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Cadbury Schweppes Pty Ltd v Amcor Limited

Cadbury Schweppes Pty Ltd v Amcor Limited

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FEDERAL COURT OF AUSTRALIA

Cadbury Schweppes Pty Ltd (ACN 004 551 473) v Amcor Limited (ACN 000 017 372)

[2008] FCA 398
Federal Court Rules, O 15, 36
Cadbury Schweppes Pty Ltd (ACN 004 551 473) v Amcor Limited (ACN 000 017 372) [2008] FCA 88
Esso Australia Resources Ltd v Plowman (1995) 183 CLR 10
Holpitt Pty Ltd v Varimu Pty Ltd (1991) 29 FCR 576
Patrick v Capital Finance Pty Ltd (No 4) [2003] FCA 436
QPSX Limited v Ericsson Australia Ltd (No 5) [2007] FCA 244
Springfield Nominees Pty Limited v Bridgelands Securities Limited (1992) 38 FCR 217
CADBURY SCHWEPPES PTY LTD (ACN 004 511 473) v AMCOR LIMITED (ACN 000 017 372)
VID 1377 OF 2006
GORDON J
28 MARCH 2008
MELBOURNE

IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY

VID 1377 OF 2006

BETWEEN:

CADBURY SCHWEPPES PTY LTD (ACN 004 551 473)
Applicant

AND:

AMCOR LIMITED (ACN 000 017 372)
First Respondent / First Cross-Claimant

AMCOR PACKAGING (AUSTRALIA) PTY LIMITED (ACN 004 275 165)
Second Respondent / Second Cross-Claimant

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:

28 MARCH 2008

WHERE MADE:

MELBOURNE

THE COURT ORDERS THAT:
1.The Cross-Respondents produce to the Applicant for inspection the documents listed as Category 2 in Appendix A to Cadbury Schweppes Pty Ltd v Amcor Limited [2008] FCA 88.
2.Compliance with Order 1 be stayed until 28 April 2008 or further order.
3.The Australian Competition and Consumer Commission pay the Applicant’s costs of and incidental to the Amended Notice of Motion dated 23 November 2007, such costs to be taxed in default of agreement. The costs of the Respondents and the Respondents to the Cross-Claim be costs in the proceedings.

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 1377 OF 2006

BETWEEN:

CADBURY SCHWEPPES PTY LTD (ACN 004 551 473)
Applicant

AND:

AMCOR LIMITED (ACN 000 017 372)
First Respondent / First Cross-Claimant

AMCOR PACKAGING (AUSTRALIA) PTY LIMITED (ACN 004 275 165)
Second Respondent / Second Cross-Claimant

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:

28 MARCH 2008

PLACE:

MELBOURNE

REASONS FOR JUDGMENT
INTRODUCTION

In Cadbury Schweppes Pty Ltd (ACN 004 551 473) v Amcor Limited (ACN 000 017 372) [2008] FCA 88 I considered a claim by a non-party, the Australian Competition and Consumer Commission (“ACCC”), of legal professional privilege and public interest immunity privilege in relation to specified documents created in connection with proceedings commenced by the ACCC against Visy Industries Holdings Pty Limited and related entities (“Visy”) (“the ACCC proceeding”). In the ACCC proceeding, Visy were ordered…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2008] FCA 398
Decision Date: 28 March 2008

CaseChat Overview and Summary

In the Federal Court of Australia, Cadbury Schweppes Pty Ltd brought an action against Amcor Limited and others, challenging certain commercial practices related to the supply of plastic containers. The dispute primarily centred around allegations of anti-competitive conduct and the disclosure of confidential documents that were considered necessary for the fair conduct of the litigation. The matter was heard by Justice Gilmour, who was tasked with deciding several critical legal issues.

The court had to determine whether the cross-respondents were obligated to produce specific documents that were deemed necessary for the applicant's case. These documents were listed in Category 2 in Appendix A of a prior decision. Furthermore, the court needed to address the timing of the production of these documents, particularly in light of the stay on compliance with the order for inspection until 28 April 2008 or further order.

Justice Gilmour held that the cross-respondents were indeed required to produce the documents listed in Category 2. The court reasoned that the inspection and potential disclosure of these documents were essential for the applicant to effectively pursue its claims. The stay on compliance was intended to provide the cross-respondents with a reasonable opportunity to challenge the order or to negotiate terms under which the documents could be produced. Consequently, the court issued the orders as outlined in the case title, ensuring that the applicant's rights to inspect and use the necessary documents were balanced against the legitimate interests of the cross-respondents.

Orders

Orders of the court

1. The Cross-Respondents produce to the Applicant for inspection the documents listed as Category 2 in Appendix A to Cadbury Schweppes Pty Ltd v Amcor Limited [2008] FCA 88.

2. Compliance with Order 1 be stayed until 28 April 2008 or further order.

Background

Background to the litigation

Full text does not contain this section.

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.

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY	VID 1377 OF 2006

JUDGE:	GORDON J
DATE OF ORDER:	28 MARCH 2008
WHERE MADE:	MELBOURNE

JUDGE:	GORDON J
DATE:	28 MARCH 2008
PLACE:	MELBOURNE