Australian Competition and Consumer Commission v Edison Mission Operations and Maintenance Loy Yang Pty Ltd

penalty hearing against the first respondent 2 The applicant, the ACCC, sought to have the penalty hearing against Edison heard and determined prior to the proceeding in respect of the CEPU. In support of that submission, the ACCC drew attention to the fact that the ACCC and Edison had agreed upon terms of settlement for the resolution of the proceeding, subject to the orders of the Court, and that those terms of settlement had been entered into quite some months ago. The relief sought by the ACCC against Edison is, however, not entirely the subject of agreement. 3 Agreement has been reached concerning declarations, pecuniary penalties and costs. However the ACCC seeks orders for injunctive relief which are not consented to; indeed, Edison filed submissions arguing that the injunctive relief sought should not be granted. In support of its submission for an early hearing of the penalty matter, the ACCC relies upon the public policy that supports the earliest possible resolution of proceedings where parties have reached agreement as to the disposition of these proceedings. Generally speaking, I agree that there is a public policy in the prompt making of final orders where parties have agreed on the outcome of the case. 4 However, as the authorities indicate, that public policy consideration must be balanced against any impingement on the rights and interests of the contesting respondent: see Australian Competition and Consumer Commission v Woolworths (SA) Pty Ltd (2003) 198 ALR 417, per Mansfield J; Australian Competition and Consumer Commission v Australian Medical Association Western Australia Branch Inc (2001) 114 FCR 91, per Carr J; and Australian Competition and Consumer Commission v Real Estate Institute (WA) Inc (1999) 161 ALR 79, per French J. 5 In this case, the allegations made by the ACCC include allegations that Edison and the CEPU were parties to agreements, arrangements or understandings that contravened s 45E and 45EA of Part IV of the Trade Practices Act 1974 (Cth). The agreed statement of facts that supports the settlement with Edison includes statements to the effect that Edison bowed to demands put upon it by the CEPU, and from the viewpoint of the CEPU those are contested matters. 6 The CEPU submits that the contested trial should proceed before final orders are made against Edison. It submits that it would be inappropriate for the Court to make declarations ahead of the determination of the contested case against the CEPU because such declarations assume the existence and effect of a contract, arrangement or understanding contravening Part IV of the Trade Practices Act. The same submission is made in relation to the injunctive relief sought by the ACCC. 7 In those circumstances, the CEPU submits that there is a risk of inconsistent findings on the record in relation to the two respondents in respect of the same contract, arrangement or understanding. It is also submitted that the Court is being asked to take into account matters in fixing a penalty concerning Edison that necessarily prejudge aspects of the case against the CEPU, including the issue of instigated the relevant conduct. 8 In all the circumstances, and having regard to the principles discussed in the authorities I have mentioned, I consider it is just and appropriate that the Court defer any hearing concerning penalty and other final orders against Edison until I have dealt with the contested case against the CEPU. I have indicated that I will attempt to finalise the case against the CEPU as soon as possible, and I will deal with penalty hearing against Edison upon concluding the contested case. 9 I should add that Edison wishes to be involved in only one hearing of the case against it and would oppose any proposal that the Court first deal with penalty against it, deferring the matter of injunctions and declarations to a later point of time. 10 Accordingly I propose to make the following orders and directions. The orders cover some incidental matters relating to the preparation of the case against the CEPU for trial, which have been propounded by Mr O'Bryan, senior counsel for the ACCC, and which are either agreed, or not opposed, by the CEPU. (1) The applicant have leave to issue subpoenas to the State of Victoria in connection with its case against the CEPU; (2) In connection with the case between the ACCC and the CEPU the applicant, the ACCC, prepare in liaison with the second respondent and file and serve a Court Book containing the pleadings and other documents agreed upon, or that a party desires to include, to be filed 21 days prior to the commencement of the trial; (3) The contested proceeding as between the applicant and the second respondent be fixed for trial at 10.15 am on Monday 2 October 2006 on an estimate of five days. (4) The final hearing of the proceeding as between the ACCC and the first respondent be adjourned to a date to be fixed, pending the hearing and determination of the proceeding brought by the applicant against the second respondent; (5) Reserve liberty to apply to all parties in the proceeding on reasonable notice.

Notice of motion 11 The CEPU issued a notice for motion dated 23 March 2006 seeking production for inspection of documents over which the ACCC had claimed public interest immunity. The CEPU now wishes to obtain an order striking out the notice of motion, having received an affidavit sworn on 3 April 2006 by Brian Cassidy, the Chief Executive Officer of the ACCC, articulating the full basis for the claim of public interest immunity. Prior to the issue of the notice of motion, the solicitor for the CEPU had sought identification from the ACCC of the basis for the claim for privilege. The basis of the claim for privilege was described in a letter from the Australian Government Solicitor of 9 March 2006 to the CEPU's solicitors. 12 The letter made it clear that the basis of the claim for privilege is the public interest immunity that operates to protect the identity of persons who provide confidential information to a law enforcement agency concerning contraventions of a relevant law which the agency has responsibility for enforcing. The CEPU's solicitor responded to that letter, taking issue with the scope and applicability of the principle. The response did not suggest that the concerns of the CEPU would be met if the ACCC made it clear that the particular informants held fears of a kind that attracted the privilege. However, that is now the basis on which the CEPU says it now has sufficient information to withdraw the application. In all the circumstances, I consider that the CEPU should pay the ACCC's costs of and incidental to the notice of motion of 23 March 2006. 13 The additional orders I will make in relation to the notice of motion are as follows: (1) The notice of motion dated 23 March 2006 be struck out; (2) The second respondent pay the applicant's costs of and incidental to the notice of motion.

I certify that the preceding thirteen (13) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Young.

Counsel for the Applicant: N O'Brien SC with J Boston

Solicitor for the Applicant: Australian Government Solicitor

Solicitor for the First Respondent: Blake Dawson Waldron

Counsel for the Second Respondent: Herman Borenstein SC with D Guidolin

Solicitor for the Second Respondent: Geoff Borenstein, in-house for the Second Respondent