ACCC v Baxter Healthcare Pty Ltd

FEDERAL COURT OF AUSTRALIA

Australian Competition & Consumer Commission v Baxter Healthcare Pty Ltd

[2003] FCA 994

AUSTRALIAN COMPETITION & CONSUMER COMMISSION v BAXTER HEALTHCARE PTY LTD
N 1153 OF 2002

WHITLAM J
19 SEPTEMBER 2003
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 1153 OF 2002

BETWEEN:	AUSTRALIAN COMPETITION AND CONSUMER COMMISSION APPLICANT
AND:	BAXTER HEALTHCARE PTY LTD RESPONDENT
JUDGE:	WHITLAM J
DATE OF ORDER:	19 SEPTEMBER 2003
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.        The parties are to bring in short minutes of a proposed order to give effect to these reasons for judgment.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 1153 OF 2002

BETWEEN:	AUSTRALIAN COMPETITION AND CONSUMER COMMISSION APPLICANT
AND:	BAXTER HEALTHCARE PTY LTD RESPONDENT

JUDGE:	WHITLAM J
DATE:	19 SEPTEMBER 2003
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. The parties to this proceeding are in dispute about the terms on which the respondent (‘Baxter’) may inspect certain documents in the list filed by the applicant (‘the Commission’) pursuant to an order for discovery.  That order was made by consent on 6 February 2003.  It provided for the Commission to give discovery of defined categories of documents.  Inspection was to be ‘subject to the agreed confidentiality regime’ on the basis, amongst other things, that the Commission ‘may, until further order, mask the identity’ of complainants in relation to the contraventions alleged in the statement of claim.

2. The proceeding has been instituted by the Commission under ss 77 and 80 of the Trade Practices Act 1974 (‘the Act’) and alleges contraventions of ss 46 and 47 of the Act. Baxter has entered into contracts with each of the governments of, respectively, New South Wales in 1998, the Australian Capital Territory in 1999, South Australia in 2001, Western Australian in 2001, and Queensland in 2001, to supply certain sterile fluids and peritoneal dialysis products to health facilities funded by them. The contracts are for a period of five years, except in the case of Queensland where the contract is for a period of three years. They were all awarded after tender. The statement of claim alleges a number of different geographical markets for different permutations of the nominated products and names alleged competitors of Baxter in those markets. Baxter is alleged to have tendered for those contracts using a strategy of offering to bundle products.

3. It transpires that the ‘agreed confidentiality regime’ referred to in the order for discovery was anything but agreed.  Baxter’s solicitors (‘BDW’) had merely indicated in a letter dated 4 February 2003 that ‘we would be prepared to give interim undertakings to maintain the confidentiality of all documents identified by the [Commission] as confidential, until further order’.  On 28 February 2003 the Commission’s solicitor (‘the AGS’) wrote to BDW enclosing two versions, ‘A’ and ‘B’, of draft confidentiality undertakings for their consideration.  The AGS said:

   ‘……