FEDERAL COURT OF AUSTRALIA

Australian Competition & Consumer Commission v Warner

Music Australia Pty Ltd [2000] FCA 647

AUSTRALIAN COMPETITION AND CONSUMER COMMISSION v

WARNER MUSIC AUSTRALIA PTY LIMITED (ACN 000 815 565) AND OTHERS

N 924 OF 1999

AUSTRALIAN COMPETITION AND CONSUMER COMMISSION v

UNIVERSAL MUSIC AUSTRALIA PTY LIMITED (formerly known as

PolyGram Pty Limited) (ACN 000 158 592) AND OTHERS

N 925 OF 1999

AUSTRALIAN COMPETITION AND CONSUMER COMMISSION v

SONY MUSIC ENTERTAINMENT (AUSTRALIA) LIMITED

(ACN 000 033 581) AND OTHERS

N 926 OF 1999

HILL J

11 MAY 2000

SYDNEY

EX TEMPORE REASONS FOR JUDGMENT

1                     Before the Court are motions brought by the Commission in each of the three matters in essence establishing a regime whereby documents tendered in one proceeding may be available for use in the other proceedings but subject to questions of confidentiality.

2                     There are essentially two disputes between the parties. The first is that the Commission does not accept that it should be required or, for that matter, its officers, counsel or solicitors should be required to give undertakings.  It is said they should not be required to do so because they are model litigants and also because s 70 of the Crimes Act 1914 (“the Act”)provides for an offence in the event of publication or communication by them of information.

3                     The respondent, Universal Music, objects to documents being available to members of the Commission, the chief executive officer of the Commission and the executive general manager of the Commission.  I am of the view, dealing with the second of those matters, that it may from time to time be necessary for the officers of the Commission named in paragraph 6 of annexure A to obtain instructions and that those instructions would necessarily have to come from those who were comprised in numbered paragraphs 1 to 3 of annexure A and that accordingly it is appropriate that those persons be able to be the recipients of information that may from time to time be communicated.

4                     I am also of the view that while generally it is right that the government is, or at least should be, a model litigant, it does not follow that it is inappropriate for confidentiality orders to be imposed as a condition of a privilege being extended to the Commission that implied undertakings to the Court be dispensed with.  The rule in Harmon v Home Office is an important rule and its waiving requires consideration of the particular circumstances of the case.

5                     The giving of undertakings in the form requested which incidentally are wider than the offence comprised in section 70, although overlapped with it, particularly draws the attention of those to whom the information is given that they not use it for any other purpose than the purpose of the conduct of the litigation that is presently before me. 

6                     While perhaps use of documents would not be expected of a model litigant the fact that an undertaking is given to the Court (not as the initial document was prepared both to the Court and the parties) emphasises the significance that the Court places upon the need to not use information.  The fact that it also extends to the area covered by s 70 of the Act does not seem to me to be a reason not to make the order.

7                     I accordingly would make the orders sought in the notices of motion but with the amendments which have been made in a document which I will mark “X”, initial and date for identification on the basis that orders will be in due course prepared incorporating the amendments and filed with the Court to reflect the orders which I make.

8                     I will make no orders as to the costs of the motion.

Associate:

Dated:              11 May 2000