Public Interest Immunity
180 The ACCC carries the onus of establishing the claim for public interest immunity. It is a heavy burden that requires the ACCC to "establish a 'real' rather than merely 'some' or 'any' detriment to the public interest from disclosure" of the documents or information: Somerville v Australian Securities Commission (1995) 60 FCR 319 at 354 per Lindgren J; Cadbury Schweppes Pty Ltd v Amcor Ltd at [26] per Gordon J.
181 One of the instances where public interest immunity has arisen is in relation to the identity of and information provided by police informers. In D v National Society for the Prevention of Cruelty to Children Lord Diplock explained the reasons why police informers enjoy having their identity protected by the immunity. The main reason is that the disclosure of the informer's identity to the accused person would discourage informers coming forward, which would inhibit the flow of information to the police and hinder their ability to prevent or detect crime. His Lordship said at 218:
The rationale of the rule as it applies to police informers is plain. If their identity were liable to be disclosed in a court of law, these sources of information would dry up and the police would be hindered in their duty of preventing and detecting crime.
Lord Simon of Glaisdale made a similar point at 232. See also Cain v Glass (No 2) at 233-234 per Kirby P and at 247 per McHugh JA.
182 The Full Court of this Court has recognised that this type of public interest immunity can apply to civil proceedings, and that the public interest in encouraging informers is "as important to a regulatory agency such as ASIC as it is to police in their traditional role": ASIC v P Dawson Nominees Pty Ltd at [32] and [48]. The same can be said for the ACCC. Without informers, cartel conduct would be difficult to detect, and so there is without question public interest in encouraging informers to come forward.
183 Lord Diplock went on to note in D v National Society for the Prevention of Cruelty to Children at 218 that:
… the public interest in preserving the anonymity of police informers had to be weighed against the public interest that information which might assist a judicial tribunal to ascertain facts relevant to an issue upon which it is required to adjudicate should be withheld from that tribunal. By the uniform practice of the judges which by the time of Marks v. Beyfus, 25 Q.B.D. 494 had already hardened into a rule of law, the balance has fallen upon the side of non-disclosure except where upon the trial of a defendant for a criminal offence disclosure of the identity of the informer could help to show that the defendant was innocent of the offence. In that case, and in that case only, the balance falls upon the side of disclosure.
184 The test that applies in Australia is not as strict as put by Lord Diplock. It is not the case that the identity of an informer will not be disclosed unless it can be demonstrated that the identity of the informer "could help to show that the defendant was innocent of the offence." Rather, as the Full Court of this Court made clear in ASIC v P Dawson Pty Ltd, the Court is required to undertake a balancing exercise: at [28].
185 The public interest in preventing disclosure in order to protect informers, and thereby encourage that informer and other informers to come forward in the future, must be weighed against the public interest in ensuring that the Court has access to all relevant evidence, and the public interest in ensuring that defendants, at least in criminal proceedings, receive a fair trial. It is neither helpful nor appropriate to introduce presumptions into the exercise. Each case will be different.
186 The issue in this case is not whether the Court or the respondents should ever have access to Mr A's identity. The ACCC accepted that Mr A's identity and the documents would need to be disclosed to the respondents at some point prior to the trial in order to ensure that the respondents receive a fair trial. Rather, the issue here is whether the respondents are entitled to Mr A's identity and the documents at this stage in the proceeding.
187 Accordingly, the public interest in protecting Mr A's anonymity at this stage in the proceeding must be balanced against the public interest in ensuring that the respondents are able to prepare their case adequately. In particular, consideration needs to be given to whether Prysmian and Nexans require the documents and Mr A's identity in order to prepare for the application to have service of the proceedings set aside, bearing in mind that the ACCC is willing to disclose the documents and information to those Australian lawyers of the respondents who have signed confidentiality undertakings.
188 Before turning to consider this question it is important to appreciate that Mr A is in a somewhat different position to that of a police informer. The harm that non-disclosure seeks to prevent to a police informer is harm from the accused person who has been informed on. If the identity of the informer is disclosed, the accused person may take retaliatory action against the informer. This might have the effect of intimidating potential future informers. Accordingly, there is a public interest in protecting the informer to prevent this harm.
189 However, the harm Mr A says he will suffer as a result of the disclosure of the documents is that the documents might come to the attention of prosecuting authorities in other jurisdictions, and that he might then be subject to investigation and civil or criminal proceedings in those jurisdictions. Put another way, the harm Mr A complains of is that he may be prosecuted in other jurisdictions for his conduct.
190 It is not the role of this Court, or indeed the informer rule in the context of public interest immunity, to protect Mr A from lawful prosecution in other jurisdictions. The adverse consequences that he might suffer in other jurisdictions for conduct that may be unlawful in those jurisdictions are not matters of public interest in this jurisdiction.
191 Accordingly, I do not think that the risk of prosecution in other jurisdictions is a matter to which I should have regard in determining whether Mr A's identity should be released without conditions, or whether the documents should be given to the respondents without conditions. For the same reason the fact that Mr A may decide not to give evidence in this proceeding is also not relevant. The ACCC recognises that the respondents must know Mr A's identity before the trial to enable the respondents to enjoy their right to a fair trial. Mr A knows that his identity is to be disclosed at some time, and before he is due to give evidence. He will make his decision as to whether he will cooperate with the ACCC to retain his derivative immunity by giving evidence knowing that the respondents are aware of his identity.
192 That is not to say that there is no harm to which the ACCC, JPS and Mr A can point to that is relevant to the balancing exercise. In ASIC v P Dawson Nominees Pty Ltd at [51]-[52] that:
[51] … Rightly or wrongly, informers are often regarded with disfavour. Their motives are often questioned - sometimes justifiably, although the public interest is not confined to protection of those informers who act from pure altruism. Persons contemplating whistleblowing would realise that disclosure of their identity may cause them harm in ways they never find out - employment or promotions not offered, friendships undermined.
[52] That such adverse consequences may ensue is not to be dismissed as speculative. …
Those matters are relevant on this application, although the extent of such harm is mitigated to some degree in this case by O 46 r 6(3) of the Federal Court Rules.
193 Order 46 rule 6(1) permits a person to inspect a document of the kind mentioned in subrule (2) in a proceeding. An affidavit is not such a document. An affidavit may only be inspected by a person not a party with leave of the Court: O 46 r 3. In those circumstances, a person not a party would only be entitled to inspect the Jacquier affidavits with leave of the Court.
194 However, the effect that allowing disclosure would have on future possible informers is a matter to be taken into account. The TPA recognises that the promotion of competition and fair trading will enhance the welfare of Australians: s 2. It is in the public interest to ensure that proscribed anti-competitive behaviour by corporations is detected in order that persons who engage in that conduct might be brought before the courts.
195 Therefore, it is in the public interest to encourage future informers to cooperate with the ACCC, and it must be accepted that disclosure of Mr A's identity in these circumstances could have the effect of deterring future informers from coming forward and giving information about cartel conduct. To paraphrase what the Full Court said in ASIC v P Dawson Nominees Pty Ltd, there may be potential future informers who decide that informing the ACCC of cartel conduct "is just not worth it": at [52]. This may prejudice the ACCC's investigations in this and other cases. It may also limit the assistance that JPS can provide to the ACCC, since it may discourage other employees who may have relevant information from coming forward.
196 However, against this must be weighed the public interest in ensuring that the respondents receive a fair trial.
197 The respondents are not required to point to some identifiable miscarriage of justice that they would suffer if Mr A's identity was withheld from them. Rather, the question is whether there is good reason to think that disclosure of Mr A's identity might substantially assist the respondents prepare for the application to have service of the proceedings set aside.
198 When an application is made under O 9 r 7 to have service of a proceeding set aside, the applicant must establish for a second time that it has a prima facie case; the applicant having previously established the existence of such a prima facie case on the application for leave to serve an originating process outside of Australia under O 8 r 3 of the Federal Court Rules. The applicant will do so where it can show by credible evidence that inferences are open which translate into findings of fact that support the relief claimed: ACCC v April International Marketing Services Australia Pty Ltd (No 6) (2010) 270 ALR 504 at [8] per Bennett J.
199 An application under O 9 r 7 is not intended to give rise to a substantial inquiry, "since the purpose is to determine by way of a mini rather than a mega trial whether the applicant has a prima facie case": WSGAL Pty Ltd v Trade Practices Commission (1992) 111 ALR 126 at 130 per Beaumont J. The threshold is not high. In Armacel Pty Ltd v Smurfit Stone Container Corporation (2008) 248 ALR 573 at [46], Jacobson J said "[t]he Court is not required to trawl through the material to determine the strength of the case." However, this does not diminish the importance of the respondents' right to know whether the evidence that has been adduced is sufficiently reliable or indeed capable of supporting the inferences for which the ACCC contends.
200 In an application to set aside service, the Court conducts a review, by way of rehearing, of the original decision to grant leave. The review hearing enables the respondent to put facts, arguments or materials before the Court that might suggest that leave should not have been granted.
201 Importantly, it will be open to Prysmian and Nexans to argue on the application to have service set aside that the ACCC's claim has insufficient prospects of success to warrant putting them to the time, expense and trouble of defending the claim: Agar v Hyde (2000) 201 CLR 552 at [55] per Gaudron, McHugh, Gummow and Hayne JJ.
202 Information provided by Mr A was used in the preparation of the First Jacquier Affidavit, which was relied on by the ACCC in support of its application for leave to have the proceedings served on Prysmian and Nexans. Information emanating from Mr A was used to support the ACCC's submission that it had a prima facie case.
203 In particular, it would seem that information from Mr A was used to support the allegation that there is an A/R Cartel Agreement, as well as the allegations as to the terms of that agreement. Mr A also provided information to support the allegations made by the ACCC in relation to the Snowy Hydro Project. It would seem he or JPS provided the ACCC with an email that was sent by JPS pursuant to the A/R Cartel Agreement to the respondents, and that in response JPS received "price guidance" from the respondents.
204 The information provided by Mr A enabled the ACCC to make the serious allegations that it has. I do not intend by that to express any view on the strength of the allegations made by the ACCC. For present purposes, it is sufficient to say that information provided by Mr A appears to form the basis of many of the allegations made by the ACCC, allegations that the ACCC needs to make out in order to prove its case.
205 Mr A has, through his lawyers, asserted that he has not engaged in any illegal conduct, at least in other jurisdictions. Accordingly, it may be that Mr A's credibility is in issue on any application by the respondents to have service of the proceeding set aside, as it may be at trial.
206 I agree with Prysmian and Nexans' submissions that whilst the respondents may be able to deduct or make an educated guess as to the identity of Mr A, it is difficult for the respondents to search their records and make inquiries of their staff about the allegations made by Mr A without being sure of his identity. It would also make it more difficult for Prysmian and Nexans to determine what (if any) evidence they should lead on any application to have service of the proceedings set aside.
207 Furthermore, it would be difficult for the respondents to test the assertions made on behalf of Mr A that he has not engaged in any illegal conduct. The respondents are entitled to test these assertions against the allegations he has made as to the existence of the A/R Cartel Agreement, and the participation of JPS and the respondents in that agreement. It is critical at this stage that the respondents have the opportunity to explore this possibility. It follows that I agree with the observation made by Brooking J in Jarvie v The Magistrates' Court of Victoria at Brunswick at 91 that:
[t]here is no reason why, in a strong enough case, the necessary substantial prejudice [to the defendant] could not consist in the inability to gather and use material bearing on the credibility of a witness for the prosecution of some importance where the credibility of that witness was really in question.
See also Haydon v Magistrates Court at [30] per Doyle CJ.
208 It may be the case that once Mr A's identity is revealed it becomes apparent to Prysmian and Nexans that there is a proper controversy existing between them and the ACCC, and that accordingly it is not worthwhile pressing their application to have service of the proceeding set aside. The fact is, without the documents and knowledge of Mr A's identity, Prysmian and Nexans would find it difficult to assess the strength of the ACCC's claim.
209 The ACCC's principal argument, which was supported by JPS, was that Prysmian and Nexans have not submitted to the jurisdiction, and are therefore neither bound by the "implied undertaking" as to confidentiality nor liable to punishment for contempt in the event that any document was used for a collateral purpose. JPS argued that there is a real risk that if disclosed Mr A's identity would be used for a collateral purpose by Prysmian and Nexans, especially if their applications to set aside service were successful.
210 I do not accept this argument. It is clear from the judgment of Hayne, Heydon and Crennan JJ in Hearne v Street that in addition to binding the litigant, "[t]he implied undertaking also binds others to whom documents and information are given": at [109].
211 In Hamersley Iron Pty Ltd v Lovell (1998) 19 WAR 316 Anderson J, with Pidgeon and Ipp JJ agreeing, said at 334-335:
The implied undertaking is binding upon anyone into whose hands the discovered documents come, if he knows that they were obtained by way of discovery.
212 As Hayne, Heydon and Crennan JJ went on to note in Hearne v Street at [111]-[112]:
If this principle did not exist, the "implied undertaking" or obligation on the litigant would be of little value because it could be evaded easily. That is why Lord Denning MR said in Riddick v Thames Board Mills Ltd: "The courts should … not allow the other party - or anyone else - to use the documents for any ulterior or alien purpose. Otherwise the courts themselves would be doing injustice". And in the same case Stephenson LJ also said: "[I]t is important to the public and in the public interest that the protection should be enforced against anybody who makes improper use of it." Use with knowledge of the circumstances would be improper use.
There is no support in the authorities for the idea that knowledge of anything more than the origins of the material in legal proceedings need be established. In particular, there is no support for the idea that knowledge of the "implied undertaking" and its consequences should be proved, for that would be to require proof of knowledge of the law, and generally ignorance of the law does not prevent liability arising.
(Footnotes omitted)
213 Prysmian and Nexans would be subject to the "implied undertaking" not to use the documents or information for any purpose other than that for which it was given, namely to help them to prepare for an application to set aside service and, if that application is withdrawn or unsuccessful, their defence to this proceeding. They conceded as much. If they breach this "implied undertaking" they could be liable to be punished in this Court.
214 It may be that if service of the proceedings on Prysmian and Nexans is set aside and Prysmian and Nexans are never called upon to submit to the Court's jurisdiction, the Court would find it more difficult to punish those parties if the parties breached the implied undertaking. However, they are represented by Australian lawyers who are officers of the Court and who are also within the Court's reach.
215 In any event, the ACCC's argument, even if it could succeed against Prysmian and Nexans, could not succeed against Viscas. Viscas has submitted to the jurisdiction. Given that the ACCC has conceded that the respondents will be entitled to the documents and Mr A's identity at some stage in the proceeding, and that its main argument in relation to Prysmian and Nexans presently having access is that they have not submitted to the jurisdiction, there can be no reason why Viscas should not be entitled to the documents and information now. It is entitled to this information to help it prepare its defence to the proceeding.
216 Three final points need to be made.
217 First, while the terms of paragraph 1 of the ACCC's Amended Notice of Motion would permit limited disclosure of the documents and Mr A's identity to the Australian solicitors acting for the respondents, that is no reason why disclosure should not be made to the respondents. As is evident from these reasons, in order to prepare their case properly the respondents may need to conduct internal searches and make inquiries of their staff. Furthermore, the respondents are foreign companies with foreign lawyers advising them. They are entitled to seek advice in relation to these proceedings from those foreign lawyers. Subject to rule 20.03 of the Federal Court Rules 2011, Prysmian and Nexans, and their foreign lawyers, would not be able to use the documents or the information contained in the documents or Mr A's identity in relation to other proceedings or potential proceedings in this jurisdiction or any other without leave of the Court.
218 Secondly, it was submitted that the respondents had not provided any evidence of the prejudice they would suffer if the information was not disclosed. In my view it was not necessary for them to do so. The respondents asserted that they would be unable to test Mr A's assertions without knowing his identity. The prejudice is obvious. In any event, it is for the ACCC to establish the existence of the privilege. It cannot say that the privilege exists because there is no prejudice to the respondents if they do not have access to the material.
219 Thirdly, Mr A submitted that by allowing Prysmian and Nexans to have access to the documents they would gain access not only to his identity as an informer but also the type of information he had provided to the ACCC. It is difficult to see how this submission has any substance. While disclosure of the name of an informer is one thing, and accessing the detail of that information is another, the ACCC has showed where it has relied on information provided by Mr A. Indeed it was obliged to do so. The application for leave to serve out of Australia and the application to set aside service are both interlocutory hearings. In both applications the ACCC has relied upon hearsay evidence provided in part by JPS and Mr A.
220 Section 75 of the Evidence Act 1995 (Cth) provides that the hearsay rule does not apply to evidence in an interlocutory hearing "if the party who adduces it also adduces evidence of its source". For that reason, Ms Jacquier was obliged to identify the source of the hearsay evidence she gave in her first and fourth affidavits.
221 In a broad way, the respondents are already aware of the nature of the information provided by Mr A. The documents might contain other information. However, it is difficult to see how the public interest would be harmed by the respondents having access to this additional information, which the ACCC says it relies upon. This is not a case where a police informer might be put at greater risk by allowing access to the content of the information sought to be relied upon in addition to the identity of the informer.
222 It appears that the information provided by Mr A is an important part of the ACCC's case. As such, disclosure of his identity at this stage may be in the words of Brooking J "… of substantial assistance to the [respondents] in combating the case for the [applicant]": Jarvie v The Magistrates' Court of Victoria at Brunswick at 90; Haydon v Magistrates Court at [30] per Doyle CJ. In my view, requiring the disclosure of Mr A's identity does not undermine or undervalue the importance of the public interest disclosure. This is not a case where the disclosure only has the potential to be of some assistance to the respondents: see Haydon v Magistrates Court at [30] per Doyle CJ.
223 For these reasons, the ACCC's claim that it is in the public interest for the documents and Mr A's identity to remain confidential must fail. It bears the onus of establishing that it is in the public interest for the information to remain confidential, and while the respondents have not pointed to any specific prejudice that they might suffer if they do not have access to Mr A's identity and the documents, I have reached the view that the information will enable the respondents to test the allegations made by the ACCC that it has a prima facie case.
224 As I am satisfied that it is in the public interest for the documents and Mr A's identity to be disclosed, it is not strictly necessary to deal with the other submissions put by the respondents. However, I should say that if I am wrong, and that the public interest in maintaining Mr A's identity outweighs the public interest in ensuring that the defendants receive a fair trial, the fact that Mr A's identity may have been disclosed in Brazil in connection with alleged cartel conduct would not mean that the public interest immunity is lost in this proceeding.
225 This Court is concerned both with protecting the anonymity of informers and encouraging potential future informers in this jurisdiction. In my view, it would undermine one of the main purposes of the immunity if disclosure in other countries of information the subject of public interest immunity in Australia could cause the informer to lose the protection of the immunity. In this respect it is important to appreciate that public interest immunity is not, strictly speaking, a privilege that can be waived. Rather, as Lord Reid said in R v Lewes Justices, Ex parte Secretary of State for the Home Department [1973] AC 388 at 400:
There is no question of any privilege in the ordinary sense of the word. The real question is whether the public interest requires that the letter shall not be produced and whether that public interest is so strong as to override the ordinary right and interest of a litigant that he shall be able to lay before a court of justice all relevant evidence.
See also Air Canada v Secretary of State for Trade [1983] 2 AC 394 at 436 per Lord Fraser of Tullybelton.
226 However, I add that the Brazilian proceedings tend to demonstrate the futility of the ACCC's application to keep Mr A's identity confidential. The respondents must know who Mr A is. Although they cannot use that information in these proceedings it cannot be expected that they can put that knowledge out of their corporate minds. But more importantly the ACCC must know that Prysmian and Nexans are likely to know who Mr A is. It is difficult to see why it would continue to seek to keep his identity confidential. Lastly, if the release of Mr A's identity might put him at risk in relation to civil and criminal proceedings in other jurisdictions, that has already occurred. Those other jurisdictions would probably know or be able to know his identity.