Australian Competition and Consumer Commission v BlueScope Steel Ltd (No 3)

The Australian Competition and Consumer Commission (ACCC) brought proceedings against BlueScope Steel Ltd, alleging that the company attempted to induce competitors to make arrangements or arrive at understandings that contained cartel provisions concerning the supply of flat steel products. The Federal Court of Australia was tasked with determining several evidentiary issues, including whether certain transcripts and documents were admissible under the Evidence Act 1995 (Cth). Specifically, the ACCC sought to admit transcripts of an examination of Mr Gent, BlueScope's former Sales Manager, as admissions of BlueScope. Additionally, the ACCC sought to introduce documents provided to them for informal merger clearance and evidence concerning BlueScope's formulation and circulation of a recommended resale price list. The court was also asked to rule on the admissibility of conclusory statements about competitors and statements expressing a witness's understanding of communications they were privy to.

The court considered whether the transcripts of Mr Gent's examination were admissible as admissions under s 87 of the Evidence Act. It examined whether Mr Gent had authority to make statements on behalf of BlueScope when the representations were made, and whether those representations related to matters within the scope of his employment. The court also assessed whether documents provided to the ACCC for informal merger clearance were prepared or obtained for the purpose of or in contemplation of litigation, potentially rendering them inadmissible under s 69(3) of the Evidence Act. Furthermore, the court considered whether conclusory statements about competitors and statements expressing a witness’s understanding of communications they were privy to were admissible under s 78 of the Evidence Act. The relevance of evidence concerning the formulation and circulation of a recommended resale price list by BlueScope was also evaluated. Lastly, the court considered whether evidence concerning handwritten notes and written statements signed by a current employee of BlueScope should be excluded under s 135 of the Evidence Act, despite the ACCC not calling the relevant employee as a witness.

The court held that the transcripts of Mr Gent's examination were admissible as admissions of BlueScope because it was reasonably open to find that Mr Gent had some ongoing responsibility, focus or concern with BlueScope CIPA’s distribution channel at the time of his examination, even though his primary responsibility had shifted to manufacturing. The court also ruled that documents provided to the ACCC for informal merger clearance were not prepared or obtained for the purpose of litigation, and thus were admissible. Conclusive statements about competitors and statements expressing a witness’s understanding of communications were deemed admissible under s 78 of the Evidence Act. Evidence concerning the formulation and circulation of a recommended resale price list by BlueScope was found to be relevant to the case. The court further determined that written statements signed by a current employee of BlueScope, containing admissions, should not be excluded under s 135 of the Evidence Act because the ACCC had not called the employee as a witness, and the examination in chief of a witness concerning a prior written statement, based on leading questions asked with leave of the Court, and the prior written statement, were admissible.

The court ordered that the transcripts of Mr Gent's examination, documents provided to the ACCC for informal merger clearance, conclusory statements about competitors, statements expressing a witness’s understanding of communications, and evidence concerning the formulation and circulation of a recommended resale price list by BlueScope, were admissible. Additionally, the court ruled that written statements signed by a current employee of BlueScope, containing admissions, were not to be excluded under s 135 of the Evidence Act, and that the examination in chief of a witness concerning a prior written statement, based on leading questions asked with leave of the Court, and the prior written statement, were admissible.