Australian Competition and Consumer Commission v Pratt

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FEDERAL COURT OF AUSTRALIA

Australian Competition and Consumer Commission v Pratt [2008] FCA 1373

AUSTRALIAN COMPETITION AND CONSUMER COMMISSION v RICHARD PRATT

VID 443 of 2008

RYAN J
9 SEPTEMBER 2008
MELBOURNE


IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY

VID 443 of 2008

BETWEEN:

AUSTRALIAN COMPETITION AND CONSUMER COMMISSION
Prosecutor

AND:

RICHARD PRATT
Defendant

JUDGE:

RYAN J

DATE OF ORDER:

9 SEPTEMBER 2008

WHERE MADE:

MELBOURNE

THE COURT ORDERS THAT:

1.The defendant have leave further to amend each of the subpoenas served on the prosecutor (“the ACCC”), the Commonwealth Director of Public Prosecutions (“the CDPP”) and the Australian Government Solicitor (“the AGS”) by substituting in the definition of “relevant period” appearing therein for the phrase “the period between 22 November 2004 and 19 June 2008”, the phrase “the period between 26 July 2005 and 19 June 2008.”

2.The defendant be relieved from the need to serve on any of the ACCC, the CDPP, and the AGS each of the subpoenas respectively addressed to those entities and amended pursuant to the leave granted by paragraph 1 of this Order.

3.Each of paragraphs 4, 5 and 9 of the said subpoenas respectively addressed to the ACCC, the CDPP and the AGS be set aside.

4.The defendant have leave to amend each of the subpoenas respectively addressed to Graeme Samuel (“Samuel”) and Robert Alexander (“Alexander”) and filed herein on 7 July 2008 by inserting in paragraph 1 thereof after the word “recordings” the words “created or coming into existence between 26 July 2005 and 19 June 2008”.

5.Each of sub-paragraphs 1(a) and (b) of the said subpoenas respectively addressed to Samuel and Alexander be set aside.

6.Paragraphs 4, 5, 7, 8 and 10 of the amended subpoena addressed to Amcor Ltd (“Amcor”) dated 27 August 2008 be set aside.

7.The ACCC, the CDPP and the AGS by 30 September 2008 produce into the custody of the Court the documents described in paragraphs 1, 2, 4, 6, 7 and 8 of the subpoenas respectively addressed to those entities as amended in accordance with paragraph 1 of this Order.

8.Samuel and Alexander by 30 September 2008 produce into the custody of the Court the documents described in sub-paragraphs 1(c) of each of the subpoenas respectively addressed to those persons as amended in accordance with paragraph 4 of this Order.

9.Each of the ACCC, the CDPP, the AGS, Samuel and Alexander by 2 October 2008 provide to the Defendant a list of each of the documents produced in accordance with paragraphs 7 and 8 of this Order over which or part of which it or he maintains a claim for legal professional privilege stating the basis of each such claim of privilege.

10.In the event that the defendant challenges any claim for legal professional privilege made in accordance with paragraph 9 of this Order the party or person claiming such privilege file and serve by 9 October 2008 any evidence in support of its or his objection to the inspection by the defendant of…

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Details
Case
[2008] FCA 1373
Decision Date

CaseChat Overview and Summary

In the Federal Court of Australia, the Australian Competition and Consumer Commission (ACCC) and others sued Pratt. The case involved a complex web of civil proceedings, subpoenas, and disputes over the scope and limits of document production. Pratt sought to amend subpoenas served on various entities, including the ACCC, the Commonwealth Director of Public Prosecutions (CDPP), the Australian Government Solicitor (AGS), and others, to narrow the scope of the requested documents. The legal issues before the court were whether the subpoenas were too broad and whether they exceeded the permissible scope for discovery in the context of the ongoing litigation.

The court considered the purpose of the subpoenas and the need for specificity in requests for documents. It found that some of the subpoenas were indeed overly broad, requesting documents that were not relevant to the specific legal issues at hand. The court emphasized the importance of balancing the rights of the parties to access relevant information with the need to protect against undue burden or invasion of privacy. As a result, the court set aside certain paragraphs of the subpoenas that were deemed too wide-ranging. However, the court allowed Pratt to amend the subpoenas to narrow their scope, ensuring they targeted only those documents necessary for the litigation.

The court's orders included specific directions for the amendment of the subpoenas, setting aside certain paragraphs that were too broad, and allowing the production of documents that met the revised criteria. The court also made orders regarding the timing and conditions for document inspection and the handling of claims of legal professional privilege. The costs associated with the motions and compliance with the subpoenas were reserved, and liberty was reserved for any party to apply for further orders. This decision underscores the importance of precision in legal discovery and the court's role in ensuring that the process is fair and efficient.

Orders

Orders of the court

1. The defendant have leave further to amend each of the subpoenas served on the prosecutor (“the ACCC”), the Commonwealth Director of Public Prosecutions (“the CDPP”) and the Australian Government Solicitor (“the AGS”) by substituting in the definition of “relevant period” appearing therein for the phrase “the period between 22 November 2004 and 19 June 2008”, the phrase “the period between 26 July 2005 and 19 June 2008.”

2. The defendant be relieved from the need to serve on any of the ACCC, the CDPP, and the AGS each of the subpoenas respectively addressed to those entities and amended pursuant to the leave granted by paragraph 1 of this Order.

3. Each of paragraphs 4, 5 and 9 of the said subpoenas respectively addressed to the ACCC, the CDPP and the AGS be set aside.

4. The defendant have leave to amend each of the subpoenas respectively addressed to Graeme Samuel (“Samuel”) and Robert Alexander (“Alexander”) and filed herein on 7 July 2008 by inserting in paragraph 1 thereof after the word “recordings” the words “created or coming into existence between 26 July 2005 and 19 June 2008”.

5. Each of sub-paragraphs 1(a) and (b) of the said subpoenas respectively addressed to Samuel and Alexander be set aside.

6. Paragraphs 4, 5, 7, 8 and 10 of the amended subpoena addressed to Amcor Ltd (“Amcor”) dated 27 August 2008 be set aside.

7. The ACCC, the CDPP and the AGS by 30 September 2008 produce into the custody of the Court the documents described in paragraphs 1, 2, 4, 6, 7 and 8 of the subpoenas respectively addressed to those entities as amended in accordance with paragraph 1 of this Order.

8. Samuel and Alexander by 30 September 2008 produce into the custody of the Court the documents described in sub-paragraphs 1(c) of each of the subpoenas respectively addressed to those persons as amended in accordance with paragraph 4 of this Order.

9. Each of the ACCC, the CDPP, the AGS, Samuel and Alexander by 2 October 2008 provide to the Defendant a list of each of the documents produced in accordance with paragraphs 7 and 8 of this Order over which or part of which it or he maintains a claim for legal professional privilege stating the basis of each such claim of privilege.

10. In the event that the defendant challenges any claim for legal professional privilege made in accordance with paragraph 9 of this Order the party or person claiming such privilege file and serve by 9 October 2008 any evidence in support of its or his objection to the inspection by the defendant of each relevant document or part of such document.

11. In the event that none of the ACCC, the CDPP, the AGS, Samuel or Alexander objects to the inspection by the defendant of any of the documents referred to in paragraphs 7 and 8 of this Order, it or he should provide a list of those documents to the Court and the defendant by 2 October 2008 and the defendant shall have leave to inspect and copy the documents referred to in that list on condition that such documents be returned to the Court by 4.00 pm on 9 October 2008.

12. Any dispute about the right of the defendant to inspect any of the documents referred to in paragraph 9 of this Order be heard on a date and at a time to be fixed by the docket Judge.

13. These orders are made without prejudice to the right of the defendant to seek the issue of further subpoenas seeking the production by all or any of the ACCC, the CDPP, the AGS, Samuel, Alexander and Amcor of such documents as the defendant may be advised.

14. The costs of all parties, persons and entities affected by this Order of and incidental to the motions on notice dated 31 July 2008 and 26 August 2008 and of complying with any of the subpoenas referred to herein be reserved.

15. Liberty be reserved to any party, person or entity affected by this Order to apply on not less than 48 hours notice in writing to each party, person or entity affected by such application.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

RYAN J
As pointed out at [34] of these reasons, the implementation of the ACCC’s leniency policy in relation to Amcor required its continued co-operation in the prosecution of the civil proceedings against Visy. Amcor’s agreement to provide that co-operation was likely to be productive of voluminous procedural or machinery communications between it, Jones and Brown and the ACCC or the CDPP in relation to those civil proceedings. However, it is not “on the cards” that those communications would assist Pratt in imputing an abuse of process or an abuse of power to the ACCC or in impugning Jones’ credit in relation to his alleged meeting with Pratt at the All Nations Hotel. Because of this transgression beyond what might conduce to the achievement of one or other of the forensic purposes, this paragraph must also be set aside. Nevertheless, that will again be done without prejudice to Pratt’s right to issue a fresh subpoena containing an appropriately circumscribed description of documents containing successive drafts or proofs of evidence to be given by Jones or Brown in the civil proceedings in this Court numbered VID 1650 of 2005.Conclusion For the reasons which I have endeavoured to explain, I shall grant leave to Pratt further to amend, in the manner described at [30] above, each of the subpoenas respectively addressed to the ACCC, the CDPP and the AGS. Paragraphs 4, 5 and 9 of each of those subpoenas must be set aside and there will be directions for compliance with what remains of each such subpoena. Paragraphs 4, 5, 7, 8 and 10 of the amended subpoena to Amcor will also be set aside. As well, there will be leave to amend the subpoenas addressed to Samuel and Alexander, sub-paragraphs 1(a) and (b) of each of which will be set aside. I shall give directions for compliance with sub-paragraph 1(c) of each of those subpoenas, conforming generally with the directions to be given in respect of the subpoenas to the ACCC, the CDPP and the AGS. The orders made today in respect of each of the subject subpoenas will be without prejudice to Pratt’s right, if so advised, to issue a fresh subpoena to any of the ACCC, the CDPP, the AGS, Samuel, Alexander and Amcor. The costs of all parties, persons and entities affected by these orders and of complying with the subpoenas will be reserved and there will be general liberty to apply.

Ratio Decidendi

Legal Principle Established

Established by: RYAN J

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