Australian Competition and Consumer Commission v Cement Australia Pty Ltd (No 2)

The Australian Competition and Consumer Commission (ACCC) brought proceedings against Cement Australia and its related entities, alleging anti-competitive conduct in the supply and acquisition of unprocessed fly ash and concrete-grade fly ash in south-east Queensland. The respondents sought non-publication orders in respect of documents produced by third parties under confidentiality regimes, and their own confidential documents incorporated within the ACCC’s proposed tender bundle. The third parties, including Sunstate and Millmerran, sought orders restricting the publication of the evidence on the basis that non-publication was necessary to prevent prejudice to the administration of justice. The respondents’ own application was supported by an affidavit from their general counsel and company secretary, Mr Constantine Gionis. The court had to determine whether non-publication of the documents was necessary to prevent prejudice to the administration of justice. The court considered the documents contained market-sensitive information, such as prices and costs paid and incurred by trade rivals, which disclosure would be damaging to the third parties. The court concluded that it was necessary in the administration of justice that the proceeding be tried without bringing about that result. In relation to the respondents’ own documents, the court found that the information was highly sensitive commercial information which, if disclosed, would be prejudicial to the Cement Australia group of companies. The court accepted that the information concerned was market-sensitive as between trade rivals and ought not to be disclosed. The court found that it was necessary in order to prevent prejudice to the administration of justice that a non-publication order be made. The court ordered that the applications for non-publication orders under s 50 of the Federal Court of Australia Act 1976 be adjourned for the submission of proposed orders.