REASONING
12 The period over which Jarra Creek's Amended Statement of Claim alleges that Amcor and Visy engaged in the contravening conduct is between May 2000 and July 2005. The group members represented by and including Jarra Creek are those persons and entities who purchased products during the period between 1 May 2000 and 1 May 2005. The Amended Statement of Claim alleges that from a date not later than 1 May 2000, Amcor and Visy supplied CFP to Jarra Creek and members of the representative group in the CFP market, and that from about January 2000 Amcor and Visy were in competition with each other. The Amended Statement of Claim also alleges that up to July 2005 Visy took no step to compete with Amcor in relation to the supply of CFP to one member of the group, namely Gillette Australia Pty Ltd, and thereby gave effect to a cartel arrangement.
13 Facts, circumstances and documents, even where occurring or made before or after the core period of alleged contravening conduct, may throw light on the nature and extent of conduct during that core period. Practical experience teaches that there may be plans, discussions and records leading up to the conduct, and that beyond the core period there may be a continuation of activities or a making of admissions in documents from which inferences can be drawn. The difficulty is to select a suitable period before and after the core period within which to require production of documents, particularly in a case such as the present where the volume of documents is likely to be extremely large. Moreover, there is force in the argument that for comparison purposes it is necessary to consider a 'clean period' before the alleged price fixing conduct began.
14 In this case it is appropriate to go beyond the period between January 2000 and July 2005 referred to in the pleadings. Having regard to the evidence as to the burden, nature and extent of discovery required, and balancing this against the needs expressed by Professor Rubinfeld to enable proper consideration of the effect of the alleged price fixing activity, I consider that an appropriate period for production is between 1 January 1998, which is two years prior to the alleged commencement of the conduct, and mid-2006. I am not satisfied at this stage that a period beginning in 1995 is appropriate or necessary for the purpose of ascertaining a 'clean period' or 'benchmark' by reference to which subsequent pricing standards and conduct can be evaluated.
15 Counsel for Amcor and Visy submit that, having regard to the heavy burden imposed by the extensive discovery in this matter, the further discovery of documents relating to market structure or behaviour should be deferred. The evidence regarding market structure, it is said, only concerns questions of causation and damage, and therefore it is not necessary to make the relevant documents available until after liability questions have been determined. Amcor and Visy submit that in class action cases, issues of quantum and damage are to be determined in relation to each specific class member, and that discovery in relation to those issues should be deferred until the antecedent question of liability is determined. The rationale to this approach is that documents should not be discovered where the necessity to produce such documents may not arise.
16 Professor Rubinfeld observed that material relating to market structure could facilitate an assessment of whether conditions in the market were conducive to the formation of a price fixing arrangement. If conditions were not conducive, it could be argued that it would be unlikely parties would reach any sort of cartel understanding.
17 I accept this reasoning. The documents as to market structure are relevant not only to causation and damage, but also to the liability issues. If the market conditions are such that a price fixing arrangement was not possible or viable, then it is less likely that there a price fixing arrangement would be entered into. In my view, there is a clear link between the material sought and a principal issue in the case concerning liability.
18 Although the final precise assessment of damages in respect of an individual group member must be determined having regard to its individual circumstances, there are often more general questions arising (such as causation, remoteness, and types of damage) which can be determined as common questions. In the present case, the application specifically states in paragraph [4(h)] that one of the common questions is the "correct measure of any damages which the Respondents may be liable … to pay to the Applicant and any Group Member". This does not mean that the exact amount of damages which may depend on individual circumstances is to be determined as a common question, but rather that there are common or overarching questions concerning damages more generally.
19 Nor does it necessarily follow that in every representative proceeding the determination of questions concerning damage will be deferred until after liability has been determined. Of necessity, the Court has adopted a flexible approach to complex representative litigation. For example, in McMullin v ICI Australia Operations Pty Ltd [1996]FCA 991, remoteness of loss and some questions pertaining to damages were determined as common questions. Accordingly, in the present case, even if the nature of the market resulted in only issues of causation and matters of damage being raised, it does not always mean that it is appropriate for common questions and discovery on these matters to be deferred. The reasons of Wilcox J in McMullin [1996]FCA 991 exemplify the particular complexity of representative actions and the need for flexible effective case management.
20 In my view, the material sought by way of discovery as to market structure may have a bearing on the question of liability, and production should not be deferred. Even if this conclusion is incorrect, it still does not follow that questions of market structure should be deferred until after liability questions have been determined. On closer examination it may be desirable as a matter of case management in this case to ensure that all common questions are resolved together.
21 Both Visy and Amcor submit that documents as to PPP are irrelevant because this case turns on behaviour in relation to CFP. Jarra Creek contends that the documents relating to PPP are relevant because, as is pleaded in paragraph [9B] of the Amended Statement of Claim, PPP is "the major physical input, by weight and cost, in CFP" and the major producers of PPP in Australia were related to or business units within Visy or Amcor, thereby having had a significant impact on the costs structure of CFP.
22 Paragraph [9B(d)(iii)] of the Amended Statement of Claim links PPP with CFP in relation to allegations concerning barriers to entry to the CFP market. This linkage is reinforced in paragraphs [12], [18(b)], [54(a)] and [100] of the Amended Statement of Claim. Paragraph [9B] alleges that Visy and Amcor not only have a major position with respect to CFP production and supply, but also with respect to the principal cost input into that product, namely PPP. It could be reasonably argued that this fact, if established, gives Amcor and Visy greater control of the input costs of CFP. On the face of the Amended Statement of Claim, documents concerning PPP are therefore relevant. In addition, it should be noted that Professor Rubinfeld referred to PPP as an item which would assist in deciding whether any CFP price rise occurred due to input cost variations or due to the alleged price fixing.
23 For these reasons, I am satisfied that documents relating to PPP as set out in the categories of discovery sought by Jarra Creek are relevant and should be produced subject to a variation in relation to the relevant period referred to in paragraph [14] above.
24 Visy objects to paragraph [9.2] of Jarra Creek's proposed categories to the extent that it seeks documents by reference to break-downs based on production facilities, regions, customer or industry segments and product categories. Visy contends that such detailed information has no relevance to issues in the proceedings. It also objects for similar reasons to category 9.2(c), which concerns financial analyses also involving detailed break-downs, and to category 9.2(d) on the ground that the reference to "indicator reports" is meaningless.
25 On the material presently before me I am not persuaded that the production of documents by reference to the detailed break-downs sought is appropriate or necessary at this stage. Neither am I persuaded that the financial analyses requested or the break-downs sought in relation to those analyses are appropriate for discovery. Furthermore, the expression "indicator reports" does not appear to describe or refer to any relevant documents. Accordingly, I will not require discovery of the break-down documents sought in category 9.2(c) and (d). In relation to the relevant period, I note in relation to these documents that Visy does not object to the period commencing on 1 January 1998 but says that it ought not to extend to 2006. For reasons given earlier, I consider that the appropriate period in the present case is between 1 January 1998 and mid-2006.