Australian Competition and Consumer Commission v Pratt - [2008] FCA 1373 - FCA 2008 case summary — Zoe

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Australian Competition and Consumer Commission v Pratt

[2008] FCA 1373

Federal Court of Australia|2008-09-09|Before: Ryan J

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Court

Federal Court of Australia

Decision date

2008-09-09

Before

Ryan J

Source

Original judgment source is linked above.

Judgment (54 paragraphs)

[1]

THE COURT ORDERS THAT:

The defendant have leave further to amend each of the subpoenas served on the prosecutor ("the ACCC"), the Commonwealth Director of Public Prosecutions ("the CDPP") and the Australian Government Solicitor ("the AGS") by substituting in the definition of "relevant period" appearing therein for the phrase "the period between 22 November 2004 and 19 June 2008", the phrase "the period between 26 July 2005 and 19 June 2008."
The defendant be relieved from the need to serve on any of the ACCC, the CDPP, and the AGS each of the subpoenas respectively addressed to those entities and amended pursuant to the leave granted by paragraph 1 of this Order.
Each of paragraphs 4, 5 and 9 of the said subpoenas respectively addressed to the ACCC, the CDPP and the AGS be set aside.
The defendant have leave to amend each of the subpoenas respectively addressed to Graeme Samuel ("Samuel") and Robert Alexander ("Alexander") and filed herein on 7 July 2008 by inserting in paragraph 1 thereof after the word "recordings" the words "created or coming into existence between 26 July 2005 and 19 June 2008".
Each of sub-paragraphs 1(a) and (b) of the said subpoenas respectively addressed to Samuel and Alexander be set aside.
Paragraphs 4, 5, 7, 8 and 10 of the amended subpoena addressed to Amcor Ltd ("Amcor") dated 27 August 2008 be set aside.
The ACCC, the CDPP and the AGS by 30 September 2008 produce into the custody of the Court the documents described in paragraphs 1, 2, 4, 6, 7 and 8 of the subpoenas respectively addressed to those entities as amended in accordance with paragraph 1 of this Order.
Samuel and Alexander by 30 September 2008 produce into the custody of the Court the documents described in sub-paragraphs 1(c) of each of the subpoenas respectively addressed to those persons as amended in accordance with paragraph 4 of this Order.
Each of the ACCC, the CDPP, the AGS, Samuel and Alexander by 2 October 2008 provide to the Defendant a list of each of the documents produced in accordance with paragraphs 7 and 8 of this Order over which or part of which it or he maintains a claim for legal professional privilege stating the basis of each such claim of privilege.

[3]

REASONS FOR JUDGMENT 1 On 19 June 2008, the applicant ("the ACCC") procured the issue out of this Court of a summons requiring the defendant ("Pratt") to answer the following charges; '1. On the 26th day of July 2005 at Melbourne in the State of Victoria Richard Pratt of 94 Studley Park Road, Kew in the State of Victoria did, contrary to section 155(5) of the Trade Practices Act 1974, in purported compliance with a notice under section 155 of that Act, knowingly give false or misleading evidence by stating that he had no recollection of a conversation with Russell Jones on 21 May 2001 about the existence of an arrangement between Visy and Amcor in respect of their respective corrugated box business. 2. On the 26th day of July 2005 at Melbourne in the State of Victoria Richard Pratt of 94 Studley Park Road, Kew in the State of Victoria did, contrary to section 155(5) of the Trade Practices Act 1974, in purported compliance with a notice under section 155 of that Act, knowingly give false or misleading evidence by stating that he did not have a conversation with Russell Jones on 21 May 2001 wherein Russell Jones told him that Peter Brown had told Russell Jones that there was an arrangement in place between Amcor and Visy in respect of their respective corrugated box businesses which involved the prevention of major market share shifts. 3. On the 26th day of July 2005 at Melbourne in the State of Victoria Richard Pratt of 94 Studley Park Road, Kew in the State of Victoria did, contrary to section 155(5) of the Trade Practices Act 1974, in purported compliance with a notice under section 155 of that Act, knowingly give false or misleading evidence by stating that he did not have a conversation with Russell Jones on 21 May 2001 wherein Russell Jones told him that he would like to get his confirmation that the arrangement that was in place between Amcor and Visy in respect of their respective corrugated box businesses, which involved the prevention of major market share shifts, was something that the said Richard Pratt supported and that the said Richard Pratt would tell Harry Debney to ensure that the arrangement was adhered to by Mr Pratt's people. 4. On the 26th day of July 2005 at Melbourne in the State of Victoria Richard Pratt of 94 Studley Park Road, Kew in the State of Victoria did, contrary to section 155(5) of the Trade Practices Act 1974, in purported compliance with a notice under section 155 of that Act, knowingly give false or misleading evidence by stating that he did not, prior to Christmas 2004, have any knowledge of the existence of an arrangement between Amcor and Visy in respect of their respective corrugated box businesses.' 2 Particulars were appended to each statement of the charges identifying extracts from the transcript of an examination of Pratt conducted on 26 July 2005 pursuant to s 155 of the Trade Practices Act 1974 ("the TPA") in which the alleged giving by Pratt of false or misleading evidence was said to have occurred. 3 The summons to Pratt was accompanied by an information for an offence laid by Robert Menzies Alexander, the General Counsel of the ACCC, which reproduced as the statement of each of four offences the charges and particulars set out in the summons described at [1] and [2] above. 4 On 7 July 2008, I gave, amongst others, the following directions: '1. On or before 4.00pm on 21 July 2008, the Prosecutor file and serve:

[4]

(a) the brief of evidence; (b) a prosecution case statement that sets out the manner in which the prosecution will put the case against the Defendant and the acts, facts, matters and circumstances being relied upon to support a finding of guilty; (c) a notice of pre-trial admissions, identifying the evidence that, in the opinion of the Prosecutor, ought to be admitted as evidence without further proof, including evidence that is directed solely to formal matters. 2. On or before 4.00 pm on 28 July 2008 the Defendant file and serve any subpoenas to witnesses from whom he may desire the production of documents or the giving of oral evidence, such subpoenas to be made returnable in the first instance before a Registrar of the Court on 6 August 2008.' 5 Pursuant to those directions, the ACCC, on 21 July 2008, filed and served a "Prosecution Case Statement", a Notice of Pre-Trial Admissions which Pratt was called upon to make and a "Brief of Evidence" contained in two substantial folders including affidavits on which the ACCC intended to rely at trial. In the meantime, the solicitors for Pratt had caused to be issued, on 7 July 2008, subpoenas requiring the following persons or agencies to produce documents which were respectively specified or described in each subpoena; (a) the Commonwealth Director of Public Prosecutions ("the CDPP") (b) the informant in these proceedings, Robert Menzies Alexander ("Alexander"); (c) the Chairman of the ACCC, Graeme Samuel ("Samuel"); (d) the Australian Government Solicitor ("the AGS"); (e) the ACCC. 6 On 25 July 2008 the defendant served further subpoenas on the ACCC, the CDPP and the AGS. With some minor amendments, those later subpoenas were in the same terms as the earlier subpoenas respectively served on the same entities which were consequently discharged by order of Registrar Burns on 6 August 2008. 7 By motion on notice dated 31 July 2008, the persons and entities noted at [5] and [6] above as having been served with subpoenas moved to have the extant subpoenas set aside. A hearing of that motion occurred on 12 August 2008. 8 On 20 July 2008, a subpoena was issued at the instigation of Pratt and served on Amcor requiring it to produce documents described in nine separate paragraphs. Amcor by motion on notice dated 26 August 2008 has sought an order setting aside paragraphs 4, 5, 7, 8 and 10 of the subpoena addressed to it. Paragraphs 4 and 5 have subsequently been amended and counsel for Amcor have been content to argue its motion as if it had been directed to those amended paragraphs as well as the unamended paragraphs 7, 8 and 10. 9 The extant subpoenas issued to the ACCC, the CDPP and the AGS are substantially identical. The same can be said of the subpoenas issued to the individuals Samuel and Alexander. The dispute about the subpoena to Amcor is in narrower compass but raises similar issues.

[5]

A The forensic purposes for which access to documents is sought 10 Counsel for the defendant have indicated one forensic purpose for the issue of the subject subpoenas as being to support an application for a permanent stay of the proceedings on the ground that their institution or prosecution constitutes an abuse of process or an abuse of power by the ACCC. That foreshadowed application arises out of the following facts. On 21 December 2005, the ACCC instituted civil proceedings in this Court against Visy Industries Holdings Pty Ltd, Visy Industries Australia Pty Ltd and Visy Board Pty Ltd (to which I shall refer collectively as "Visy") and the present defendant, Pratt, and two other individuals as respondents. In the civil proceedings, the ACCC alleged that Visy and the individual respondents, including Pratt, who were officers of Visy, had engaged in price fixing and market sharing arrangements in the corrugated fibre packaging market with companies in the Amcor group ("Amcor") contrary to s 45 of the TPA. The respondents to the civil proceedings admitted liability and the parties invited Heerey J to impose penalties and make other appropriate orders on the basis of an agreed statement of facts ("the agreed statement") which had been agreed on 6 October 2007 and submitted to the Court on 16 October 2007. His Honour's reasons for the orders made in consequence of that agreement are reported sub nom Australian Competition and Consumer Commission v Visy Industry Holdings Pty Ltd (No 3) (2007) 244 ALR 673. In the introductory remarks which prefaced those reasons, his Honour observed, at [1] and [8]; '1 … … The parties have tendered an agreed statement of facts. This means that the parties agree that, for the purposes of this proceeding, the facts in this statement are not to be disputed: see Evidence Act 1995 (Cth) s 191. The parties say that this agreement is not to be taken as an admission to those facts outside the context of this proceeding. I am not bound to accept facts merely because they have been agreed between the parties. Also I can draw inferences from such of the agreed facts as are accepted.'

[8]

12 As I understand them, the allegations of abuse of power and abuse of process against the ACCC are founded on an inference that, before instituting the civil proceedings, or while they were pending, the ACCC decided, or formed an intention, to prosecute Pratt for contravention of s 155(5) of the TPA. That allegedly remained the state of mind of the ACCC when it was negotiating the agreed statement and when it tendered it to the Court in the civil proceedings. Mr Richter QC, who appears as leading Counsel for Pratt in the present proceedings, also seemed to rely on the fact that the state of mind which is now imputed to the ACCC was never communicated to Pratt, Visy or their legal advisers before the civil proceedings were resolved. He contended at a hearing before me on 7 July 2008; '…… at the time of the civil proceedings and at the time of their settlement, the parties who are responsible for this prosecution had in contemplation of bringing a criminal proceeding. And if that is so, the abuse is even more serious because had the charges been laid appropriately they could have been laid back in 2005 when the civil proceeding commenced and had they been commenced then, there would have been an application to stay the civil proceedings pending the determination of the criminal proceedings. The criminal proceedings would then have proceeded without any Agreed Statement of Facts.' 13 Another forensic purpose which can be inferred as underlying the application on behalf of Pratt for access to some of the documents described in the subject subpoenas is to attack the credibility of Russell Jones, a former officer of Amcor, ("Jones") who has been identified as a witness to be called as part of the ACCC's case. Presumably, Jones will testify that Pratt, in fact, made to him the "communication" referred to in paragraph 96 of the agreed statement. It appears that Brown, another former officer of Amcor, will be called to establish that, before the alleged meeting at the All Nations Hotel, he had notified Jones of the "Over-arching Understanding" which he, Brown, had reached with Debney, a former chief executive officer of Visy, of which Pratt has at all relevant times been a director. In an affidavit by Brown forming part of the brief of evidence filed by the ACCC, he also deposes to an account given to him by Jones of what Pratt had told Jones at the alleged meeting on 21 May 2007. I therefore assume, also, that Pratt and his advisers will seek to further the purpose of attacking Jones' credibility, by calling into question what had been communicated to him by Brown before 21 May 2007 and his recounting to Brown of what had happened at the alleged meeting on that date. 14 The authorities which indicate the principles governing the Court's discretion on motions like the present are well-known and include several recent applications of those principles to particular facts. It is convenient to restate the relevant principles and then endeavour to apply them first to the subpoenas issued to the ACCC, the CDPP and the AGS, secondly to the subpoenas addressed to Samuel and Alexander and then to the disputed paragraphs of the amended subpoena to Amcor.

[9]

B Principles governing the production of documents on subpoena 15 A party who has issued a subpoena for the production of documents for use in proceedings before a court must satisfy the court that access to the documents is sought for a "legitimate forensic purpose" and also that it is "on the cards" that the documents will "materially assist" that party's case. In R v Saleam [1999] NSWCCA 86, the applicant, who had been convicted of conspiracy maliciously to damage by fire a motor vehicle, had applied to the trial judge for a permanent stay on the ground, amongst others, that he had been induced to commit the offence by his former wife who, in turn, had been acting at the instigation of a police officer. The trial judge refused the application for a stay. He later sought an extension of time in which to appeal against his conviction and leave to appeal against the refusal of a stay. For the purposes of those applications and any resultant appeal, he sought to have certain documents produced by the Commissioner of Police. 16 Simpson J, with whom Spigelman CJ and Studdert J agreed, held, after extensive reference to the observations of the High Court in R v Ridgeway (1995) 184 CLR 19, that the applicant had a legitimate forensic purpose in seeking to demonstrate that a named member of the Police Force had instigated the commission of the offence. However, her Honour concluded that "there was nothing from which one could even speculate" that the documents, files or records sought by the applicant which, he claimed, had been constructed and maintained by the Special Branch of the NSW Police Service, "might contain information that would disclose or permit the inference that Detective Ireland instigated the offence with which the applicant was charged." Accordingly, her Honour concluded, it was not "on the cards" that production of the documents would assist in achieving the assumed legitimate forensic purpose. 17 In Attorney-General for New South Wales v Chidgey [2008] NSW CCA 65 [unreported, 28 March 2008] the respondent had caused to be issued to the Commissioner of Police a subpoena requiring the production, amongst other things, of; 'A copy of the relevant documents and things required to be completed by the Police in accordance with the Controlled Operations Act and Regulations, including but not limited to the applications made for the approval of Controlled Operation CO OS/434.' 18 In her reasons for judgment, Beazley JA, with whom James and Kirby JJ agreed, noted that the legitimate forensic purpose for which the respondent sought production of the documents had been articulated as follows; '…… the documents contain information that will assist the accused's defence insofar as they go towards challenging the admissibility of evidence pursuant to s 138(1)(b) of the Evidence Act 1995.' Her Honour summarised the argument advanced on behalf of the respondent as based on the respondent's defence which was; 'that [the] offence was based [on]"an artefact of the design of the controlled operation". It was alleged that the repetition of supply was deliberately sought by the police in order to create, or "ramp up", the charges from isolated incidents to a course of dealing in contravention of s 25A. In other words, it was asserted that the s 25A charge had only come about by the undercover police operatives importuning the respondent to supply the drug on a number of occasions. It was said that the police could only have engaged in that conduct by specifically making an application to do so. Of necessity, the conduct in which they proposed to engage had to be "mapped out" in the plan of the proposed operation, required to be provided in support of an application for a controlled Operations Authority under s 5(2A) [of]the Law Enforcement (Controlled Operations) Act.' 19 After noting that the Attorney-General's essential challenge to the subpoena was that "the respondent had failed to establish that there was a legitimate forensic purpose of the type which permits access to the documents" her Honour held that the Attorney-General had an appeal as of right from an order of a Magistrate refusing to set aside part of the subpoena directed to the Commissioner of Police. Her Honour then proceeded to consider whether there was a legitimate forensic purpose for the issue of the subpoena. 20 It was first noted that the authorities establish that a party is entitled to use a subpoena not for the purposes of "fishing", but to discover whether he has a case at all, and, secondly, that mere relevance of the documents sought to a matter in issue is not sufficient. Rather, it must be "on the cards" that the documents will materially assist the case of the party issuing the subpoena; see Carroll v Attorney-General for New South Wales (1993) 70 A Crim R 162. After referring to the judgment of the Court of Criminal Appeal in R v Saleam (supra) and of the High Court in Alister v The Queen (1984) 154 CLR 404 at 414, her Honour continued, at [68]-[70]; '68 The approach of Gibbs CJ in Alister has been consistently adopted and applied in this State. An early, useful example is Principal Registrar oftheSupreme Court v Tastan. Barr AJ (as his Honour then was) said, at 499, that there will be no legitimate forensic purpose if, "all the party is doing is trying to get hold of the documents to see whether they may assist him in his case": see The Commissioner for Railways v Small. His Honour noted that there was nothing in the case before him that made it appear to be "on the cards" that anything contained in the subpoenaed documents was likely to materially assist the accused in his defence. His Honour considered, at 506, that the defendant wanted access to the documents "to see whether he had a [defence]".

[15]

22 Significance attaches, in the context of the present case, to the fact that the subpoenas have been issued on behalf of an accused person whose liberty is at stake in criminal proceedings. In Alister v The Queen the accused, who had been charged with conspiracy to murder and attempted murder, sought the return of a subpoena to the officer in charge of the Australian Security Intelligence Organisation ("ASIO"). The subpoena sought the production of all files, notes and memoranda relating to or supplied by the investigation by one Seary into the Ananda Marga organisation and its activities from 15 June 1977 to the date of the subpoena. Seary was the principal Crown witness against the accused. It was held by majority that production of documents described in the subpoena should have been ordered to enable the Court to discover whether any such documents existed and to inspect them to determine whether they should have been disclosed to the accused. 23 Gibbs CJ observed, at 414; 'Both Burmah Oil Co Ltd v Bank of England (1980) AC 1090 and Air Canada v. Secretary of State for Trade [1983] 2 AC 394 support the view that where the Crown objects to the production of a class of documents on the ground of public interest immunity, the judge should not look at the documents unless he is persuaded that inspection would be likely to satisfy him that he ought to order production; in the words of Lord Wilberforce in Air Canada v. Secretary of State for Trade [1983] 2 AC, at p 439, he must have "some concrete ground for belief which takes the case beyond a mere `fishing' expedition". In the latter case the House of Lords divided on the question whether, before inspection is ordered, the documents should appear likely to support the case of the party seeking discovery, or whether it is enough that they should appear likely to assist any of the parties to the proceedings; the majority favoured the former view. In both cases the proceedings were civil and not criminal. Just as in the balancing process the scales must swing in favour of discovery if the documents are necessary to support the defence of an accused person whose liberty is at stake in a criminal trial (see Sankey v. Whitlam (1978) 142 CLR at pp 42, 62), so, in considering whether to inspect documents for the purpose of deciding whether they should be disclosed, the court must attach special weight to the fact that the documents may support the defence of an accused person in criminal proceedings. Although a mere "fishing" expedition can never be allowed, it may be enough that it appears to be "on the cards" that the documents will materially assist the defence. If, for example, it were known that an important witness for the Crown had given a report on the case to ASIO it would not be right to refuse disclosure simply because there were no grounds for thinking that the report could assist the accused. To refuse discovery only for that reason would leave the accused with a legitimate sense of grievance, since he would not be able to test the evidence of the witness by comparing it with the report, and would be likely to give rise to the reproach that justice had not been seen to be done.' 24 The fact that the subpoena had been issued in criminal proceedings was similarly emphasised by Gillard J in R v Mokbel (Ruling No 1) [2005] VSC 410, at [41] and by Bell J in Ragg v Magistrates Court of Victoria [2008] VSC 1, at [88] and [97]. In the latter case, his Honour observed: '88 It is clear that the accused does not have to establish that the defence would actually be assisted by production of the documents. A test of that kind would have the capacity to produce monstrous unfairness, is not supported by authority and was not put forward by Mr Ragg.

[17]

25 A prosecuting authority will not be required to comply with a subpoena merely to enable an accused person to "check" whether the prosecutorial obligations of disclosure have been discharged. Those obligations have been described in some detail by the Victorian Court of Criminal Appeal in R v Higgins (unreported, 2 March 1994) where the Court (Brooking, Byrne and Eames JJ) observed, at 72; 'It was not disputed before us that neither the Crown nor the accused has any obligation to make general discovery in a criminal trial: R v Saleam (1989) 16 NSWLR 14; Sobh v Victoria Police Commissioner (1993) 65 A Crim R 466; nor that the Crown does have an obligation to disclose to the defence material which would tend to assist the defence case: Clarkson v DPP [1990] VR 745 at p755. This obligation to make disclosure is one arising out of the fundamental duty of the prosecution to ensure that the Crown case is presented with fairness to the accused: Richardson v R (1974) 131 CLR 116 at p119; Clarkson v DPP [1990] VR 745 at p759. The application of this duty of disclosure to a given case will depend upon the facts of that case and the significance of the material in question in the light of the issues in that particular case: R v Charlton [1972] VR 758. See for example Lawless v R (1979) 142 CLR 659 at p666, per Barwick CJ; at p673-p674, per Stephen J; at p678 per Mason J. The obligation too may be modified by agreement between the Crown and the accused providing always that such agreement is an informed one freely entered into: Whitehorn v R (1983) 152 CLR 657 at p665, per Deane J.' In the same case their Honours pointed out, at 76-78; 'The application of the duty of fairness imposes a heavy responsibility upon prosecutors and one which requires of them a considerable degree of objectivity, for it is no part of their function improperly to strive for a conviction or to permit their judgment to be swayed by feelings of professional rivalry. In R v Apostilides (1984) 154 CLR 563 at p575-p576 the High Court described the role of the prosecutor in deciding whether to call a witness as:

[21]

C The subpoenas issued to the ACCC, the CDPP and the AGS 26 The documents and things which the ACCC is required to produce by the subpoena addressed to it are; 1. All documents relating to or recording the consideration by the ACCC during the relevant period of criminal charges against the Defendant. 2. All documents relating to meetings, conversations or communications between the ACCC and DPP during the relevant period, including all correspondence passing between the ACCC and DPP during the relevant period relating to potential criminal charges against the Defendant. 3. All documents capable of being described as a running log of the investigation of the Defendant for the relevant period. 4. All documents relating to any decision by the ACCC about whether to sign (or not sign) the Mediation Agreement. 5. All documents relating to communications between the ACCC and Amcor during the relevant period relating to: (a) the investigation of the alleged cartel between Visy and Amcor; or (b) proceedings proposed to be commenced by the ACCC against Visy in relation to alleged cartel conduct. 6. All Memoranda of Understanding between the ACCC and the DPP in operation during the relevant period. 7. All documents concerning and/or governing and/or circumscribing the relationship between the ACCC and the DPP in respect of the investigation and/or prosecution of alleged or suspected breaches of s 155 of the TPA including, but not limited to: (a) documents containing rules or guidelines governing that relationship; (b) documents containing statements of the manner, or intended manner, of the administration of that relationship; or (c) documents describing the procedures to be followed by either the ACCC or the DPP in respect of the investigation and/or prosecution of alleged or suspected breaches of the TPA. 8. All correspondence or other documents containing communications between the ACCC and DPP relating to criminal prosecutions of alleged or suspected breaches of s 155 of the TPA created since 1 July 2003. 9. All correspondence and/or documents recording communications between the ACCC and the DPP concerning procedures or protocols or guidelines proposed to be established between the ACCC and the DPP regarding the prosecution of alleged or suspected breaches of the TPA created since 1 July 2003. The "relevant period" was defined in the prefatory part of the subpoena as "the period between 22 November 2004 and 19 June 2008".

[28]

(v) Paragraph 5 34 This request for access to documents evidencing communications between the ACCC and Amcor appears to have been prompted by the fact that Amcor approached the ACCC on 22 November 2004 seeking the application to Amcor of the ACCC's leniency policy in relation to cartel conduct which had been published in June 2003. That policy has been described in outline by Heerey J in Australian Competition and Consumer Commission v Visy Industry Holdings Pty Ltd (No 3), supra at [8], which is reproduced at [10] of these reasons. The leniency policy and its application to the Amcor-Visy cartel has also been described in more detail by his Honour in Australian Competition and Consumer Commission v Visy Holdings Pty Ltd (No 2) (2007) 239 ALR 762, at [7]-[41]. As his Honour has made clear, a beneficiary of the leniency policy was required to give full and frank disclosure of the cartel conduct and to continue to co-operate with the ACCC, presumably in the prosecution of whatever proceedings it decided to bring against the other participant or participants in the cartel. It follows that, once Amcor had made its approach for leniency, there would necessarily have been voluminous and far-reaching communications between its officers, agents and advisers and representatives of the ACCC in the course of the latter's investigation of the alleged cartel and its preparation for, and prosecution of, the civil proceedings which it consequently decided to take against Visy and the individual respondents. 35 As described by Heerey J, the ACCC's leniency policy indicated that immunity would not be granted to the "clear leader" of a cartel who has admitted liability. The argument in support of paragraph 5 of the subpoena to the ACCC appears to rest on the proposition that the ACCC, in its determination to obtain judgment or a conviction against Visy which is owned and controlled by Pratt and his family, and against Pratt himself, disregarded the need imposed by its own leniency policy to first resolve whether Amcor had been the "clear leader" of the alleged cartel. If that proposition can be made good, it could be relied on to support an imputation of abuse of process or abuse of power by the ACCC in instituting, or continuing to prosecute, the present proceedings. However, I consider that even if "the relevant period" were redefined in the way indicated at [30] above, the range of documents which the ACCC would have to identify and produce in response to paragraph 5 is too wide and would work an oppression. 36 Since the issue of the subject subpoenas, further documents, I have been told, have been provided to Pratt and his advisers in the discharge of the prosecutorial duty of full disclosure. An examination of those documents may suggest the existence of other documents which have the requisite likelihood of assisting the achievement of one or other of the forensic purposes. If that happens, a fresh subpoena can be issued with an appropriately circumscribed and specific description of the presumptive documents. However, paragraph 5 in its present form must be set aside.

[29]

(vi) Paragraphs 6, 7 and 8 37 As I understand it, Pratt and his advisers believe or suspect that lines of authority, decision-making and communication between the ACCC, as the investigating agency, and the CDPP to whom the prosecution of the present proceedings has been entrusted have been changed in some respects from those which are normally followed in inter-action between the two entities. I further glean from the description of the documents sought by these three paragraphs, that they are in the nature of protocols, organisational charts and the like intended to outline or describe spheres of responsibility of officers of the ACCC on the one hand and the CDPP on the other. The documents, if they exist, are also capable of describing lines of communication between the two entities and the demarcation of areas for their respective exercise of discretion. I do not understand any of the three paragraphs, except perhaps paragraph 8, to call for the production of documents related to specific cases which have been investigated by the ACCC and which have been, or are being prosecuted, by the CDPP. If these suppositions be correct, it is likely that the volume of documents to be captured by paragraphs 6, 7 and 8 will be small, particularly when "the relevant period" is redefined as already suggested. To the extent that paragraph 8 can be construed as relating to criminal prosecutions of specific alleged or suspected breaches of s 155 of the TPA other than that against Pratt, the ACCC can seek to be excused from complying with it. 38 If compliance with paragraphs 6, 7 and 8 is limited in the way just outlined, the documents to be produced are capable of assisting Pratt in relation to the imputation to the ACCC of an abuse of power or abuse of process either by affording some support for the imputation or dispelling the suspicion that he has been singled out for the creation or application of some special arrangement between the ACCC and the CDPP. I therefore decline to set aside any of paragraphs 6, 7 and 8.

[38]

(i) Paragraph 4 46 In paragraph 17 of an affidavit affirmed on 26 August 2008, Eleanor Frances Claire Bishop, a solicitor employed by Amcor's solicitors, Allens Arthur Robinson ("AAR") has deposed; 'Based on my review of documents to date, and what I have been told by other lawyers working on the subpoena review team, I believe we have been able to locate the bulk of the substantive correspondence that constitutes or records Amcor's approaches to the ACCC leading to the leniency agreement and any variations thereto. These documents are being produced on 27 August 2008.' 47 In subsequent paragraphs of the same affidavit Ms Bishop has indicated that the number of documents capable of being produced by Amcor "that might contain a mere reference to leniency" is voluminous and their identification would require perusal of numerous folders containing of the order of 66,000 pages. Ms Bishop then went on to depose in the same affidavit; '19 In addition to those classes of documents, there are a number of other files that may require review for documents potentially responsive to category 4, because they might contain documents that merely refer to the leniency agreement or approaches, including: · documents and correspondence in the Jarra Creek proceeding about the discovery of documents concerning any leniency agreement; · documents and correspondence concerning investigations by the New Zealand Commerce Commission; and · documents and correspondence relating to the Hodgson proceeding. 20 Furthermore, there may be yet more documents contained in files maintained by AAR lawyers, including copies of correspondence and internal working papers, most of which would be subject to claims of legal professional privilege by Amcor. 21 Furthermore, I would expect there to be a large number of documents, both in electronic and hard copy format, located at various offices of Amcor which might contain mere references to leniency. It would be extremely onerous to undertake the necessary electronic and manual searches necessary to isolate such documents. 22 Therefore, I believe that the estimation given above in relation to the number of pages that require detail review to identify documents potentially responsive to category 10 will be substantially exceeded in relation to category 4. 23 Furthermore, in my review of documents to date, in addition to the types of matters identified at paragraph 10 above, I have come across the following types of documents which contain mere or passing references to leniency, and do not constitute the leniency agreement or record Amcor's approaches for leniency: · media releases (including a number of drafts), stating the fact of Amcor's leniency; · Amcor's financial statements and annual reports (including various drafts) dating from 2004 onwards stating the fact of leniency; · large volumes of correspondence between AAR and the AGS concerning the provision of documents related to the ACCC investigations; · correspondence in the Jarra Creek proceeding about the discovery of documents concerning leniency; · documents relating to the investigations by the New Zealand Commerce Commission; · documents and correspondence relating to the Hodgson proceeding; · internal AAR drafts of letters relating to leniency; and · internal AAR copy correspondence files and working documents.' 48 I have indicated at [34] and [35] above a basis on which access to documents related to Amcor's request for leniency and the ACCC's acquiescence in that request might materially assist Pratt in achieving a forensic purpose connected with his defence of the present proceedings. However, it is not "on the cards" that such assistance will be afforded by access to all documents containing a "reference", however passing or inconsequential, to a leniency or immunity approach or agreement. The affidavit of Ms Bishop makes clear that the task of identifying all documents answering that description would be massively time-consuming and expensive. 49 I am also fortified in setting aside paragraph 4 of the subpoena to Amcor by that company's undertaking recited at [46] above to produce what is likely to be at least the bulk of documents in its possession which are sufficiently related for present purposes to the leniency agreement and any variations of it. 50 Examination of documents produced pursuant to that undertaking or obtained coercively or otherwise from some other source may suggest the existence of other documents capable of materially assisting Pratt in achieving one or other of the forensic purposes. If so, a fresh subpoena can be issued to Amcor containing an appropriately specific description of those other documents. However, for the reasons indicated Amcor should not be required to comply further with paragraph 4 of the present subpoena.

Australian Competition and Consumer Commission v Pratt

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Judgment (54 paragraphs)

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