Background
5 I will give a general description of the nature of the claim made by the ACCC against Nexans SA. A more detailed description may be found in previous judgments in this proceeding (Australian Competition and Consumer Commission v Prysmian Cavi E Sistemi Energia S.R.L. (No 4) (2012) 298 ALR 251; [2012] FCA 1323; Nexans SA RCS Paris 393 525 852 v Australian Competition and Consumer Commission [2013] FCA 192).
6 Nexans SA is a company incorporated in France and is the holding company of a large group of companies. One of its subsidiaries is Nexans France SAS ("Nexans France"), and it also has a subsidiary which operates in Australia, Nexans Australia Pty Limited.
7 The ACCC's allegations against Nexans SA are that it contravened s 45(2)(a)(i) or s 45(2)(a)(ii) or both of the Trade Practices Act 1974 (Cth), now the Australian Competition and Consumer Act 2010 (Cth), and one or more of the Competition Codes of the States of Australia and the Australian Capital Territory by making an arrangement or arriving at an understanding on 24 September 2003, described in the Further Amended Statement of Claim as the "Snowy Hydro Project Agreement". It is alleged that the other parties to the arrangement or understanding were Prysmian, Viscas Corporation and J-Power Systems Corporation ("JPS"). It is also alleged by the ACCC that Nexans SA contravened s 45(2)(b)(i) or s 45(2)(b)(ii) or both of the Trade Practices Act and the Codes in that in making the arrangement or arriving at the understanding, described as the Snowy Hydro Project Agreement, it gave effect to the A/R Cartel Agreement. That agreement is alleged to be an arrangement or understanding as at October 2001 between Nexans SA, (at that stage) a member or representative of the Pirelli group of companies, Viscas and (at that stage) Sumitimo Electric Industries. It is not necessary for me to set out the alleged provisions of the A/R Cartel Agreement (see paragraph 16 of the Further Amended Statement of Claim). The goods which are alleged to have been the subject of the arrangements or understandings were high voltage and extra high voltage land-based electrical cables and accessories, and medium voltage, high voltage and extra high voltage submarine electrical cables and accessories.
8 The ACCC alleges that Nexans SA's representatives in relation to the alleged conduct were Mr Jeanmarie Jay and Mr Alain Romand, and that the representatives of JPS included Mr Takeo Osada. The ACCC alleges that a number of emails passed between Mr Jay and Mr Osada.
9 As I have said, an order for standard discovery was made against each respondent in the period leading up to the trial.
10 On 10 February 2014, the ACCC brought an application for further and better discovery against Prysmian. A key contention made by the ACCC in the submissions on that application was that documents in the possession of a company related to Prysmian, Prysmian Powerlink S.r.L. ("PPL"), were in the control of Prysmian. Prysmian and PPL were subsidiaries of Prysmian S.p.A. At an earlier point of time, PPL was owned by Prysmian (directly and through a wholly owned subsidiary). I rejected that contention (Australian Competition and Consumer Commission v Prysmian Cavi E Sistemi Energia S.R.L. (No 8) [2014] FCA 376 ("Prysmian (No 8)")).
11 In Prysmian (No 8) I considered first, whether the documents were in the possession or custody of Prysmian. In that context, I said (at [14]-[15]):
... The applicant submits that I should infer that the documents are stored electronically and that I should infer that anyone with authority within the group had and has access to the documents by way of a computer terminal at the business address, which the companies shared. Insofar as the documents are held in hard copy, I am asked to infer that they are stored at the common premises of the companies and I am asked to infer that all companies within the energy business unit have access to them. If this submission is correct, it means that a large number of companies have access to the documents and possession or custody of them.
I do not think that the submission is correct. There is no evidence that the documents are stored electronically. Even if I should draw that inference, there is no evidence to support the proposition that they are stored in such a way that there is common access to them. The same may be said insofar as the documents are kept in hard copy. In other words, there is no evidence that a company in the group has unrestricted access to the documents of another company in the group. The relevant business and the documents relating to that business were transferred by the first respondent to PPL on 1 January 2008 and there is no evidence to contradict the assertion that the first respondent did not have possession or custody of the documents after that time.
12 I then turned to consider whether the documents were in the power of Prysmian. I identified the ACCC's submissions as follows (at [20]):
In support of its submission that the documents described in Part 3 of the list of documents, assuming there are such documents, are in the power of the first respondent, the applicant relies on the following matters. First, the first respondent and PPL are part of the Prysmian group of companies and they are both subsidiaries of Prysmian S.p.A. Before 1 January 2008, the documents were in the control of the first respondent and they were then transferred to its subsidiary, PPL, as part of a business transfer. The first respondent remained the holding company of PPL until sometime in 2012. They were and are part of the Prysmian energy business, and that is one business. The group's annual report refers to the companies as being under common control. Secondly, I am asked to infer that the documents of PPL are kept electronically in the same system as the first respondent's documents and that they can be accessed, either at the principal business address or one of the secondary business addresses. Thirdly, Mr Romeo occupies a controlling position in both the first respondent and PPL. The applicant also relies on the fact that, although Doyle CJ in Taylor did not agree with all of the reasoning of Hedigan J in Linfa Pty Ltd v Citibank Ltd [1995] 1 VR 643, he did not suggest that the result was wrong. The applicant submits that the result in that case supports its submission.
13 I then said (at [22]):
In my opinion, the applicant's arguments must be rejected. They involve a substantial exception to the doctrine of the separate legal identity of a company because, not only do they seek to equate a holding company and its subsidiary, but they seek to equate all the companies in a particular business unit of a group of companies. This case does not involve a one-person company, nor on the potential application of the alter ego doctrine. In my opinion, the separate corporate personality of the two companies must be recognised and the obligations of the directors of PPL to act in the best interests of that company acknowledged (Walker v Wimborne (1976) 137 CLR 1 at 6-7 per Mason J (as his Honour then was); Industrial Equity Limited and Others v Blackburn and Others (1977) 137 CLR 567 at 577 per Mason J (as his Honour then was); Federal Commissioner of Taxation v BHP Billiton Limited (2011) 244 CLR 325 at [61]-[64] per French CJ, Heydon, Crennan and Bell JJ). The statement in the annual report does not advance the applicant's argument (Taylor, at 441, per Doyle CJ). Even if it is appropriate to infer that the documents of the two companies are stored electronically, it is not appropriate to infer that the first respondent has the right to inspect them regardless of the wishes of the directors of PPL. Again, the same may be said insofar as the documents are kept in hard copy. Mr Romeo's dual capacities do not affect the position because he is not the alter ego of either company. I do not think the statement of Doyle CJ in Taylor that the decision in Linfa Pty Ltd v Citibank Ltd is, on the facts, consistent with this approach advances the applicant's argument. The facts in this case are different from those in Linfa Pty Ltd v Citibank Ltd.
14 On this application, counsel for the ACCC said that the ACCC did not challenge the correctness of my decision in Prysmian (No 8).
15 In the period before trial, the ACCC also considered that Nexans SA had not made proper discovery, and its solicitors sent correspondence to Nexans SA's solicitors raising various alleged deficiencies in discovery between August 2014 and May 2015. Nexans SA's solicitors responded to that correspondence. It is not necessary to set out the details.
16 The trial of this proceeding commenced on 13 July 2015. The ACCC called Mr Osada and tendered a number of documents. Prysmian did not lead any evidence. Nexans SA called Mr Patrick Noonan who is the senior corporate vice president, general counsel, secretary general and secretary of the board of directors of Nexans SA. After his evidence had been completed, an issue about the waiver of legal professional privilege by Nexans SA arose and that issue is the subject of my reasons in Australian Competition and Consumer Commission v Prysmian Cavi E Sistemi Energia S.R.L. (No 10) [2015] FCA 763. Before I delivered those reasons, the ACCC made the application which is the subject of these reasons.
17 Ordinarily, an application of this nature must be made well before trial. The ACCC acknowledged this, but submitted that the evidence of Mr Noonan in cross-examination made it clear that Nexans SA had not made proper discovery, and that although very late, the application should be considered on its merits.