Australian Competition and Consumer Commission v Cement Australia Pty Ltd [2010] FCA 997 | Case summary

REASONS FOR JUDGMENT 1 This matter was originally listed for trial before Dowsett J earlier this year. For reasons which his Honour gave at the time (Australian Competition and Consumer Commission v Cement Australia Pty Ltd [2010] FCA 294), it proved necessary to adjourn the trial of the proceeding. Cement Australia Pty Ltd (Cement Australia) and the other respondents, sought unsuccessfully to challenge, on appeal, the order which his Honour made in respect of the amendment of pleadings, which carried with it the need for the adjournment of the trial (Cement Australia Pty Ltd v Australian Competition and Consumer Commission [2010] FCAFC 101). The trial is now due to commence before Greenwood J on 27 September 2010. 2 A sequel to interlocutory orders which Greenwood J (as docket judge) made on 18 August 2010, is a difference between the parties in relation to para 8 of those orders, which provides that the Cement Australia parties provide the Australian Competition and Consumer Commission (Commission) with the documents comprising their tender bundle by 20 September 2010, with the question of whether it is appropriate to direct that the tender bundle of the Cement Australia parties be provided at an earlier date to be determined at the directions hearing today. 3 It transpired, in the course of proceedings today, that Greenwood J was not informed on 18 August 2010 that between that date and the date fixed for commencement of the trial, each of the junior counsel presently briefed for the Cement Australia parties proposed to take leave. The upshot of that is that, at present, one of the junior counsel is away on leave and will not return until 1 September 2010, and the other, who is also presently on leave, will not return until 6 September 2010. 4 It seems likely that these periods of leave were known to counsel who appeared on behalf of the Cement Australia parties on 18 August 2010. Those periods of leave were doubtless taken into account in providing for 20 September 2010 as the latest date for the provision of the Cement Australia parties' tender bundle. It is, though, unfortunate that this fact was not made known then to the Court, or for that matter, to the Commission. That may well have, as is often the case in human affairs, in relation to matters of communication, made it more ready for the Commission to formulate a proposed alternative date for the provision of the tender bundle, than that which the Commission came to choose in its draft minute of orders, namely, 3 September 2010. 5 The provision of advice in relation to a matter such as a tender bundle is classically the province of junior counsel in preparation for trial. I can therefore well understand the position put on behalf of the Cement Australia parties, that 3 September 2010 was not a feasible date for the provision of all of the tender bundle material. It seems to me, though, as indeed regard to the transcript of 18 August 2010 discloses that it seemed to Greenwood J also, that it ought to be possible to provide the tender bundle material in a staggered way nonetheless. I have, therefore, in formulating orders today, taken into account the dates upon which the Cement Australia parties' junior counsel will return, in providing for staggered provision of the Cement Australia parties' tender bundle material. 6 In so doing, it is not my expectation that the Cement Australia parties will utilise the provision for a supplementary bundle as a basis upon which to provide the majority of their tender bundle material. Rather, the adjective, "supplementary" is intended to mean what it says. 7 In making provision for 13 September 2010 for the provision of the proposed tender bundle material of the Cement Australia parties, I have also taken into account the history of this proceeding, including in that regard, the order made by Dowsett J for the amendment of pleadings and the absence of forensic success in respect of the interlocutory appeal in particular and, with that, the degree of notice that the Cement Australia parties have had of the issues that the Commission proposed to raise at trial. I regard that as a degree of notice of something approaching five to six months, notwithstanding that there has subsequently been a third further amended statement of claim delivered. 8 I move, then, to other matters of interlocutory controversy. It is desirable that these be dealt with now, given the proximity of the trial date. 9 The Cement Australia parties have given to the Commission a notice to produce dated 20 August 2010. That notice seeks the production of a very large and indeterminate number of documents referred to in the affidavits of Giuseppe Mario Panuccio, sworn 25 June 2010, and filed in the proceeding, and of Alexander Gustaaf, Bernard Van Der Staay, sworn on 20 June 2010, and filed in the proceeding. The notice in question does not appear to be on the court file but has been in copy form marked as Exhibit 1 on the interlocutory application. 10 The flavour of the notice may be gleaned from para 1, which is in these terms: All documents comprising, recording and/or referring to internal consideration by Main Roads in the period 1 January 2007 to 31 December 2009, to change the recommended minimum percentage of fly ash to be used in Main Roads concrete from 20% to 25%, including but not limited to any documents in relation to the study undertaken by Van Der Staay in 2009 on batching efficiency of a range of batch plants referred to in paragraph 23 of the Van Der Staay affidavit. 11 A similar type of request for production is evident in relation to Mr Panuccio's affidavit. 12 The Commission seeks to have that particular notice set aside, relying for that purpose on an affidavit from Ms Close of the Australian Government Solicitor, filed today by leave. Evident from that affidavit, and as confirmed by submissions made on behalf of the Commission, are three grounds of opposition to the notice to produce and thus the basis upon which it is sought to have it set aside. They are these: 1. that the notice seeks documents produced to the Cement Australia parties by way of third party discovery in these proceedings, copies of which the Commission has also obtained; 2. that it seeks documents obtained by the Commission in the course of taking the affidavits of Messrs Panuccio and Van Der Staay; and 3. that it seeks documents obtained by the Commission in the course of its investigation in to the conduct which is the subject matter of the substantive proceedings. 13 As to these categories, the Commission submits that the first comprises documents already held by the Cement Australia parties; the second comprises documents which would be the subject of client legal privilege on the part of the Commission, which is said not to have been waived; and the third category is said to comprise material that would require extensive review of the Commission's and the Australian Government Solicitor's files to ascertain and that this would require some four weeks work, at least. It is further submitted that discovery was provided in these proceedings as far back as October 2009. 14 That particular statement is made by Ms Close on the basis of an estimation, without being aware of the extent fully, and obviously without investigation of the extent, of the documents that would comprise the third category. 15 There was no difference between the parties as to the relevant principles involved. A convenient summary of these, albeit one cast by reference to a subpoena, is to be found in the judgment of Beaumont J in Trade Practices Commission v Arnotts Limited (1989) 88 ALR 90 at 103. His Honour there posed two questions, namely: (1) Does the material sought have an apparent relevance to the issues in the principal proceedings, ie, is adjectival, as distinct from substantive, relevance established? Does the subpoena have a legitimate forensic purpose to this extent? This involves a consideration of the matter from the standpoint of Arnotts. (2) Is the subpoena seriously and unfairly burdensome or prejudicial? This is to look at the matter from the point of view of Mattingly. For the purpose of understanding the passage quoted, it is necessary to state that Mattingly was the recipient of the subpoena in question and Arnotts was the party which had sought the issue of the same. 16 Also to be taken into account is an observation made by Tamberlin J in United Salvage v Louis Dreyfus Armateurs SNC [2006] FCA 50 at [7]. His Honour there made the observation, with which I respectfully agree, that a notice to produce differs in relation to a subpoena in the sense that one might apprehend that the party which receives the notice to produce has a greater awareness of the issues in the proceeding. To this extent, a more benign approach might be taken in relation to the application of the two criteria described by Beaumont J in the Arnotts case in relation to a subpoena, when one is considering a notice to produce. 17 It is convenient to assume in favour of the Cement Australia parties that there is adjectival relevance in that which is sought by the notice to produce. That may well be a very large assumption but it is not necessary to reflect upon how large because I am of the firm view that the notice, as cast in its present form, is oppressive. It seeks more than just a particular document referred to in an affidavit. Instead, what is sought, in effect, is the undertaking of an investigation on behalf of the Cement Australia parties for further documents as well as, perhaps, those directly referred to. 18 Further, it seems to me that the documents sought, insofar as it is possible to identify them discretely, provide necessary background, so the author of the affidavit thinks, to issues of rather more importance which then become, insofar as they relate to documents, the subject of exhibits to affidavit. That, of course, might be said to support the adjectival relevance argument which, as I have said, I have assumed in favour of the Cement Australia. 19 What remains, though, is a very broad request by notice, indeed. The oppression is particularly evident when one has regard to the time allowed for production. I have considered whether further time might cure that particular defect but the request is so broad and what lies within it so inappropriate in terms of request for inquiry that I regard the notice as irremediably bad. I therefore set it aside. 20 There is a question further as to the evidence of a Mr Maycock whom it is proposed to call in the case of the first to fifth respondents. Mr Maycock has not been disposed to provide those respondents with an affidavit of his evidence in chief. That has been the subject of correspondence between Mallesons who act on his behalf and Gilbert + Tobin who act on behalf of those respondents. 21 There is a practice whereby a person who is reluctant to provide an affidavit might be the subject of an application on the part of the person seeking the same for an order for his or her examination prior to trial. It is not uncommon in the case of a person who is reluctant to provide an affidavit when that particular procedure is made known for that person to have a change of disposition in relation to willingness to provide an affidavit. That particular procedure has not been availed of by the first to fifth respondents. 22 The Cement Australia parties have some understanding, so I was informed on their behalf, of what Mr Maycock is likely to say as a result of the responses given by him to an examination conducted on behalf of the Commission pursuant to s 155 of the Trade Practices Act 1974 (Cth) of him. I was also informed, though, that the first to fifth respondents may not wish to confine themselves in leading evidence from Mr Maycock to that which is evident from the responses which he gave to that examination. 23 An application was made on behalf of the first to fifth respondents for a subpoena to be directed to Mr Maycock requiring him to give evidence at trial. It is well settled that the issue of a subpoena will be an abuse of process if it is not used for a legitimate forensic purpose. 24 Here, it is evident enough that there is a legitimate forensic purpose on the part of the first to fifth respondents in seeking a subpoena directed to Mr Maycock, insofar as it goes to there being able to adduce from him evidence, the nature of which is evident from the answers which he gave when examined under s 155. There is, though, a procedural fairness question involved insofar as the first to fifth respondents seek to adduce evidence beyond that. That procedural fairness question touches upon the Commission in terms of its ability in a case where the evidence in chief is otherwise in affidavit form to know the case that is sought to be made on behalf of the first to firth respondents in chief. 25 The Commission has proposed, in terms of meeting the procedural fairness aspects, a regime whereby the first to fifth respondents would be required to file and serve, by a particular date, an outline of anticipated evidence of any witness proposed to be called by those respondents at the hearing of the proceeding and who has not provided an affidavit, with a reservation in respect of the sixth and seventh respondents. That particular reservation is necessary because those two respondents are natural persons who are entitled to claim privilege in respect of the giving of evidence in chief if they so choose. 26 A way of meeting the interests of the Commission in terms of procedural fairness, as well as the interests of the first to fifth respondents, is, with respect to Mr Maycock, to provide for those respondents, and without limiting their obligation to provide an outline of his anticipated evidence by reference to his examination under s 155, additionally to identify additional subjects upon which it is proposed to examine Mr Maycock in chief. If I add to that a reservation in respect of additional topics so identified, that the first to fifth respondents not be permitted to lead evidence at trial in respect of those topics without the leave of the court, that will enable the trial judge to determine, in the circumstances of the trial, whether or not it is procedurally fair, having regard to notice of the topics and such submissions as the parties may care to make, for leave of that kind to be given. 27 An additional issue which arose concerned questions of confidentiality undertakings in respect of third party documents provided by way of third party discovery. Pursuant to various orders made at an earlier interlocutory stage by Reeves J, the Commission proposed a particular regime in respect of these documents in its draft order. That regime to me seems appropriate, subject to the addition of a requirement for a copy of the order to be served on each third party by the Commission and, further, to the reservation of liberty to apply to each of those third parties. I make that particular modification to the draft proposed out of an abundance of caution in relation to the contingency that a third party may wish to be heard. It should be recorded that the respondents did not consent to the making of such an order, but such consent is not necessary. 28 I therefore make the orders in terms of the amended draft, which I have signed and placed with the papers. 29 In addition, and by way of separate order, I make an order in terms of the consent filed in Court today. I certify that the preceding twenty-nine (29) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Logan.

Australian Competition and Consumer Commission v Cement Australia Pty Ltd

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