of or mislead its franchisees is not something for which the law will provide recompense. For these reasons, I am of the view that Allphones would almost certainly be unable to prove any quantifiable loss in the proceedings which it has foreshadowed.
89 The prospects of Allphones succeeding in either or both of the foreshadowed causes of action against the ACCC official who sent the ACCC's submission to Birch Partners and Chew + Matthews is an important and material factor to be considered in the exercise of the Court's discretion whether or not to order the preliminary discovery sought by Allphones.
90 In any event, I do not think that the interests of justice would be served by the making of the order which Allphones seeks.
91 There is no suggestion in the present proceedings that the relevant ACCC official was motivated by malice or otherwise took the action which he or she did other than in the honest belief that it was an appropriate thing to do. The litigation between the ACCC and Allphones is substantial litigation. Allphones has a great deal at stake both in terms of money and reputation. Furthermore, as I have mentioned at [27] above, Allphones is attempting to resolve its differences with its franchisees through a process of negotiation and mediation. That process is especially directed to the question of whether or not the franchisees are entitled to a larger slice of the rebates and bonuses pie. A consideration of the interests of justice involves more than the question of whether or not the order is necessary to provide to the applicant an effective remedy in respect of the actionable wrong of which he or she complains. The Court should be slow to allow its processes to be used as the means by which one party seeks to gain a strategic advantage over another unless that result is a necessary incident of the legitimate deployment of those processes. In the present case, Allphones has not persuaded me that the claims which it says it wishes to make warrant the intervention of the Court by the making of a preliminary discovery order.
92 In my judgment, in the end, if there is any actionable wrong involved in the present case which might conceivably give rise to a remedy, the most effective remedy will be a remedy against the ACCC itself. It is not necessary for Allphones to achieve that which it legitimately desires to achieve to proceed against an individual ACCC official.
93 For these reasons, I propose to dismiss the application with costs.
I certify that the preceding ninety-three (93) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Foster.