Australian Competition & Consumer Commission v George Weston Foods Ltd

History of the litigation 3 The principal proceedings in this matter were commenced on 5 December 2002 by the Australian Competition and Consumer Commission ('the ACCC') against George Weston Foods Limited ('GWF') and, one of its executives, Mr Loneragan. By its application and statement of claim, each dated 5 December 2002, the ACCC alleged that, in contravention of s 45A of the Trade Practices Act 1974 (Cth) ('the TPA'), the respondents endeavoured to induce or attempted to induce, a business competitor to make an arrangement, or arrive at an understanding, to the effect that GWF and that competitor would increase their wholesale prices of wheaten flour; and that this proposed arrangement or understanding contained provisions that were to have the purpose, and were likely to have the effect, of fixing, controlling or maintaining the prices for wheaten flour. 4 Prior to its institution of the principal proceedings, that is to say on 23 and 24 August 2001, the ACCC issued notices under s 155 of the TPA to John Henry Pascoe, GWF's Chief Executive Officer and to GWF respectively. These notices required, inter alia, the production of certain documents to the ACCC. 5 On 29 August 2001 and 5 September 2001, GWF's solicitors informed the ACCC in writing that some of these documents attracted legal professional privilege; and that, although in ACCC v Daniels Corporation International (2001) 108 FCR 123 the Full Federal Court had decided that legal professional privilege was not a basis for refusing to provide documents required under a s 155 notice, an application for special leave to appeal from Daniels was pending in the High Court. The solicitors said that the documents required by the notice were being identified and copied, but added that neither Mr Pascoe nor GWF was 'waiving any privilege by producing documents under compulsion of a s 155 notice in circumstances where the current state of the law is that it must produce those documents'. 6 Privileged material was then produced to the ACCC. That material was the subject of extensive use by the ACCC in its investigations into GWF's affairs. 7 On 7 November 2002, the High Court allowed the appeal in Daniels Corporation International v ACCC (2002) 192 ALR 561; 77 ALJR 40, holding that s 155 of the TPA did not authorise the production of documents to which legal professional privilege attaches. 8 As has been mentioned, on 5 December 2002, the ACCC instituted these proceedings. 9 By amended notice of motion filed on 14 April 2003, GWF moved to restrain the ACCC from making use in these proceedings of documents protected by legal professional privilege which had been produced to the ACCC under s 155. 10 On 18 June 2003 for reasons then published, Conti J made the following orders on GWF's motion: First, his Honour declared that legal professional privilege and client legal privilege existed in respect of certain (identified) material. Secondly, his Honour ordered that, in certain respects (specified later in these reasons) the ACCC be restrained from - (a) referring to or adducing in evidence or examination certain material (Order 1(a)); and (b) from using certain material - in these proceedings. Conti J further reserved liberty to apply concerning the scope of relief in a context identified in his Honour's reasons (specified later in these reasons). 11 On 5 August 2003, the parties to the proceedings consented to his Honour making certain other orders (specified later in these reasons) to the effect that nothing in Order 1(a) of the orders made on 18 June 2003 prevented the ACCC from referring to (etc.) certain information or material in these proceedings. 12 On 29 August 2003 GWF, and on 12 November 2003 Mr Loneragan, filed notices of motion for orders for the summary dismissal of these proceedings. As mentioned, in this connection, GWF has served a notice to produce upon the ACCC, which now seeks to set the notice aside as having no legitimate forensic purpose. 13 In order to understand the issues that arise on the ACCC's present motion, it will be necessary to refer first to the case pleaded by the ACCC in the principal proceedings.

The case pleaded by the ACCC 14 By its statement of claim filed on 5 December 2003, the ACCC claimed, relevantly, as follows: · Goodman Fielder Pty Ltd ('Goodman Fielder'), GWF and Manildra Milling Pty Ltd ('Manildra Milling') competed with each other in the wholesale supply of wheaten flour throughout Australia. · In or about November 1999, each of Goodman Fielder and GWF was considering increasing its wholesale price of wheaten flour; and, at that time, Goodman Fielder informed Mr Loneragan, and GWF, that it so intended. · In or about mid to late November 1999 and in late November or early December 1999 Mr Loneragan informed Manildra Milling that GWF was proposing to increase its price, and requested Manildra Milling to co-operate with GWF by increasing its price. · Thereby, GWF, by Mr Loneragan, attempted to make an arrangement or arrive at an understanding with Manildra Milling, or attempted to induce Manildra Milling to enter such an arrangement or understanding with GWF containing provisions to the effect that each of GWF and Manildra Milling would increase its wholesale price. · This proposed arrangement or understanding contained provisions that had the purpose, and were likely to have the effect, of fixing, controlling or maintaining the prices for wheaten flour supplied, or to be supplied, by each of GWF and Manildra Milling within s 45A of the TPA. · The making or arriving at this proposed arrangement or understanding would also have constituted a contravention of s 45(2)(a)(ii) of the TPA.

The relief claimed by the ACCC in the principal proceedings 15 By its application filed on 5 December 2002, the ACCC claimed, relevantly, the following relief: · Orders against the respondents for pecuniary penalties. · In addition to declaratory relief, an injunction restraining GWF from making, attempting to make or inducing or attempting to induce the making or arriving at or giving effect to any contract, arrangement or understanding between competitors for the sale of wheaten flour containing a provision that has the purpose, or has or is likely to have the effect, of fixing, controlling or maintaining or providing for the fixing, controlling or maintaining of the prices offered or charged for such flour by competitors. · Similar relief was also sought against Mr Loneragan. · Other, consequential, relief was also sought.

The summary dismissal and strike out motions 16 As mentioned, each respondent has moved for summary dismissal of the ACCC's principal proceedings and for the striking out of the ACCC's statement of claim on the following grounds (which were developed in argument by GWF, as will appear below): · Any use by the ACCC of its application or of its statement of claim is contrary to the orders made by Conti J. · The ACCC's application and statement of claim 'hereby constitute an abuse of process of the Court'. 17 The respondents rely upon O 20 r 2 as the basis for summarily dismissing the ACCC's application. That rule provides, inter alia, that where it appears to the Court that a proceeding is an abuse of process, the Court may order its dismissal generally (or in part) (O 20 r 2(1)(c)). 18 In respect of the ACCC's statement of claim, the respondents rely upon O 11 r 16, providing, inter alia, that where a pleading is an abuse of process, the Court may order that the whole or part of the pleading be struck out. 19 In addition, each respondent has also applied for such further and other orders, directions or relief as the Court thinks fit. 20 In order to understand the basis for these summary dismissal and strike out motions, reference needs to be made to the nature of the application made by the respondents to Conti J and to his Honour's reasons.

GWF's application to Conti J 21 As mentioned, in April 2003 GWF filed an amended notice of motion seeking the following relief: '1. The Applicant be restrained from referring to or adducing in evidence or examination in these proceedings the material identified in paragraph 5 of the affidavit of Wendy Wilson Peter sworn on 20 February 2003. 2. The Applicant be restrained from referring to or adducing in evidence or examination in these proceedings any material that: (a) in any way refers to the Privileged Material or the information contained in that material; (b) was created with the use of the Privileged Material or Privileged Information; or (c) was based on or in any way derived from, or influenced or affected by, the Privileged Material or the Privileged Information. 3. The Applicant be restrained from directly or indirectly using, disseminating, communicating, referring to or making use of in relation to these proceedings: (a) any of the Privileged Material or Privileged Information; (b) any material that in any way refers to the Privileged Material or Privileged Information; (c) any material that was created with the use of the Privileged Material or Privileged Information; and (d) any material that was based on or in any way derived from, or influenced or affected by, the Privileged Material or Privileged Information. 4. The Applicant identify and destroy: (a) all copies of the Privileged Material in its possession, custody or control; (b) all documents and records (including electronic records) in its possession custody or control that in any way directly or indirectly refer to the Privileged Material or the Privileged Information; (c) all documents and records (including electronic records) in its possession, custody or control that were created with the use of the Privileged Material or Privileged Information; and (d) all documents and records (including electronic records) in its possession, custody or control that were based on or in any way derived from, or influenced or affected by, the Privileged Material or Privileged Information. 5. The Applicant identify all Commissioners and Commission staff and legal advisers who have had any knowledge of the Privileged Material and/or Privileged Information and must ensure that those persons are: (a) no longer involved in these proceedings in any capacity; (b) no longer involved in any further or additional investigation by the Applicant involving similar allegations against the First and Second Respondents; and (c) instructed in writing not to discuss or refer to or otherwise disseminate any of the Privileged Material or Privileged Information. 6. The Applicant file and serve on the First Respondent on or before 2 May 2003 an affidavit listing the documents referred to in Order 4 and listing the Commissioners and Commission staff referred to in Order 5. 7. Such further and other orders, directions or relief as the court thinks fit.' 22 In his reasons, Conti J said: '[24] It was then contended by GWF that the appropriate relief to be granted, in circumstances where privileged or otherwise confidential information has been unlawfully obtained, should be formulated in accordance with the principles and forms of relief enumerated by Campbell J in AG Australia Holdings Ltd v Burton [2002] NSWSC 170 and also at 454, a case involving breach of a duty of confidentiality owed to the plaintiff by the voluntary provision of material in a witness statement concerning certain litigation. GWF submitted that reference by Campbell J to Lord Ashburton v Pape [1913] 2 Ch 469 indicated that the principles concerning the appropriate relief apply as much to privileged documents as they do to other kinds of confidential information. It was emphasised that GWF had sought orders to similar effect, on the basis that ACCC is not entitled to retain any benefit it may have received, or may in the future receive, from its access to GWF's privileged material. Consequently, so GWF's submissions continued, such orders should require "at the very least" the destruction of first, all copies of the privileged documents, secondly, any notes or memoranda which contain material derived from those documents, and thirdly the transcripts of examinations or interviews in relation to which (on ACCC's express concession) ACCC had made use of all such documents. It was further contended that GWF was entitled to an order preventing ACCC, and its Commissioners, employees and legal advisers, having knowledge of the information contained in the privileged material, from being involved in or consulted in relation to, the subject matter of the proceedings against GWF.' 23 His Honour later added: '[59] The ... orders [sought by GWF] are modelled on the relief granted by Campbell J in AG Australia Holdings Ltd to which brief reference has earlier been made. In that case an employee of AG Australia Holdings Ltd had breached his duty of confidentiality owed to his employer by voluntarily providing material, for compilation of a witness statement, to a firm of solicitors acting on behalf of an applicant in representative proceedings in the Federal Court of Australia brought against his employer. At (215) Campbell J said "now that Mr Burton has talked with MBC and provided a draft statement, MBC is in the situation where it has information which it should never have had. Conscionable behaviour on its part requires that it give up the information it should not have had, and nor, in the future, obtain any benefit from having once had that information". Later (at 218) Campbell J held that "Mr. Burton is in breach of his contract, and MBC is, at least after absorbing this judgment, knowingly in receipt of the fruits of that breach of contract. It is not in accordance with equity's approach in giving remedies to allow the wrongdoer to retain the fruits of wrongdoing, on the ground that the plaintiff will not thereby be any worse off, unless it is very clearly the case that the granting of relief would be futile". [60] In considering the scope of the relief sought, I bear in mind that the present application does not of course involve any claim giving rise to equitable remedies of the scope formulated in AG Australia Holdings. The context of the present proceedings involves the kind of considerations attending to investigations undertaken purportedly in the public interest, and not merely commercial considerations between two litigating parties. I think that the relief framed by GWF is unacceptably wide in scope. Moreover I bear in mind that ACCC as a Commonwealth agency assumes the mantle of a "model litigant" in its prosecution of proceedings for infringement of the TP Act (Scott v Handley (1999-2000) 58 ALD 373 at [43]). I have modified the text of the relief framed by GWF, but will grant liberty to apply in the event that the orders I have framed, for example in the view of the docket judge, operate to produce for instance impracticality in particular circumstances.'

The orders made by Conti J in June 2003 24 His Honour then made these orders: '1. The Applicant be restrained from referring to or adducing in evidence or examination in these proceedings any material that: (a) refers to the Privileged Material or the information contained in that material; (b) was created with the use of the Privileged Material; or (c) was based on or derived from the Privileged Material. 2. The Applicant be restrained from using, in relation to these proceedings: (a) any of the Privileged Material; (b) any material that refers to the Privileged Material; (c) any material that was created with the use of the Privileged Material; and (d) any material that was based on or derived from the Privileged Material. 3. The Applicant to pay the First Respondent's costs of the proceedings the subject of the Notice of Motion filed by the First Respondent. 4. The parties have liberty to apply on 3 days notice concerning the scope of relief as contemplated in paragraph 60 of these Reasons for Judgment.'

The clarification of these orders in August 2003 25 As has been said, on 5 August 2003, the parties consented to the following, inter alia, orders being made by Conti J: '1. Nothing in Order 1(a), of the orders made on 18 June 2003, prevents the Applicant from referring to, adducing in evidence or examination nor using in relation to these proceedings any information or material created with the use of or based on or derived from information or material other than: a) the Privileged Material; and b) material or information created with the use of or based on or derived from the Privileged Material. 2. material or information created with the use of or based on or derived from the Privileged Material.'

GWF's arguments in support of its summary dismissal and strike out motions 26 Before describing the documents sought by GWF from the ACCC, it is necessary to understand from GWF's arguments in support of its summary dismissal and strike out motions how, in its submission, GWF contends that its notice to produce serves a legitimate forensic purpose. 27 In its outline of argument, GWF submits: '5. The factual issue between the parties is whether the Statement of Claim and Application in these proceedings were created with the use of the Privileged Material, or were based on or derived from the Privileged Material. 6. This is a matter on which the solicitor for the ACCC who drafted the Statement of Claim and Application has already made some admissions. Before Conti J on 14 April 2003, Mr Rami Greiss was cross-examined to the following effect (see Exhibit WWP-17 to the affidavit of Ms Peter sworn 27 August 2003): And may we take it you made use in preparing the application and statement of claim of, among other things, the three documents over which Mr Pascoe and George Weston Foods are claiming privilege in these proceedings? - I can't say that I used those documents directly in the preparation of the statement of claim and application. I see, but indirectly you made use of those documents? - That's quite possible. Well, it is true isn't it? - I had regard to the information in those documents, yes. Yes, and in that sense you made use of the three documents over which Mr Pascoe and George Weston Foods are claiming privilege when you were preparing the application and statement of claim, isn't that right? - Yes. Thank you. And those three documents over which privilege is claimed by George Weston Foods and Mr Pascoe were documents that were used in the examinations and interviews conducted by the ACCC in relation to these proceedings? - I can't say that they were used in relation to all interviews conducted by the ACCC in relation to these proceedings but in relation to some. Well, in your affidavit you make clear don't you that the three documents or information derived from them were used to ask questions first of Mr Pascoe, do you agree with that? - Yes. Secondly of Mr Loneragan, do you agree with that? - Yes. Thirdly of Mr McDowell, correct? - Yes. Fourthly of Mr Mackay, correct? - Yes. Fifthly of Mr Faddy, is that correct? - Yes. And also in the second interview conducted with Mr Pascoe, is that correct? - Yes. And it is those examinations or interviews which you used whether directly or indirectly in your work in preparing the application and statement of claim, is that right? - Yes."' 7. Mr Greiss has sworn a further affidavit on 2 October 2003 concerning the material used by him in drafting the allegations of fact in the Statement of Claim. GWF proposed to cross-examine Mr Greiss in relation to that affidavit. 8. It will be contended by GWF that Mr Greiss made both direct and indirect use of the Privileged Material in drafting the Statement of Claim and Application and in obtaining the approval of the ACCC Enforcement Committee and/or the ACCC Commissioners to commence these proceedings. The use relates to the critical factual allegations in paragraphs 11-15 of the Statement of Claim. 9. The orders made by Conti J were intended to deprive the ACCC of the benefit it may have had from the production of the Privileged Material pursuant to the section 155 Notices. The conduct of the ACCC, in continuing to rely on a pleading which was drafted with the use of the Privileged Material, breaches Order 2 made by Conti J on 18 June 2003. Accordingly, the ACCC is seeking to use the Court's process in a way which the Court had ordered the ACCC not to do. 10. GWF invites the ACCC to discontinue the proceedings pursuant to Order 22 rule 2. If it does so, the ACCC will have the benefit of Order 22 rule 7. The only terms which GWF seeks to have imposed on such a discontinuance are that (a) the ACCC pay GWF's costs of the proceedings, and (b) the orders of Conti J of 18 June 2003 (as varied on 7 August 2003) continue to apply in relation to any new proceedings which the ACCC may commence or consider commencing. 11. If the ACCC does not discontinue the proceedings, the Statement of Claim should be struck out pursuant to Order 11 rule 16, and the Application should be dismissed or stayed pursuant to Order 20 rule 2.' (Emphasis added.) 28 (By O 22 r 7, it is provided that - 'A discontinuance under this Order as to any cause of action shall not, subject to the terms of any leave to discontinue, be a defence to a proceeding for the same, or substantially the same, cause of action.')

GWF's Notice to Produce 29 This notice seeks the following documents: '1. All documents addressed to the ... (ACCC) Enforcement Committee and/or the ACCC Commissioners which recommend the commencement of these proceedings against the First and Second Respondents. 2. All records of meetings of the ACCC Enforcement Committee which refer to any recommendation or decision to commence these proceedings against the First and Second Respondents. 3. All records of meetings of the ACCC Commissioners which refer to any recommendation or decision to commence these proceedings against the First and Second Respondents.'

The ACCC's arguments in opposing GWF's summary dismissal and strike out arguments 30 In order to understand the basis upon which the ACCC contends that GWF's notice to produce is not for a legitimate forensic purpose, it will be necessary to refer to the ACCC's arguments relevantly as follows: '6. In the Applicant's submission, the First Respondent's motion should not succeed for three reasons, any one of which is sufficient to dispose of this application. 7. First, there is nothing on the face of Conti J's orders nor in his judgment which suggests that the orders apply to the Application or Statement of Claim. On the contrary, the orders seek only to regulate conduct within the proceedings rather than the institution or maintenance of the proceedings themselves. For this reason alone, in the Applicant's submission, the First Respondent's Notice of Motion should be dismissed. 8. Secondly, even if it is accepted that Conti J's orders in some way apply to the institution or maintenance of the proceedings themselves, the fact remains that neither the Application nor the Statement of Claim "use" the Privileged Material. Each of the relevant core allegations in the Statement of Claim (paragraphs 11 to 15) use non-Privileged Material as set out in the Schedule to these submissions. Indeed, it will be seen that in the two critical paragraphs, namely paragraphs 14 and 15, the conversations particularised are drawn directly from a statement of Mr John Gary Honan dated 14 August 2001. As the attached Schedule makes clear, the allegations in the Statement of Claim are a "use" of the non-Privileged Material, not the Privileged Material. 9. Further, to the extent that the foundation for paragraphs 13 and 14 of the Statement of Claim is transcript of s.155 examinations, the relevant portions of the transcript are not in some way derived from the Privileged Material, in the sense that the context of the questioning makes clear that the examiner did not base his questions on any knowledge he had of the Privileged Material. As such, it cannot, contrary to what the First Respondent alleges, be said that there has been an "indirect" use of the Privileged Material. For example, the allegation in paragraph 14 of the Statement of Claim is particularised in part by noting that a Mr Loneragan made a telephone call from a public phone box. The evidence that the call was made from a public phone box was taken from the s.155 examination of Marvin Weinman as follows: "WHITE: Do you know Mr Loneragan, Paul Loneragan? WEINMAN: Yes, I do. WHITE: What are the circumstances in which you know him? WEINMAN: When I arrived at George Weston Foods, and I can't recall whether it was just before I arrived or subsequent to my actually assuming the chair, I was advised by Mr Pascoe that Mr Loneragan had been the previous divisional chief executive of the milling division and that his services had been terminated with the company. WHITE: Did he tell you why they'd been terminated? WEINMAN: Yes, he did? WHITE: What did he say to you? WEINMAN: He said that Mr Loneragan had made a phone call from a public phone box to the son of Dick Honan and that the company had carried out a thorough investigation and considered that he may have been involved in price fixing." 10. The examiner's open‑ended questions do not use the Privileged Material. On the contrary, any person in the position of the examiner could reasonably be expected to ask general and open‑ended questions as to whether a person knew another person and in what circumstances he came to know of him. 11. In any case, Conti J's Orders do not operate to prohibit an "indirect" use of the Privileged Material. This is made clear by the fact that the orders Conti J made were far narrower in scope than the relief which had been sought by the First Respondent, thus indicating that Conti J intended that the prohibition on "uses" of Privileged Material was a confined one. In this regard, the First Respondent sought an order that: "The Applicant be restrained from directly or indirectly using, disseminating, communicating, referring to or making use of in relation to these proceedings: (a) any of the Privileged Material or Privileged Information; (b) any material that in any way refers to the Privileged Material or Privileged Information; (c) any material that was created with the use of the Privileged Material or Privileged Information; and any material that was based on or in any way derived from, or influenced, or affected by, the Privileged Material or Privileged Information." (underlining added) 12. However, Conti J concluded that the relief sought by the first respondent was "unacceptably wide in scope" (at [60]). The fact that Conti J determined not to use any of the words underlined above is significant because it indicates that his Honour intended the word "use" to mean a "direct" use. 13. Thirdly, the First Respondent's application seems to be grounded on the basis that mere awareness or knowledge of the contents of the Privileged Material amounts to a "use" of the Privileged Material in the sense proscribed by Conti J's Orders. In this regard, paragraph 3 of the affidavit of Ms Peter sworn on 27 August 2003 relies on the following evidence given by Rami Greiss before Conti J on 16 April 2003 (reproduced in Exhibit WWP-17): MR JACKMAN: Mr Greiss, you participated did you not in the preparation of the application and statement of claim in these proceedings? ‑ Yes, I did. And you provided the certificate of legal representative that was annexed to the statement of claim, did you not? ‑ Yes, I did. ... And may we take it you made use in preparing the application and statement of claim of, among other things, the three documents over which Mr Pascoe and George Weston Foods are claiming privilege in these proceedings? ‑ I can't say that I used those documents directly in the preparation of the statement of claim and application. I see, but indirectly you made use of those documents? - That's quite possible. Well, its true isn't it? - I had regard to the information in those documents, yes. Yes, and in that sense you made use of the three documents over which Mr Pascoe and George Weston Foods are claiming privilege when you were preparing the application and statement of claim, isn't that right? ‑ Yes." 14. Yet, a fair reading of that evidence shows nothing more than Mr Greiss was aware of, and had regard to, the contents of the Privileged Material. However, that mere awareness or knowledge of the Privileged Material is not a "use" of the Privileged Material within the meaning of Conti J's Orders is clear for two reasons. First, there is nothing on the face of Conti J's Orders which can be construed as equating mere knowledge of the Privileged Material with "use" of that material. Secondly, that Conti J did not intend his orders to have that meaning is clear when regard is had to the fact that Conti J also refused to make orders sought by the First Respondent that the Applicant identify all Commissioners, Commission staff, and legal advisers with any knowledge of the Privileged Material and ensure that they have no further involvement in the proceedings. In refusing to make this order, Conti J obviously accepted that mere knowledge of the content of the Privileged Material did not mean that the relevant officers "used" that Privileged Material. 15. Finally, it is submitted that the construction and application of Conti J's Orders in the way contended for by the First Respondent would lead to absurd results. If it were the case that Conti J's orders operate in the manner contended for by the First Respondent and the Statement of Claim was struck out, then it would be a simple matter to provide all the non-Privileged Material to a new legal team which would commence the matter again with pleadings in the same terms.' (Emphasis added.)

Reasoning 31 As has been said, it is common ground that, in principle, the test here is whether the production of the documents sought can serve a legitimate forensic purpose. However, as was raised in the course of argument, the parties' submissions, on both sides, have proceeded on the footing that Conti J's orders were absolutely final, rather than interlocutory. Being interlocutory, they were capable of variation by another Judge. That Judge could, for instance, discharge those orders and instead enjoin certain ACCC officers from participating in the proceedings (etc.) as was held in, for example, AG Australia Holdings Ltd v Burton [2002] NSWSC 170, above, at [221] (cf. e.g. PhotoCure ASA v Queen's University at Kingston (2002) 56 IPR 86). Moreover, Conti J in his reasons specifically reserved liberty to apply. 32 At the same time, in their respective submissions, again as was noted in argument, both parties appear to contemplate the ultimate (but not immediate) possibility of a variation of Conti J's orders so that (as his Honour specifically contemplated) the matter could progress in a practical way. 33 The result, in my view, is that the present motion is proceeding upon a feigned issue. The real issue here, in my opinion, is that, upon the impracticability of the matter proceeding upon the terms of the orders made by Conti J becoming evident, the first question for determination by this Court is whether his Honour's orders ought now to be varied. 34 Accordingly, I will next hear the parties on this question, including the question whether, absent any such application by a party, the Court should, of its own motion, move so to vary the interlocutory orders now in existence.

Orders 35 Accordingly, the ACCC's motion is stood over for further directions at a date to be fixed. I certify that the preceding thirty-five (35) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Acting Chief Justice Beaumont.

Counsel for the Applicant: Mr A Robertson SC Ms N L Sharp

Solicitor for the Applicant: Australian Government Solicitor

Counsel for the First Respondent: Mr I M Jackman SC

Solicitor for the First Respondent: Allens Arthur Robinson

Counsel for the Second Respondent: Mr A I Tonking

Solicitor for the Second Respondent Thomson Playford

Date of Hearing: 14 November 2003

Date of Judgment: 19 November 2003