Australian Competition and Consumer Commission v Pratt (No 4)
[2009] FCA 416
•24 April 2009
FEDERAL COURT OF AUSTRALIA
Australian Competition and Consumer Commission v Pratt (No 4) [2009] FCA 416
AUSTRALIAN COMPETITION AND CONSUMER COMMISSION v RICHARD PRATT
VID 443 of 2008
RYAN J
24 APRIL 2009
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:
24 APRIL 2009
WHERE MADE:
MELBOURNE
THE COURT ORDERS THAT:
1.Leave be granted to the Defendant to make available to Visy Board Pty Limited (ACN 005 787 913), Visy Industries Holdings Pty Ltd (ACN 005 787 968) and Visy Industries Australia Pty Ltd (ACN 004 337 615) (“the Visy Corporate Respondents”), to Cadbury Pty Ltd (“Cadbury”) and to Amcor Ltd and Amcor Packaging (Australia) Pty Limited (“Amcor”) the documents specified in Confidential Exhibit LZ-7 to the affidavit of Leon Zwier sworn on 23 April 2009 (“the Harman Documents”) for the sole purpose of use by those parties in Federal Court of Australia proceeding VID 1377 of 2006 (“the Cadbury Proceeding”).
2.The operation of paragraph 1 of this Order be stayed until 1 May 2009 or further order in respect of the draft statements of evidence of Peter James Brown described at pages 8, 9 and 10 of the said Confidential Exhibit LZ-7 and the letters from Peter James Brown respectively dated 25 November 2004 and 11 November 2005 described at page 10 of the said Confidential Exhibit L-7.
3.Orders 1 and 2 are made on the provisos that:
(a)to the extent that any of the Harman Documents are subject to claims by any person other than the Defendant for legal professional privilege which has not otherwise been waived, this Order is not to be taken as having been based on a waiver of any legal professional privilege subsisting in those documents; and
(b)to the extent that any of the Harman Documents are subject to a claim by the Defendant for legal professional privilege, this Order is not to be taken as having been made on the basis of any waiver of any legal professional privilege subsisting in those documents.
4.Cadbury and Amcor pay the Defendant’s costs of complying with paragraph 1 of this Order by the provision of documents to Cadbury and Amcor respectively.
5.Otherwise the costs of all parties of and incidental to the motion on notice dated 24 April 2009 be costs in the cause in the Cadbury Proceeding.
6.A copy of this Order be served on Peter James Brown by 5.00 pm on 28 April 2009.
7.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.
8.Time for service of the said motion on notice be abridged to the extent necessary to enable the motion to be heard this day and service of the notice of motion on Peter James Brown be dispensed with.
Note:Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
The text of entered orders can be located using eSearch on the Court’s website.
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:
24 APRIL 2009
PLACE:
MELBOURNE
REASONS FOR JUDGMENT
There is before the Court a motion on notice dated today in the present proceedings. Those proceedings were instituted on 19 June 2008 by the applicant, the Australian Competition and Consumer Commission (“the ACCC”), by Summons to the defendant Richard Pratt (“Pratt”), alleging a contravention of s 155(5) of the Trade Practices Act1974 (Cth) by knowingly giving false or misleading evidence to the ACCC in the course of an examination under s 155. The notice of motion seeks the following orders:
1.Leave be granted to the defendant to make available to Visy Board Pty Limited (ACN 005 787 913), Visy Industry Holdings Pty Lt (ACN 005 787 968) and Visy Industries Australia Pty Ltd (ACN 004 337 615) (the Visy Corporate Respondents), the documents specified in Confidential Exhibit LZ-7 to the Affidavit of Leon Zwier sworn on 23 April 2009 (the Harman documents) for the sole purpose of use by those respondents in Federal Court of Australia proceedings VID 1377 of 2006 (the Cadbury proceedings).
2.Further or in the alternative, the Visy Corporate Respondents be given leave to use the Harman Documents in the Cadbury proceeding.
3.Orders 1 and 2 are made on the provisos that:
(a)to the extent that any of the Harman documents are subject to claims by any person other than the Defendant for legal professional privilege which has not otherwise been waived, this order is made without prejudice to and does not operate as a waiver of any legal professional privilege subsisting in those documents; and
(b)to the extent that any of the Harman Documents are subject to a claim by the Defendant for legal professional privilege, this order is made without prejudice to and does not operate as a waiver of any legal professional privilege subsisting in those documents.’
The notice of motion also sought such further or other orders as the Court thinks fit.
A motion has also been foreshadowed by Cadbury Pty Ltd (“Cadbury”), seeking a corresponding order, giving the defendant leave to provide to Cadbury any document discovered in the present proceeding (that is the criminal proceeding to which I have referred), documents served in this proceeding, documents produced in response to a notice to produce in this proceeding, and documents produced in response to a subpoena in this proceeding for the purpose of use in the Cadbury proceeding. In the event the need for that motion will be overtaken by the order, which I propose to make on the application of Pratt in the present proceeding, VID 443 of 2008.
I am satisfied that this is an appropriate case in which to grant relief from what is sometimes called “the Harman undertaking”, that name being derived from the judgment of the House of Lords in Home Office v Harman [1983] 1 AC 280. Numerous later authorities have outlined the principles governing relief from that implied undertaking and the factors taken into account in exercising the discretion. However, as Wilcox J said in Springfield Nominees Proprietary Limited v Bridgelands Securities Limited (1992) 38 FCR 217, at 225:
‘It is neither possible nor desirable to propound an exhaustive list of those factors.’
In the present case it is sufficient to indicate that the issues in the Cadbury proceedings are, to a large degree, intertwined with those in the present proceedings and all parties with the exception of Mr Peter James Brown, to whom I shall refer later, have either consented to an order granting relief from the undertaking or have not opposed such an order I consider, in the circumstances, that the making of the order is necessary to enable justice to be done in the Cadbury proceedings.
Accordingly, I shall make an order substantially in the terms which have been sought. There are some minor alterations, the first of which will extend the provision of documents to Cadbury Pty Ltd and Amcor Ltd. Paragraph 1 of the order as made will therefore read;
1. Leave be granted to the defendant to make available to Visy Board Pty Ltd (ACN 005 787 913), Visy Industry Holdings Pty Ltd (ACN 005 787 968) and Visy Industries Australia Pty Ltd (ACN 004 337 615) (“the Visy Corporate Respondents”), to Cadbury Pty Ltd (“Cadbury”) and to Amcor Ltd and Amcor Packaging (Australia) Pty Ltd (“Amcor”) the documents specified in Confidential Exhibit LZ-7 to the affidavit of Leon Zwier sworn on 23 April 2009 (“the Harman Documents”) for the sole purpose of use by those parties in Federal Court of Australia proceeding VID 1377 of 2006 (“the Cadbury proceeding”).
I shall order, secondly, to protect the position of Mr Brown, that:
2. The operation of paragraph 1 of this Order be stayed until 1 May 2009 or further order in respect of the draft statements of evidence of Peter James Brown described at pages 8, 9 and 10 of the said Confidential Exhibit LZ-7 and the letters from Peter James Brown respectively dated 25 November 2004 and 11 November 2005 described at page 10 of the said Confidential Exhibit LZ-7.
Having regard to the form of paragraph 1 of the Order, there will be no need for the alternative formulation that the Visy Corporate Respondents be given leave to use the documents.
3. Orders 1 and 2 are made on two provisos, that that;
(a)to the extent that any of the Harman Documents are subject to claims by any person other than the Defendant for legal professional privilege which has not otherwise been waived, this Order is not to be taken as having been based on a waiver of any legal professional privilege subsisting in those documents; and
I prefer that formulation, because I do not believe it to be within the competence of this Court by order to waive privilege, but I think it can be made clear that the making of this Order is not to be taken as based on any waiver of privilege. So that will preserve any future arguments to invoke the privilege to the extent that it may be available. Similarly, paragraph (3)(b) will read:
(b)to the extent that any of the Harman Documents are subject to a claim by the Defendant for legal professional privilege which has not otherwise been waived, this Order is not to be taken as having been made on the basis of any waiver of any legal professional privilege subsisting in those documents.
The remainder of the order will be as follows;
4.Cadbury and Amcor pay the Defendants’ costs of complying with paragraph 1 of this Order by the provision of documents to Cadbury and Amcor respectively.
5.Otherwise the costs of all parties of and incidental to the motion on notice dated 24 April 2009 be costs in the cause in the Cadbury proceeding.
6.A copy of this Order be served on Peter James Brown by 5.00 pm on 28 April 2009.
7.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 and finally,
8.Time for service of the said motion on notice be abridged to the extent necessary to enable the motion to be heard this day and service of the notice of motion on Peter James Brown be dispensed with.
I certify that the preceding nine (9) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Ryan. Associate:
Dated: 29 April 2009
Counsel for the Prosecutor CDPP: Mr M Dean SC with Dr S Donaghue Solicitor for the Prosecutor CDPP: Office of the Commonwealth Director
of Public ProsecutionsCounsel for the ACCC: Mr R Attiwill Counsel for the Defendant: Mr O’Bryan Solicitor for the Defendant: Arnold Bloch Leibler Counsel for Amcor: Ms I Trethowan Solicitors for Amcor: Allens Arthur Robinson Counsel for Cadbury: Mr R Peters Solicitors for Cadbury: Mallesons Stephen Jaques
Date of Hearing: 24 April 2009 Date of Judgment: 24 April 2009
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