ACCC v Warner Music Australia Pty Ltd - [2000] FCA 647

FEDERAL COURT OF AUSTRALIA
Australian Competition & Consumer Commission v Warner
Music Australia Pty Ltd [2000] FCA 647
AUSTRALIAN COMPETITION AND CONSUMER COMMISSION v
WARNER MUSIC AUSTRALIA PTY LIMITED (ACN 000 815 565) AND OTHERS
N 924 OF 1999
AUSTRALIAN COMPETITION AND CONSUMER COMMISSION v
UNIVERSAL MUSIC AUSTRALIA PTY LIMITED (formerly known as
PolyGram Pty Limited) (ACN 000 158 592) AND OTHERS
N 925 OF 1999
AUSTRALIAN COMPETITION AND CONSUMER COMMISSION v
SONY MUSIC ENTERTAINMENT (AUSTRALIA) LIMITED
(ACN 000 033 581) AND OTHERS
N 926 OF 1999
HILL J
11 MAY 2000
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY

BETWEEN:

AUSTRALIAN COMPETITION AND                  N 924 OF 1999
CONSUMER COMMISSION
APPLICANT

AND:

WARNER MUSIC AUSTRALIA PTY LIMITED
(ACN 000 815 565) AND OTHERS
RESPONDENTS

BETWEEN:

AUSTRALIAN COMPETITION AND                  N 925 OF 1999
CONSUMER COMMISSION
APPLICANT

AND:

UNIVERSAL MUSIC AUSTRALIA PTY LIMITED
(formerly known as PolyGram Pty Limited)
(ACN 000 158 592) AND OTHERS
RESPONDENTS

BETWEEN:

AUSTRALIAN COMPETITION AND                  N 926 OF 1999
CONSUMER COMMISSION
APPLICANT

AND:

SONY MUSIC ENTERTAINMENT (AUSTRALIA)
LIMITED (ACN 000 033 581) AND OTHERS
RESPONDENTS

JUDGE:

HILL J

DATE:

11 MAY 2000

PLACE:

SYDNEY

EX TEMPORE REASONS FOR JUDGMENT

Before the Court are motions brought by the Commission in each of the three matters in essence establishing a regime whereby documents tendered in one proceeding may be available for use in the other proceedings but subject to questions of confidentiality.
There are essentially two disputes between the parties. The first is that the Commission does not accept that it should be required or, for that matter, its officers, counsel or solicitors should be required to give undertakings. It is said they should not be required to do so because they are model litigants and also because s 70 of the Crimes Act 1914 (“the Act”) provides for an offence in the event of publication or communication by them of information.
The respondent, Universal Music, objects to documents being available to members of the Commission, the chief executive officer of the Commission and the executive general manager of the Commission. I am of the view, dealing with the second of those matters, that it may from time to time be necessary for the officers of the Commission named in paragraph 6 of annexure A to obtain instructions and that those instructions would necessarily have to come from those who were comprised in numbered paragraphs 1 to 3 of annexure A and that accordingly it is appropriate that those persons be able to be the recipients of information that may from time to time be communicated.
I am also of the view that while generally it is right that the government is, or at least should be, a model litigant, it does not follow that it is inappropriate for confidentiality orders to be imposed as a condition of a privilege being extended to the Commission that implied undertakings to the Court be dispensed with. The rule in Harmon v Home Office is an important rule…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2000] FCA 647
Decision Date: 11 MAY 2000

CaseChat Overview and Summary

The Australian Competition and Consumer Commission (ACCC) filed proceedings against Warner Music Australia Pty Ltd, Universal Music Australia Pty Limited, and Sony Music Entertainment (Australia) Limited in the Federal Court of Australia. The ACCC alleged that the respondents engaged in anti-competitive practices in the music industry, specifically in the distribution and sale of recorded music in Australia. The court was required to determine the appropriate scope of document disclosure and confidentiality in these proceedings.

The legal issues involved the extent to which documents tendered in one proceeding could be made available for use in the other proceedings, while maintaining confidentiality. The ACCC argued against requiring its officers, counsel, or solicitors to give undertakings, citing their status as model litigants and the existence of s 70 of the Crimes Act 1914, which criminalises the unauthorised disclosure of information. The respondents, however, objected to certain individuals within the ACCC receiving the documents.

The court found that it might be necessary for ACCC officers to obtain instructions from certain individuals within the Commission, making it appropriate for them to receive the relevant information. The court also noted that while the government should ideally be a model litigant, this did not preclude the imposition of confidentiality orders as a condition for extending privileges and dispensing with implied undertakings to the court. The court ruled that the requested undertakings, which were broader than the offence under s 70, served to emphasise the importance of not using the information for any purpose other than the litigation. The court concluded that these reasons did not justify not making the sought orders.

The court granted the orders sought in the notices of motion, with amendments as specified in a document marked "X", which would be filed with the court to reflect the orders made. No orders were made as to the costs of the motion.

Orders