Cadbury Pty Ltd v Amcor Ltd (No 2)

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FEDERAL COURT OF AUSTRALIA

Cadbury Pty Ltd v Amcor Limited (No 2) [2009] FCA 663

CADBURY PTY LTD (ACN 004 551 473) v AMCOR LIMITED (ABN 62 000 017 372) and AMCOR PACKAGING (AUSTRALIA) PTY LTD (ABN 55 004 275 165); VISY BOARD PTY LTD (ACN 005 787 913), VISY INDUSTRIES HOLDINGS PTY LTD (ACN 005 787 968) and VISY INDUSTRIES (AUSTRALIA) PTY LTD (ACN 004 337 615)

VID 1377 of 2006

GORDON J
19 JUNE 2009
MELBOURNE


IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY

VID 1377 of 2006
BETWEEN:

CADBURY PTY LTD (ACN 004 551 473)
Applicant
AND:

AMCOR LIMITED (ABN 62 000 017 372)
First Respondent

AMCOR PACKAGING (AUSTRALIA) PTY LTD (ABN 55 004 275 165)
Second Respondent
AND BETWEEN:

AMCOR LIMITED (ABN 62 000 017 372)
First Cross Claimant

AMCOR PACKAGING (AUSTRALIA) PTY LTD (ABN 55 004 275 165)
Second Cross Claimant
AND:

VISY BOARD PTY LTD (ACN 005 787 913)
First Cross Respondent

VISY INDUSTRIES HOLDINGS PTY LTD (ACN 005 787 968)
Second Cross Respondent

VISY INDUSTRIES (AUSTRALIA) PTY LTD (ACN 004 337 615)
Third Cross Respondent

JUDGE:

GORDON J

DATE OF ORDER:

19 JUNE 2009

WHERE MADE:

MELBOURNE

THE COURT ORDERS THAT:

1.By 4:00pm on 24 June 2009, the parties file minutes of orders to give effect to these reasons for decision.

2.The costs relating to the issues the subject of these reasons for decision be costs in the cause.

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 1377 of 2006
BETWEEN:

CADBURY PTY LTD (ACN 004 551 473)
Applicant
AND:

AMCOR LIMITED (ABN 62 000 017 372)
First Respondent

AMCOR PACKAGING (AUSTRALIA) PTY LTD (ABN 55 004 275 165)
Second Respondent
AND BETWEEN:

AMCOR LIMITED (ABN 62 000 017 372)
First Cross Claimant

AMCOR PACKAGING (AUSTRALIA) PTY LTD (ABN 55 004 275 165)
Second Cross Claimant
AND:

VISY BOARD PTY LTD (ACN 005 787 913)
First Cross Respondent

VISY INDUSTRIES HOLDINGS PTY LTD (ACN 005 787 968)
Second Cross Respondent

VISY INDUSTRIES (AUSTRALIA) PTY LTD (ACN 004 337 615)
Third Cross Respondent

JUDGE:

GORDON J

DATE:

19 JUNE 2009

PLACE:

MELBOURNE

REASONS FOR JUDGMENT

INTRODUCTION

  1. The background to these proceedings has been described earlier:  see Cadbury Schweppes Pty Ltd v Amcor Limited [2009] FCA 442.

  2. The respondents (“Amcor”) produce corrugated fibreboard packaging (CFP).  CFP is used by Cadbury in its confectionery business.  Cadbury also had a beverage business but it was sold in April 2009.  Amcor has sought orders that limit the persons within Cadbury to whom particular categories of documents may be disclosed.

  3. Annexure A is a list of the documents in dispute.  There were three categories in dispute.  One category in dispute has been resolved, namely the documents numbered 1 - 3, 7, 9 - 11, 14, 23, 28, 31, 35, 37 - 39, 41 and 43.…

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Details
Case
[2009] FCA 663
Decision Date

CaseChat Overview and Summary

The case of Cadbury Pty Ltd v Amcor Ltd (No 2) involved a dispute between the two parties concerning the confidentiality of financial information, particularly regarding direct and distribution costs, full costs, contribution to fixed costs, and profits for certain years. The matter was brought before a court that needed to determine the scope of disclosure of such sensitive information between the parties. The central issue was whether the financial figures for specific periods should be disclosed to the Cadbury Instructors, including Mr Banati, or if they should be kept confidential to prevent reverse engineering of more recent figures. Amcor argued that disclosure of overall figures could lead to reverse engineering of the detailed financial information for more recent years, while Cadbury contested the confidentiality of certain figures.

The court evaluated the submissions from both parties and considered the implications of disclosing the contested figures. It was noted that disclosure of the “Overall” figures for direct and distribution costs, full costs, contribution to fixed costs, and profit might enable Cadbury to deduce average figures for more recent years. The court accepted Amcor's argument that such disclosure would risk compromising the confidentiality of more recent financial information. Consequently, the court ruled that the inspection of the “Overall” figures should be limited to the Cadbury Instructors, including Mr Banati, to balance the need for disclosure with the requirement to protect sensitive financial data. This decision was based on the understanding that older figures might still be relevant for certain analyses, but there was a heightened risk of misuse if more recent figures were deduced through reverse engineering.

In light of the ruling, the court mandated that the parties submit minutes of orders by a specified deadline to implement the decision. Additionally, the costs associated with the issues addressed in the reasons for decision were to be borne by the parties as costs in the cause. This ruling underscored the importance of safeguarding commercial information while allowing necessary disclosure for the purpose of legal proceedings.

Orders

Orders of the court

1. By 4:00pm on 24 June 2009, the parties file minutes of orders to give effect to these reasons for decision.

2. The costs relating to the issues the subject of these reasons for decision be costs in the cause.

Note:

Background

Background to the litigation

Counsel for Cadbury accepts that inspection of the figures for the 2007 calendar year and the first six months of 2008 relating to direct and distribution costs, full costs, contribution to fixed costs and profits should be limited to Cadbury Instructors (including Mr Banati). The only other figure in dispute was the “Overall” figure in relation to direct and distribution costs, full costs, contribution to fixed costs and profit. Amcor submitted that if the “Overall” figure for each of these items was disclosed then Cadbury would be able to reverse engineer an average figure for the 2007 calendar year and the first six months of 2008. I accept that submission. Inspection of the “Overall” figure in relation to direct and distribution costs, full costs, contribution to fixed costs and profit should be limited to the Cadbury Instructors (including Mr Banati).Facts and Assumptions – Not Listed on Annexure A Amcor’s solicitors prepared a document entitled “Facts and Assumptions” which it provided to both Professors Hausman and Hay. Amcor contended that parts of two tables in paragraph [37] of that document dealing with “Kraft paper” and “recycled paper” contained CFP financial information entitled to special protection. Those tables are described in the Facts and Assumptions in the following terms:…Please assume that the adjustment to be made to the paper costs (on a per tonne basis) for the financial years 1999/00 until 2007/08 in order to exclude, among other things, the handling fee and margin are set out in the table below. These figures have also been adjusted to take account of the capital charge in respect of the average funds employed in the paper division.For Kraft paper and recycled paper, figures for the financial years 1999/00 until 2007/08 are then provided. There is no dispute about the figures for the financial years 1999/00 until 2005/2006. They are disclosed subject to the Harman undertaking. Cadbury does not challenge Amcor’s claim for confidentiality in relation to the 2007/08 figure. (That figure should be disclosed to the Cadbury Instructors (including Mr Banati). However, it does challenge Amcor’s claim in relation to the figures for 2006/2007. The issue is the currency of the information in the context of the current negotiations between Cadbury and Amcor over the CFP contract. Mr Ward, the current General Manager, Strategy and Business Improvement with Amcor Fibre Packaging Australasia described the currency of information in the following terms:It is difficult to identify with precision a date at which customer pricing, cost and margin information maintained by Amcor becomes so old as to no longer be a concern from the perspective of the issues raised above. For instance, if a customer’s pricing has not changed for a significant period, that pricing which was entered into some time ago remains current. Given that difficulty, it is in my view appropriate that information post 1 January 2007 in relation to pricing, cost and margin would represent a reasonable date by which to delineate currently relevant information from information which may no longer be currently relevant. Information after that date bears an increased risk of being used to identify or estimate with a reasonable degree of accuracy current prices, costs or margins.Providing information as to Cadbury’s margins prior to the current tender may permit Cadbury to identify by comparison the margins in relation to the current proposal. Accordingly, I am concerned to restrict the access to that information. (Emphasis added).

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

GORDON J

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Established by: GORDON J

Full text does not contain this section.