Visy Industries Holdings Pty Ltd v Australian Competition and Consumer Commission

The case of Visy Industries Holdings Pty Ltd v Australian Competition and Consumer Commission involves an application by the applicants for leave to appeal against interlocutory orders made by Justice Heerey. The respondents, the Australian Competition and Consumer Commission (ACCC), brought an amended application alleging that the applicants had engaged in collusive conduct in relation to the supply of corrugated fibreboard packaging, contravening Part IV of the Trade Practices Act 1974. The applicants sought production of documents and discovery of communications, while the ACCC claimed legal professional privilege over certain communications and sought orders for better particulars of the applicants’ amended defence.

The central legal issues were whether the ACCC's claim for legal professional privilege was validly made, whether documents relating to immunity and/or leniency granted to Amcor were discoverable, and whether certain parts of the applicants’ amended defence should be struck out. Justice Heerey found in favour of the ACCC on all issues. The Court held that the ACCC had reasonably anticipated litigation by 15 December 2004, thus justifying the claim for legal professional privilege. The documents in question were found not to be discoverable, and parts of the applicants' amended defence were struck out.

In dismissing the application for leave to appeal, the Court considered the discretion exercised by Justice Heerey in refusing the applicants the opportunity to cross-examine Mr Williams, a witness for the ACCC. The Court found no error in this decision, noting that the evidence in question was marginal and the ACCC's opposition to cross-examination did not warrant a Jones v Dunkel inference. The Court further held that the ACCC had ample evidence to reasonably anticipate litigation by mid-December 2004.

The Court dismissed the application and ordered the applicants to pay the ACCC's costs. The applicants' application for leave to appeal was thus unsuccessful, and the interlocutory orders made by Justice Heerey were affirmed.