FEDERAL COURT OF AUSTRALIA

Jarra Creek Central Packing Shed Pty Ltd v Amcor Limited [2008] FCA 391

DISCOVERY – implied undertaking not to disclose discovered documents for another purpose – disclosure in special circumstances – relevant considerations for special circumstances – whether implied undertaking in different proceedings overridden by orders for discovery in this proceeding – whether discretionary release from implied undertaking should be granted.

Trade Practices Act 1974 (Cth) ss 155, 155AAA(1)

Cadbury Schweppes Pty Limited v Amcor Limited [2008] FCA 88 referred to

Esso Australia Resources Ltd v Plowman (1995) 183 CLR 10 cited

Holpitt Pty Ltd v Varimu Pty Ltd (1991) 29 FCR 576 considered

Liberty Funding Pty Limited v Phoenix Capital Ltd (2005) 218 ALR 283 considered

Lombe v Pollak [2004] FCA 593 considered

Springfield Nominees Pty Limited v Bridgelands Securities Ltd (1992) 38 FCR 217 applied

JARRA CREEK CENTRAL PACKING SHED PTY LTD (ACN 085 691 425) v AMCOR LIMITED (ACN 000 017 372), AMCOR PACKAGING (AUSTRALIA) PTY LTD (ACN 004 275 165), FIBRE CONTAINERS (QUEENSLAND) PTY LIMITED (ACN 051 607 517), VISY BOARD PTY LTD (ACN 005 787 913), VISY INDUSTRIES HOLDINGS PTY LTD (ACN 005 787 913) AND VISY INDUSTRIES (AUSTRALIA) PTY LTD (ACN 004 337 615)

NSD 702 OF 2006

TAMBERLIN J

27 MARCH 2008

SYDNEY

THE COURT ORDERS THAT:

1.                  Subject to order 2 below, the parties and their respective solicitors and counsel have leave to disclose and otherwise use for any purpose related to this proceeding (including but not limited to the purpose of complying with any order for discovery in this proceeding) any documents and/or information disclosed or obtained in the proceedings:

(a)               Australian Competition and Consumer Commission v Visy Industries Holdings Pty Limited (VID 1650 of 2005); and

(b)               Cadbury Schweppes Pty Limited v Amcor Limited (VID 1377 of 2006).

2.                  The leave granted in order 1 above does not extend to disclosure of those documents from the proceedings enumerated in order 1 which are subject to:

(a)               an implied undertaking of non-disclosure;

(b)               a claim of privilege; or

(c)               a claim of confidentiality.

3.                  The application for release from the implied undertaking be otherwise stood over pending determination of issues relating to privilege and confidentiality.

4.                  The question of costs be reserved.

5.                  The parties have liberty to apply on two days’ notice.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

REASONS FOR JUDGMENT

1                     These reasons relate to orders sought in a Notice of Motion filed by the applicant (“Jarra Creek”) on 6 February 2008 seeking leave for the parties and their respective solicitors and counsel to disclose and use for any purpose related to this proceeding any documents and/or information created, disclosed or obtained in two other proceedings before the Court concerning related issues, namely, Australian Competition and Consumer Commission v Visy Industries Holdings Pty Limited (VID 1650 of 2005) (“the ACCC proceeding”) and Cadbury Schweppes Pty Limited v Amcor Limited (VID 1377 of 2006) (“the Cadbury proceeding”).  Other orders relating to the form of Opt Out Notice proposed by Jarra Creek and general directions were made on the day of the hearing.  In addition, the hearing of questions of privilege and confidentiality was stood over until 7 April 2008.

2                     The motion is opposed by the fourth to sixth respondents (“the Visy parties”) and the Australian Competition and Consumer Commission (“ACCC”), which is not a party to this proceeding but has made submissions on the basis that its interests are affected by the orders sought.  The first to third respondents (“the Amcor parties”) do not object to the orders sought, nor does Cadbury Schweppes Pty Limited, which is not a party to this proceeding.

3                     The ACCC’s position (and the reason it claims its interests are affected by the orders sought) is that to allow disclosure of proofs of evidence and other materials served on the Visy parties in the ACCC proceeding is premature because the implied undertaking which applies to those proofs of evidence are presently the subject of a reserved decision by Gordon J in the Cadburyproceeding.  The implied undertaking, which arises from the production of documents under compulsion of a court order, is that the documents may not be used for purposes other than use in the proceeding in which they were required to be disclosed.

4                     On 19 February 2008, Gordon J published reasons for decision (see Cadbury Schweppes Pty Limited v Amcor Limited [2008] FCA 88) in which her Honour invited further submissions from the Amcor parties, the Visy parties and the ACCC as to whether the Visy parties are bound by an implied undertaking given in the ACCC proceeding “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”.  These submissions have been filed with the Court, but to date there has been no ruling by her Honour.

5                     In these circumstances, I consider that I should await the ruling of her Honour in relation to the documents referred to by the ACCC rather than make a ruling without the benefit of her Honour’s reasons in circumstances where there are common legal and factual issues.

6                     In relation to the other documents which are not the subject of submissions by the ACCC, there are two questions for decision:

• whether previous orders for discovery made in this proceeding have the effect of overriding the implied undertaking attaching to the documents so that the documents in question must be discovered by the Visy parties; and
• whether the Court should grant leave to disclose the documents notwithstanding any implied undertaking.

7                     In relation to the first question it is settled law that where documents are required to be produced under compulsion of a court order, an implied undertaking arises that the party who secures access will not make the contents of the documents public, communicate them to any stranger to the litigation, or use them for any purposes other than those related to the litigation in the course and for the purposes of which they were disclosed.  Such an undertaking, however, must give way to any inconsistent statutory provision and to orders of a court in other proceedings for discovery and inspection: see Esso Australia Resources Ltd v Plowman (1995) 183 CLR 10 at 32-33 (per Mason CJ).

8                     In this case I have made orders for discovery, but the relevance of an implied undertaking arising out of other proceedings was not raised or considered in the making of those orders.  I do not regard the discovery orders granted to date as having the effect of automatically overriding any implied undertaking given by the Visy parties in relation to the documents now sought to be inspected.  Accordingly, I reject this basis of Jarra Creek’s application.

9                     The second and more substantial question before me is whether I ought now to grant discovery and inspection of the documents in respect of which the implied undertaking applies, leaving aside for the moment the documents in respect of which the ACCC objects to production at this stage.

10                  Helpful guidance is found in the reasoning in Springfield Nominees Pty Limited v Bridgelands Securities Ltd (1992) 38 FCR 217 at 225, where Wilcox J, after noting that release from such an implied undertaking may be only given in special circumstances (having regard to the onerous nature of a compulsory order of a court to disclose documents), sets out a number of relevant considerations, including:

• the nature of the document;
• the circumstances under which the document came into existence;
• the attitude of the author of the document and any prejudice the author may sustain;
• whether the document pre-existed litigation or was created for that purpose and therefore expected to enter the public domain;
• the nature of the information in the document (and in particular whether it contains personal data or commercially sensitive information);
• the circumstances in which the documents came into the hands of the applicant; and
• most importantly of all, the likely contribution of the document to achieving justice in other proceedings.

11                  These factors were considered and applied by the Full Court in Liberty Funding Pty Limited v Phoenix Capital Ltd (2005) 218 ALR 283 at 289-290, and were regarded as a helpful guide when making a determination as to whether a release from an implied undertaking should be granted by the Court.

12                  In Holpitt Pty Ltd v Varimu Pty Ltd (1991) 29 FCR 576 at 579, Burchett J held that the requirement of “special circumstances” when considering an application for release from an implied undertaking meant that the applicant for release must show “some circumstance which takes the matter out of the ordinary course”, and that the Court should consider whether the exercise of its discretion would be “in the interests of justice”.  His Honour also accepted that one relevant circumstance was whether a release from the undertaking could occasion injustice to the person who was required to give discovery.

13                  The reasoning in Springfield 38 FCR 217 was also applied by Jacobson J in Lombe v Pollak [2004] FCA 593 at [19], where his Honour referred in particular to the question of whether any prejudice may be suffered by the owner of the document.

14                  It follows from these authorities that it is appropriate, where a release from an implied undertaking is sought, for persons who may be prejudiced by the disclosure of documents to have an opportunity to make submissions as to any prejudice they might suffer as a result of that disclosure.  This enables the Court to take into account the consequences of any order for disclosure it might make.  In the present case, it seems clear that it is possible that non-parties to the proceeding may be adversely affected by disclosure of documents which they have been ordered to produce under a compulsory court process in other proceedings. 

15                  On this issue, Jarra Creek submits that the considerations which justify the release of the implied undertaking of non-disclosure in this case are as follows:

• the Visy parties sought and obtained release from their implied undertaking in this proceeding for use in the ACCC proceeding of documents discovered in this proceeding;
• the Amcor parties, Cadbury Schweppes Pty Limited and (for the most part) the ACCC do not oppose the orders sought;
• discovery orders in the Cadbury proceeding included discovery of documents relating to the ACCC investigation, the ACCC proceeding and this proceeding;
• in another related proceeding, Amcor Ltd v Mihelic (VID 1383 of 2004), each of the ACCC, Jarra Creek and the Amcor parties sought and obtained orders for the use in this proceeding of documents obtained in that proceeding;
• the documents created, disclosed or obtained in the ACCC proceeding and the Cadbury proceeding are likely to be of forensic utility to all the parties in this proceeding in identifying witnesses, preparing subpoenas and preparing notices to admit, all of which can assist in achieving justice in this proceeding;
• the documents created, disclosed or obtained in the ACCC proceeding and the Cadbury proceeding will be of forensic utility to Jarra Creek in this proceeding because the Visy parties are not prepared to make the same admissions they made in the ACCC proceeding, and in the absence of such admissions the documents are likely to contribute to achieving justice in this proceeding; and
• there is a compelling public interest in allowing private litigants to rely on the output of regulatory investigations.

16                  The Visy parties submit that there should be no blanket release from the implied undertaking in this case, and that an opportunity should be provided to non-parties to the litigation whose documents may be disclosed to make submissions as to why any such documents should not be released on discovery in this proceeding.  This, it is said, will provide the Court with a chance to consider both the relevant documents and any submissions of non-parties, and then determine whether any prejudice or detriment may accrue to the person providing the information: see the remarks of Wilcox J in Springfield 38 FCR at 225.

17                  The Visy parties also refer to s 155AAA(1) of the Trade Practices Act 1974 (Cth) (“the Act”) which prohibits an official of the ACCC from disclosing “protected information”.  This expression covers information given to the ACCC in confidence or which was obtained under the search and seizure provisions in Part XID of the Act (which includes information obtained under s 155).  These provisions, it is said, justify the expectation of a person producing documents in either the ACCC proceeding or the Cadbury proceeding that the information will not be disclosed in this proceeding, a matter which is said to be a relevant consideration for the Court in its exercise of discretion whether to grant the release.

18                  On this point relating to the provisions of the Act, the ACCC also refers to the public interest in enforcement of the Act, the need for transparency in the Act’s application and the interests of judicial decisions being fully informed in the light of all relevant material.

19                  In respect of the s 155AAA submission, Jarra Creek responds by referring to the exception to the prohibition on officials of the ACCC disclosing protected information contained in s 155AAA(b)(i).  That exception provides that the prohibition does not apply when the official is required or permitted by the Act or any other law of the Commonwealth to disclose the information.  Jarra Creek says that an order of this Court is properly described as a law of the Commonwealth, and therefore the officials of the ACCC are not prohibited from disclosing the information the subject of the implied undertaking.

20                  Having regard to the formulation of the relevant considerations by Wilcox J in Springfield 38 FCR at 225, in this case it appears that it is necessary to consider granting the release in respect of particular documents, rather than simply granting release in respect of a broad class of documents.  Accordingly, in this case, I do not think that an order should be made in the unqualified terms sought by Jarra Creek at this stage.  Although I accept that cogent reasons have been advanced by Jarra Creek for the grant of a release in the present case, I am not satisfied that I should grant that release on the global basis sought without first investigating the question of prejudice to non-parties.

21                  The position taken by the Visy parties on this application is to oppose the grant of a general release until an opportunity has been given to investigate the position of non-parties.  The Visy parties suggest that a practical way forward is for them to prepare a list of those documents in their possession which they consider could reasonably be seen to adversely impact non-parties if disclosed, so that the position of such parties could be investigated if necessary.  While I agree that a release from the implied undertaking should not be granted until the issue of prejudice has been canvassed, in my view, all other documents which will not either appear on the list prepared by the Visy parties or be the subject of claims for privilege or confidentiality, should be disclosed immediately so that the matter may progress.

22                  An opportunity might be given, if appropriate and necessary, to non-parties who may be affected to submit to the Court what prejudice, if any, might arise if a release from the implied undertaking is granted.  Clearly such an exercise may be both expensive and time consuming.  In the event that there proves to be a great number of such documents which will require investigation, a suitable modus operandi should be agreed upon to deal in a timely and efficient manner with such investigations.  However, it may well be that there are only a few (or even no) documents which would give rise to any arguable prejudice.  In this way, the discovery process can move forward. 

23                  Accordingly, I do not consider that, at this stage, there should be an unqualified release of the implied undertaking which affects the Visy parties until the list of the documents which may give rise to any prejudice to non-parties has been compiled and consideration given to whether any such claims for prejudice can be substantiated.  When this has been done, I will hear any interested non-parties in relation to those claims.  Otherwise, the documents other than those of the ACCC, those contained in the list to be prepared by the Visy parties and those which are the subject of claims for privilege or confidentiality should be immediately disclosed.

24                  In my view, for the above reasons this application, insofar as it seeks release from the implied undertaking, should be stood over pending determination of issues relating to privilege and confidentiality.

25                  Insofar as this application is concerned, I reserve the question of costs.  I also give the parties liberty to apply to restore this matter to this list on two days’ notice.

Associate:

Dated:         27 March 2008