Australian Competition and Consumer Commissioner v Visy Industries Holdings Pty Limited (No 4)

[2008] FCA 1374

FEDERAL COURT OF AUSTRALIA

Australian Competition and Consumer Commissioner v Visy Industries Holdings Pty Limited (No 4) [2008] FCA 1374

AUSTRALIAN COMPETITION AND CONSUMER COMMISSION v VISY INDUSTRIES HOLDINGS PTY LIMITED, VISY INDUSTRIES AUSTRALIA PTY LIMITED, VISY BOARD PTY LIMITED, RICHARD PRATT, HARRY DEBNEY and ROD CARROLL

VID 1650 of 2005

RYAN J
27 AUGUST 2008
MELBOURNE

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY	VID 1650 of 2005

BETWEEN:

AUSTRALIAN COMPETITION AND CONSUMER COMMISSION
Applicant

AND:

VISY INDUSTRIES HOLDINGS PTY LIMITED
First Respondent

VISY INDUSTRIES AUSTRALIA PTY LIMITED
Second Respondent

VISY BOARD PTY LIMITED
Third Respondent

RICHARD PRATT
Fourth Respondent

HARRY DEBNEY
Fifth Respondent

ROD CARROLL

Sixth Respondent

JUDGE:

RYAN J

DATE OF ORDER:

27 AUGUST 2008

WHERE MADE:

MELBOURNE

THE COURT ORDERS THAT:

1.   Leave be granted to the Fourth Respondent to use any document obtained coercively in this proceeding, including (without limitation) any:

(a)  document discovered by the Applicant in this proceeding;

(b)  document served by the Applicant in this proceeding;

(c)  document produced by the Applicant in response to a notice to produce served by the Respondents (or any of them) in this proceeding;

(d) document furnished by the Applicant to the Respondents (or any of them) pursuant to section 157 of the Trade Practices Act 1974 (Cth); and

(e)  work product of the First to Fifth Respondents relating to or connected with any document referred to in paragraphs (a) – (d) above;

for the purpose of Federal Court of Australia proceeding VID 443 of 2008 on the provisos that:

(f)  to the extent that any document referred to in paragraphs (a) – (c) above or any parts of them is or are subject to confidentiality orders made on 15 November 2006 in this Proceeding, this order does not relieve the Fourth Respondent of his obligations under those orders except insofar as may be necessary for the Fourth Respondent to consult with his legal advisers in connection with Federal Court of Australia proceeding VID 443 of 2008;

(g)  to the extent that any document referred to in paragraphs (a) and (b) above is subject to claims by the Applicant 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 that document;

(h)  to the extent that any document or any copy of any document referred to in paragraphs (a) – (e) above is subject to claims by the Respondents or any of them 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 that document; and

(i)   to the extent that any document or any copy of any document obtained coercively from a non-party to this proceeding is subject to claims by the non-party 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 that document.

2.   Liberty to apply is reserved to any person including a person from whom was obtained any document to which the leave hereby granted applies.

3.   Costs of the motion on notice filed on 18 August 2008, including the costs of this hearing, be reserved.

Note:   Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY	VID 1650 of 2005

BETWEEN:

AUSTRALIAN COMPETITION AND CONSUMER COMMISSION
Applicant

AND:

VISY INDUSTRIES HOLDINGS PTY LIMITED
First Respondent

VISY INDUSTRIES AUSTRALIA PTY LIMITED
Second Respondent

VISY BOARD PTY LIMITED
Third Respondent

RICHARD PRATT
Fourth Respondent

HARRY DEBNEY
Fifth Respondent

ROD CARROLL
Sixth Respondent

JUDGE:

RYAN J

DATE:

27 AUGUST 2008

PLACE:

MELBOURNE

REASONS FOR JUDGMENT

1. There is before the Court a motion on notice, dated 18 August 2008, seeking orders that leave be granted to the fourth respondent, to use any document obtained coercively in these proceedings numbered VID 1650 of 2005 for the purpose of Federal Court proceedings numbered VID 443 of 2008, which have been compendiously referred to as “the criminal proceedings”. 

2. The authorities make clear that what is sometimes called Harman relief (Harman v Secretary of State for the Home Department [1983] AC 280) is only to be granted in special circumstances. I am satisfied, without purporting exhaustively to detail them, that there are special circumstances in this case, which warrant the making of an order in the nature of Harman relief. 

3. The proceedings in which it is sought to use the documents coercively obtained in the first proceedings, are criminal proceedings in which the defendant is the fourth respondent in the earlier civil proceedings in which the subject documents were produced.  I also characterise as special circumstances the fact that several orders have already been made by consent according Harman relief in respect of specified documents, or categories of documents.  It has been indicated by Counsel for the defendant in support of the motion that, if a broad-ranging order of the type which I have been persuaded to make were not made, there would have to be multiple applications of that kind, on the assumption that Harman relief would be granted in respect, in the first instance, of two lists of documents, which I have been told from the Bar table were compiled in the course of the civil proceedings.  That would involve a considerable proliferation of costs, as well as using the time of the Court and the parties, in an exercise which the order which I consider should be made can avoid. 

4. Another factor which contributes to the existence of special circumstances is the need, if the alternative course of proceeding document by document, or category by category, were adopted, for the defendant to disclose, at least in outline, the use which he or his advisers think might be made, or hope to make, of the particular subject documents.  In the circumstances, I regard that as an unnecessary burden, and an unnecessary tactical disadvantage to be imposed on the applicant. 

5. Accordingly, for these reasons, and the reasons which I provisionally outlined in the course of discussion with Counsel this afternoon, I am persuaded to make an order, substantially in terms of the motion.  That will be that leave be granted to the fourth respondent to use any document obtained coercively in this proceeding, i.e., proceeding number VID 1650 of 2005, including, without limitation, any:

   (a)document discovered by the applicant in this proceeding;  

   (b)document served by the applicant in this proceeding;  

   (c)document produced by the applicant in response to a notice to produce, served by the respondents, or any of them, in this proceeding; 

   (d)document furnished by the applicant to the respondents, or any of them, pursuant to s 157 of the Trade Practices Act 1974 (Cth); and

   (e)work product of the first to fifth respondents relating to, or connected with any document referred to in paragraphs (a) to (d) above, for the purpose of Federal Court of Australia proceeding VID 443 of 2008 (“the criminal proceeding”), on the proviso that:

   (f)to the extent that any document referred to in paragraphs (a) to (c) above, or any parts of them, are subject to confidentiality orders made on 15 November 2006 in this proceeding, this order does not relieve the fourth respondent of his obligations under those orders, except insofar as may be necessary for the fourth respondent to consult with his legal advisers in connection with Federal Court of Australia proceeding VID 443 of 2008; 

   (g)to the extent that any document referred to in paragraph (b) above is subject to claims by the applicant 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 that document;  and

   (h)to the extent that any document, or any copy of any document referred to in paragraphs (a) to (e) above is subject to claims by the respondents, or any of them, 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. 

6. I shall include another paragraph, (j), to preserve any right in any third person from whom a document has been obtained to claim legal professional privilege in respect of that document.  Consistently with that addition, I would add a further paragraph to the order that liberty to apply be reserved to any person, including a person from whom was obtained any document to which the leave, hereby granted, applies.  That will permit any such person, if so minded, to raise the question of legal professional privilege, to which I have adverted.  I should also indicate that another of the circumstances, which weighed with me in granting this broad form of order, was the consideration that the respondent to the motion, the ACCC, has, itself, disclaimed any direct concern in resisting an order in this form, but has indicated that its inability to consent to the order was prompted only by a concern to preserve, as far as might be, the interests of a non-party from whom a document within the reach of the order has coercively been obtained. 

7. I consider that the additional paragraphs which I have proposed, preserving any legal professional privilege, inhering in any such person, and granting liberty to apply, will be sufficiently protective of the interests of that category of person.  Those are the orders which I make.  I shall order that the costs of the motion on notice dated 18 August 2008, including the costs of the hearing this afternoon, be reserved.

I certify that the preceding seven (7) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Ryan.

Associate:

Dated:       9 September 2008

Counsel for the Applicant ACCC:	Mr S Marks QC with Mr B Quinn
Solicitor for the Applicant ACCC:	Australian Government Solicitor
Counsel for the Fourth Respondent, Pratt:	Mr R Richter QC with Mr N J Clelland SC, Dr S McNicol and Ms K L Walker
Solicitor for the Fourth Respondent, Pratt:	Arnold Bloch Leibler

Date of Hearing:	27 August 2008
Date of Judgment:	27 August 2008