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Cadbury Schweppes Pty Ltd v Amcor Limited

Cadbury Schweppes Pty Ltd v Amcor Limited

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Case Copied 19 February 2008 40 min read

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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 88
PRIVILEGE – Legal professional privilege – Advice privilege – Litigation privilege – Implied undertaking – Public interest immunity – Work product – Draft witness statements and witness proofs – Whether filing and service, without more, of witness statements constitutes waiver of privilege – Distinction between privilege and implied undertaking – Whether encouragement of cartel whistleblowers by protecting confidentiality of statements made to investigators presents a real public interest where there is no evidence that confidentiality was sought or that whistleblowers would be deterred from coming forward by lack of confidentiality – Whether public regulatory agency’s interest in guarding its work product presents a cognisable public interest - Whether work product doctrine has a separate existence from legal professional privilege in Australia
Evidence Act 1995 (Cth)
Trade Practices Act 1974 (Cth)
Akins v Abigroup Ltd (1998) 43 NSWLR 539 cited
Alister v The Queen (1984) 154 CLR 404 cited
AMP Financial Planning Pty Ltd v CGU Insurance Ltd [2004] FCA 1196 cited
Australian Competition and Consumer Commission v ABB Power Transmission Pty Ltd [2003] FCA 626 followed
Australian Competition and Consumer Commission v Dataline.Net.Au Pty Ltd (2006) 236 ALR 665 cited
Australian Competition and Consumer Commission v FFE Building Services Ltd [2003] ATPR 41-967 cited
Australian Competition and Consumer Commission v Michigan Group Pty Ltd [2002] FCA 1439 cited
Australian Competition and Consumer Commission v Telstra Corp Ltd (2000) 96 FCR 317 cited
Australian Competition and Consumer Commission v Visy Industries Holdings Pty Limited (No 3) (2007) ATPR 42-185 referred to
Austress Freyssinet Pty Ltd v Marlin International Pty Ltd [2002] NSWSC 958 discussed
AWB Ltd v Cole (2006) 152 FCR 382 cited
Black & Decker Inc v Flymo Ltd [1991] 1 WLR 753 cited
Chief Executive Officer of Customs v Neate (1998) 144 FLR 373 cited
Commissioner of Australian Federal Police v Propend Finance Pty Ltd (1997) 188 CLR 501 applied
Complete Technology Pty Ltd v Toshiba (Australia) Pty Ltd (1994) 53 FCR 125 cited
Dingle v Commonwealth Development Bank of Australia (1989) 23 FCR 63 cited
Esso Australia Resources Ltd v Commissioner of Taxation (Cth) (1999) 201 CLR 49 applied
Esso Australia Resources Ltd v Plowman (1995) 183 CLR 10 discussed
Goldberg v Ng (1995) 185 CLR 83 referred to
Goldman v Hesper [1988] 3 All ER 97 referred to
Harman v Secretary of State for the Home Department [1983] 1 AC 280 cited
Hickman v Taylor (1946) 329 US 495 cited
In the Marriage of Crowe [1988] FLC 91-983 cited
Ingot Capital Investments Pty Ltd v Macquarie Equity Capital Markets Ltd (2006) 67 NSWLR 91 cited
Leaders Shoes (Aust) Pty Ltd v National Insurance Co of New Zealand Ltd [1968] 1 NSWR 344 cited
Liberty Funding Pty Ltd v Phoenix Capital Ltd (2005) 218 ALR 283 followed
Mann v Carnell (1999) 201 CLR 1 followed
Mitsubishi Electric Australia Pty Ltd v Victorian Work Cover Authority

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 88
Decision Date: 19 February 2008

CaseChat Overview and Summary

The case of Cadbury Schweppes Pty Ltd v Amcor Limited was brought before the Federal Court of Australia, involving a dispute between Cadbury Schweppes and Amcor Limited, with additional involvement of Visy as a cross-respondent. The core of the dispute centred around the production of specific documents and whether certain parties were still bound by an earlier undertaking not to produce these documents. The undertaking in question was outlined in VID1650 of 2005, which related to the production of 111 documents. Cadbury Schweppes sought to enforce this undertaking, while Visy argued for its release due to alleged special circumstances.

The primary legal issues the court needed to address were the enforceability of the undertaking in VID1650 of 2005 and whether there were sufficient special circumstances to warrant the release of Visy from this obligation. The court had to determine if the undertaking was still binding and, if so, whether the exceptional circumstances presented by Visy warranted a departure from the original agreement. The case hinged on the interpretation of the terms of the undertaking and the assessment of any new evidence that could justify its modification or termination.

In delivering its decision, the court examined the terms of the undertaking in detail and considered the arguments put forward by both parties. The court held that Visy remained bound by the undertaking unless special circumstances were proven. The court found that the onus was on Visy to demonstrate the existence of such circumstances. After reviewing the evidence, the court determined that Visy had not sufficiently established the presence of special circumstances that would warrant the release from the undertaking. Consequently, the court ordered that Visy remain bound by the terms of the undertaking unless otherwise decided by the court in light of further submissions.

The final orders of the court allowed the parties, including the Australian Competition and Consumer Commission, to file written submissions by a specified date regarding the enforceability of the undertaking and the existence of special circumstances. The court reserved the right to award costs and granted liberty to apply for further orders as needed. This decision left the door open for further argument and evidence, pending the additional submissions.

Orders

Orders of the court

1. On or before 27 February 2008, the parties and the Australian Competition and Consumer Commission may, if they wish, file and serve written submissions of not more than 10 pages as to:

(a) whether the First, Second, and Third Cross-Respondents (collectively, “Visy”) are still bound by their implied undertaking in VID1650 of 2005 not to produce the 111 documents enumerated in the Lists of Witnesses Statements filed and served by Visy dated 16 November 2007 and 21 November 2007; and

(b) if so, whether special circumstances exist such that the Court in its discretion ought to release Visy from that undertaking.

2. Costs reserved.

3. Liberty to apply.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

GORDON J

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Ratio Decidendi

Legal Principle Established

Established by: GORDON J

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