FEDERAL COURT OF AUSTRALIA

Cadbury Schweppes Pty Ltd v Amcor Limited [2009] FCA 442

CADBURY SCHWEPPES PTY LTD (ACN 004 551 473) v AMCOR LIMITED (ABN 62 000 017 372) and AMCOR PACKAGING (AUSTRALIA) PTY LTD (ABN 55 004 275 165); VISY BOARD PTY LTD (ACN 005 787 913), VISY INDUSTRIES HOLDINGS PTY LTD (ACN 005 787 968) and VISY INDUSTRIES (AUSTRALIA) PTY LTD (ACN 004 337 615)

VID 1377 of 2006

GORDON J

5 MAY 2009

MELBOURNE

THE COURT ORDERS THAT:

1.                  The Applicant have leave to file and serve an Amended Statement of Claim in the form served on the Respondents on 28 April 2009.

2.                  At 10:15am on 6 May 2009, the matter be listed for further directions and consequential orders upon the granting of leave.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
The text of entered orders can be located using eSearch on the Court’s website.

REASONS FOR JUDGMENT

INTRODUCTION

1                     The Applicant (“Cadbury”) seeks leave to amend its Statement of Claim to file a proposed Amended Statement of Claim in the form of the document served on the Respondents’ solicitors on 28 April 2009 (“the PASOC”).  That application is opposed.  The respondents (“Amcor”) and the Cross Respondents (“Visy”) submit that I should not grant Cadbury the leave that is sought and that if, contrary to that primary submission, leave is granted, a very considerable adjournment of the trial of the proceedings will be necessary to meet the case as amended.

2                     For the reasons that follow, I would grant Cadbury leave to file the PASOC.

CURRENT PLEADINGS

3                     Before turning to the proposed amendments, it is necessary to say something about the history of these proceedings and the pleadings.  This proceeding was commenced by Cadbury against Amcor on 15 December 2006.  It raises serious allegations about the packaging industry from early 2000 and, in particular, Amcor and Visy’s involvement in corrugated fibreboard products (“CFP”), aluminium cans (“Cans”) and polyethylene teraphthalate (“PET”). 

4                     In general terms, as Amcor’s Statement of Primary Issues in Contention dated 14 May 2008 (“Statement of Issues”) explained, Cadbury’s case has been and remains that:

1.                  Amcor and Visy made a “CFP market sharing arrangement” in the period January 2000 to April 2000 (or thereabouts) (para 32 of the Statement of Claim (“SOC”));

2.                  in the relevant periods, Amcor supplied CFP to Cadbury pursuant to certain agreements (see paras 34, 40, 44 and 65 of the SOC) on certain terms and conditions;

3.                  Amcor gave effect to the “CFP market sharing arrangement” by its conduct (see paras 45 to 49 and 53ff of the SOC);

4.                  Visy’s offers to supply CFP to Cadbury were at higher or less commercially acceptable prices than the prices being offered by Amcor (see paras 48, 57 and 59 of the SOC);

5.                  in the absence of the “CFP market sharing arrangement”, the average price per tonne of CFP in Australia would have been less and Cadbury has thereby suffered loss and damage (see paras 80 and 82 of the SOC);

6.                  it can be inferred from, inter alia, the “CFP market sharing arrangement” that Amcor and Visy also made an arrangement or understanding in relation to the provision of Cans and PET (see para 85 of the SOC).

5                     Since the case was filed, one of the central paragraphs in Cadbury’s claim has been and remains paragraph 32 of the SOC:

In the period between January 2000 to April 2000 (or thereabouts) Amcor and Visy made an arrangement and/or arrived at an understanding:

(a)        that it would be detrimental to the profitability and long term viability of the packaging business conducted by each of Amcor and Visy in Australia if they were to compete freely and vigorously with each other to supply CFP to each of the significant packaging purchasers (defined in paragraph 69 below), including those with which the other had developed a relationship;

(b)        that it was in the best interests of each of Amcor and Visy to permit each other to continue to maintain approximately the shares of the CFP market (defined in paragraphs 66 and 67 below) which each then held;

(c)        that each of Amcor and Visy would not pursue contracts to sell CFP to those significant packaging purchasers who had previously purchased CFP from the other;

(d)        that Amcor, or alternatively Amcor Australia, would not offer to sell CFP to any purchaser or prospective purchaser of CFP at prices below approximately $1250 per tonne;

(e)        that Visy would not offer to sell CFP to any purchaser or prospective purchaser of CFP at prices below $1150 per tonne;

(f)        that Amcor and Visy would at all times co-operate with each other to achieve sales to the significant packaging purchasers of CFP on terms which continued the maintenance by each of Amcor and Visy of both the volume of sales which each was then making to the various significant packaging purchasers at prices which achieved approximately the gross margin then being achieved on those sales;

(“CFP market sharing arrangement”).

Particulars

The CFP market sharing arrangement was partly oral, partly written and partly to be implied.

A.        Insofar as the CFP market sharing arrangement was oral, it was made or arrived at, in, or as a result of, conversations at meetings between Mr Debney and Mr Brown, each of which meetings was held in the period between January and April 2000 at Mr Brown’s home at 11 Atkins Avenue, Glen Iris, Melbourne.  During one or more of those meetings:

(i)         Mr Debney said to Mr Brown words to the effect that:

(a)        he believed it was not in Visy’s interests to continue the price war with Amcor in respect of CFP;

(b)        Visy wanted to increase its CFP prices to more realistic levels; and

(c)        Debney wanted to forge a peace deal between Visy and Amcor whereby the intense competition between the companies ceased and each company could then sell CFP at sustainable price levels.

B.         At one meeting Mr Debney gave to Mr Brown a handwritten note, which note has since been destroyed (the “Debney note”) containing words to the effect that:

(a)        each of Visy and Amcor would continue to enjoy approximately the current share they each had of the CFP market;

(b)        neither Visy nor Amcor would poach each other’s CFP customers;

(c)        the underlying CFP minimum floor price for Amcor would be $1250 per tonne; and

(d)        CFP prices would be increased from their current unsustainable levels.

C.         At a meeting or meetings subsequent to the meeting at which the Debney note was discussed, Mr Debney said to Mr Brown words to the effect that:

(a)        the Debney note set out the basic principles which Visy and Amcor should agree to and abide by in conducting their respective CFP businesses;

(b)        Visy and Amcor should comply with the principles and not take any action that would precipitate a return to price war conditions between Visy and Amcor in the market for CFP;

(c)        Mr Debney intended to ensure that Visy abided by the principles set out in the Debney note;

(d)        the amount of $1250 per tonne was the indicative price for Amcor below which Amcor should not quote for CFP business;

(e)        the corresponding indicative price for Visy was $1150 per tonne having regard to Visy’s different cost structure and different product mix; and

(f)        Visy would not quote for CFP business below $1150 per tonne.

D.        At a meeting or meetings subsequent to the meeting at which the Debney note was discussed:

(a)        Mr Brown said to Mr Debney words to the effect that Amcor would agree to act in accordance with the principles proposed by Mr Debney subject to Visy also agreeing to act in accordance with those principles;

(b)        Mr Debney said to Mr Brown words to the effect that Visy would act in accordance with the principles Mr Debney had agreed with Mr Brown;

(c)        Mr Debney said to Mr Brown words to the effect that he would appoint Mr Rod Carroll (“Mr Carroll”) to be the Visy nominated contact person between Visy and Amcor on issues and matters arising from the implementation of the CFP market sharing arrangement; and

(d)        Mr Brown said to Mr Debney words to the effect that he would appoint Mr Laidlaw to be the Amcor nominated person between Visy and Amcor on issues and matters arising from the implementation of the Amcor/Visy market sharing arrangement.

E.         Insofar as the CFP market sharing arrangement was written, it was recorded in or evidenced by the Debney note.

F.         Insofar as the CFP market sharing arrangement was to be implied, it was implied from both matters set out in these particulars and the material facts pleaded in paragraphs 4, 5, 7, 12, 13, 18 to 22, 24 to 32, 35 to 37, 45 to 61, and 66 to 69.

6                     The First Amcor Respondent denied paragraph 32.  The Second Amcor Respondent did not admit paragraph 32.  Amcor’s Statement of Issues states that “Amcor does not admit that an arrangement or understanding of the type alleged was made”.

7                     From the outset, Cadbury sought to establish the alleged “CFP market sharing arrangement” pleaded in paragraph 32 by reference to oral conversations (see A-D of the particulars), by reference to a note described as the “Debney Note” which has allegedly been destroyed (see paras B and E of the particulars) and by implication.  Insofar as the CFP market sharing arrangement was to be implied, the particulars referred to “the matters set out in … the material facts pleaded in paragraphs 4, 5, 7, 12, 13, 18 to 22, 24 to 32, 35 to 37, 45 to 61 and 66 to 69” of the SOC.  Those paragraphs of the SOC could be divided into five groups (1) those that dealt with conduct of Amcor (paras 4, 5, 7, 12, 13, 18 to 22, 24 to 27);  (2) those that dealt with conduct of Visy (paras 28 to 31); (3) those that involved both Amcor and Visy (para 32); (4) those involving Cadbury and Amcor or Cadbury and Visy (paras 35 to 37, 45 to 61) and (5) the market for CFP in Australia (paras 66 to 69).

8                     In relation to the last category, the Amcor Respondents admitted that there was a market in Australia for CFP as pleaded in paragraph 66, admitted that there are a number of manufacturing companies which seek to purchase and have at all material times purchased in Australia significant quantities of CFP (defined as the “significant CFP purchasers”) but denied that there was or is a market in Australia, within the meaning of s 4E of the Trade Practices Act 1974 (Cth), for the supply and purchase of CFP (defined as the “CFP Market” in para 67).

9                     The only paragraphs of the SOC that pleaded facts, matters or conduct which involved both Amcor and Visy were 32 (as set out above) and paragraph 68 which provided:

In the period January 2000 to date Amcor competed with Visy, or but for the CFP market sharing arrangement would at all relevant times have competed with Visy, to sell CFP in Australia.

Particulars

(i)         Cadbury refers to and relies upon the matters set out in paragraphs 45 to 61 above.

(ii)        The respective shares of the total CFP market held by each of Visy and Amcor has been estimated by Industry Edge Pty Ltd (in the publication “The Pulp & Paper Edge Strategic Review”) in the years 2004 to 2005 and by URS Forestry/Ausnewz Intelligence Service (in the publication “URS Forestry/Ausnewz Pulp & Paper Yearbook”) in the years 1999 to 2003 to be:

Year                Visy market share      Amcor market share

1999/2000         46.9%                           50.3%

2000/2001         52%                             46%

2002                 47.2%                           49.9%

2003                 51%                             46.5%

2004                 52%                             46%

2005                 54%                             43%

SUMMARY OF PROPOSED AMENDMENTS

10                  As Amcor’s submissions stated, what the Cadbury proposed amendments “chiefly concern [is] a range of [additional] factual matters from which it is said that the existence of … the alleged CFP marketing (sic) sharing arrangements … can be implied”. 

11                  It was common ground that the “additional factual matters” fall into a number of categories: 

1.                  “market conditions allegations” being changed conditions in the CFP, PET and Cans markets between 1997 to 2000 and 2001 to 2004:  PASOC, paras 31A-31M; para 32 particular F(a); paras 32A-32F and para 85, particular (c);

2.                  “market sharing conduct”:  PASOC, para 32 particular F(b); para 70, particular (iv); para 85, particular (c); 114, particular (vi) and 117, particular (v);

3.                  “rationalisation discussion allegations”:  PASOC, para 32 particular F(c); para 32D and para 85, particular (c).

4.                  “post exposure conduct”:  PASOC, para 32 particular F(d)(i)-(iii); paras 79A-79D, 79G-79J and para 85, particular (c); and

5.                  “Botany Mill allegations”:  PASOC, para 32 particular F(d)(iv); paras 79E-79F and para 85, particular (c).

12                  Subject to the question of additional time for preparation, Amcor does not oppose Cadbury being granted leave to amend in respect of the matters listed in [11(1)], [11(3)] and [11(5)] above.  Amcor does oppose Cadbury being granted leave to raise factual issues in relation to “market sharing conduct” and “post exposure conduct”.  Visy opposes Cadbury being granted leave to raise factual issues in relation to “market sharing conduct”.  It does not oppose Cadbury being granted leave in respect of the other matters.

13                  I will deal with the “market sharing conduct” and “post exposure conduct” proposed amendments in turn.

MARKET SHARING CONDUCT

14                  The phrase “market sharing conduct” is defined in proposed particular F(b) of paragraph 32 of the PASOC.  In general terms, the market sharing conduct is alleged between Amcor and Visy in relation to 18 customers between 2000 and 2004.  The “conduct” is identified in the following manner:

“the conduct of Amcor and Visy … described in the proofs of evidence filed and served in proceeding number VID 1650 of 2005 brought by the Australian Competition & Consumer Commission against Visy and others (“the ACCC Proceeding”) for each of the following persons:

15                  As noted earlier, the phrase “market sharing conduct” also appears as proposed particulars to paragraph 70 (which concerns the alleged purpose of the CFP market sharing arrangement) and paragraphs 85, 114 and 117 of the PASOC (which are concerned with PET and Cans).  These additional particulars fall to be considered with paragraph 32 for at least two reasons.  First, paragraph 70 is dependent upon paragraph 32.  The Respondents either deny or do not admit (1) the CFP market sharing arrangement in 32 (see [4(1)], [5] and [6] above) and (2) that the CFP market sharing arrangement had the purpose or purposes including the substantial purpose, of preventing, restricting or limiting the supply by Visy and / or Amcor of CFP to the significant CFP purchasers, including Cadbury.  As Counsel for Visy submitted, if the CFP market sharing arrangement is established (or admitted), there may not be a separate argument as to purpose.  At present, the CFP market sharing arrangement is neither established nor admitted.  It would be inappropriate on this application for leave to amend to reach any conclusion about the strength of the arguments that each side would make concerning the use (if any) of the “market sharing conduct” in determining the question of purpose of the alleged CFP market sharing arrangement:  see eg News Limited v South Sydney District Rugby League Football Club Ltd (2003) 215 CLR 563 at [18] (per Gleeson CJ), at [37]-[46] (per McHugh J) and at [59]-[62], [68] and [82]-[83] (per Gummow J).  Secondly, in relation to paragraphs 85, 114 and 117, as Amcor accepted in its Statement of Issues, Cadbury has at all times sought to rely upon the CFP market sharing arrangement as a fact or matter from which to imply the existence of the PET and Cans market sharing arrangement:  see [4] above.

16                  I then turn to consider particular F(b) of paragraph 32 which contains the “market sharing conduct” particulars.  Amcor and Visy submitted that I should refuse leave to amend the PASOC to include particular F(b) of paragraph 32 because the statement of claim filed in the ACCC Proceeding (VID 1650 of 2005), which had been on foot since 21 December 2005, contained a summary of the facts and matters which were relied upon by the ACCC in relation to each of the 18 customers listed in the particulars and that information had therefore been publicly available to Cadbury since that date.  Alternatively, Amcor and Visy submitted that it was open to Cadbury to recreate the ACCC case in relation to these 18 customers by third party discovery, interviews and the ordinary processes of preparation for litigation or to at least have foreshadowed the contention earlier.  In relation to the first issue, I leave to one side whether it was appropriate for a party to simply plead matters alleged in the ACCC proceeding without first having obtained access to some material to support such a pleading.  Especially is that so when the manner in which Cadbury sought to, and continues to seek to, establish the alleged “CFP market sharing arrangement” pleaded in paragraph 32 does not appear on its face to be the same as that pleaded by the ACCC and the ACCC proceeding does not deal with PET or Cans.

17                  Moreover, it is unnecessary for me to decide if it was practical for Cadbury to recreate the ACCC case in relation to these 18 customers in the manner alleged.  It is sufficient for present purposes to note that I entertain some real doubt that it was practical for Cadbury to do so having regard to the competitive realities in the market between Cadbury and its competitors and its limited resources compared to those of the ACCC.  In relation to the last matter, Cadbury’s resources were more limited than those of the ACCC if only because the ACCC had compulsory powers available to it (which it used) which were not available to Cadbury.  As I described in earlier reasons for decision concerning whether privilege subsisted in 111 witness proofs produced by the ACCC in relation to the ACCC proceeding, there is a public interest in allowing private litigants like Cadbury to rely on the output of regulatory investigations (such as the ACCC) which are undertaken by those regulators at least in part on their behalf:  see Cadbury Schweppes Pty Ltd v Amcor Limited (2008) 246 ALR 137 at [32].  

18                  In this matter, the forensic practicality of pleading the facts and matters which appear under the “market sharing conduct” rubric appears to have been seen by Cadbury as depending upon access to those 111 witness proofs produced by the ACCC.  I am not persuaded that that judgment was unreasonable, let alone wrong.  Cadbury first sought access to the proofs on 23 October 2007.  Visy opposed Cadbury having access to the proofs and Amcor, at the very least, did not support it having access to them.  On 28 March 2008, I ordered that Cadbury have access to those 111 proofs:  see Cadbury Schweppes Pty Ltd v Amcor Limited (2008) ATPR 42-224.  On 20 March 2009, the Full Court of the Federal Court granted leave but dismissed an appeal from the orders I had made granting production:  see Australian Competition and Consumer Commission v Cadbury Schweppes Pty Ltd (2009) 254 ALR 198.  There was no application for special leave to appeal and as a result, Cadbury finally obtained access to the proofs on 27 March 2009.  Cadbury sought leave to amend its pleading to incorporate some of the matters in the 111 witness proofs on 24 April 2009.  Having regard to the course of events just described, it would be wrong in my opinion to refuse Cadbury leave to make amendments occasioned by it having only recently obtained access to documents it sought as long ago as 23 October 2007.

19                  Amcor and Visy submitted there were a number of other factors which militate against the grant of leave.  Those factors include that the amendments were not required by Cadbury to prove its case, additional discovery would be required, delay and prejudice:  see French J (as he was) in Bomanite Pty Ltd v Slatex Corp Aust Pty Ltd (1991) 32 FCR 379 at 392-393. 

20                  In relation to whether the proposed amendments were needed by Cadbury to prove its case, it is not for a party or parties resisting amendments but denying the substantive allegations to say that an amendment is not necessary to establish the moving party’s case.  As Counsel for Visy ultimately accepted, it might be open for Cadbury to fail to establish paragraphs A to E of the particulars to paragraph 32 but still establish the CFP market sharing arrangement from inferences drawn from the facts and matters set out in the proofs referred to in paragraph F to the particulars.  Even though, as Amcor and Visy submitted, Cadbury appeared willing to conduct its case against Amcor without the proposed amendment, that submission did not take any account of the steps taken by Cadbury to obtain access to the 111 proofs, a process which began in October 2007.  Moreover, as long ago as May 2008, Counsel for Cadbury informed the Court (and therefore Amcor and Visy) that Cadbury’s difficulty in identifying witnesses at that time was exacerbated “by the fact that to date Cadbury has been denied inspection of the 111 witness statements”. 

21                  In relation to the issues of prejudice and delay if leave were granted, I accept that costs are not a universal salve.  I accept that some duplication of effort will result.  I accept that pending litigation, including for publicly listed companies, is itself a detriment.

22                  However, even taking account of all of those considerations, the fair and just resolution of the present matter requires the grant of leave to permit the pursuit of allegations which Cadbury has been seeking to mount since at least October 2007.  Of course, delay will be occasioned and I will need to consider separately how much delay.  There will be additional interlocutory steps including discovery that will need to be completed.  And of course, costs are a necessary price of those matters. 

23                  Before leaving these proposed amendments, it is necessary to say something about the form of the proposed amendments.  Counsel for Visy objected to the form of the proposed paragraph (see [14] above) on the grounds that it lacked specificity.  In general terms, Visy’s complaint was that the ultimate conduct sought to be relied upon by Cadbury to establish as Counsel for Visy put it, that "Visy and Amcor colluded", was not pleaded.  I am not persuaded that the form of the pleading is objectionable.  Often in modern day litigation, particulars are not provided and, instead, parties are ordered to file and serve the relevant evidence.  To some extent that is what has occurred here.  It is cost effective and efficient.  It ensures that, consistent with, O 11 r 5 of the Federal Court Rules, neither Visy (nor Amcor) are taken by surprise.  I note that Amcor did not object to the form of the pleading.  However, if on reflection, Visy remains of the view that it can show a more particular and specific form of prejudice in its preparation for trial because of the form of the particulars, the matters can be raised and addressed in the usual manner.

POST EXPOSURE CONDUCT

24                  The remaining amendments that Cadbury proposed to make are grouped by the pleaders under the heading “Events after the CFP Market Sharing Arrangement was Exposed”.  As that heading suggests, the allegations which Cadbury seeks to add to its pleading are allegations about what has happened in relation to prices, offers and related subjects in relevant markets since “the [relevant] market sharing arrangement was publicly exposed when the ACCC proceeding was commenced on 21 December 2005”:  see para 79A of the PASOC.

25                  Again, the allegations which are proposed to be added under this heading are not, as I understand it, intended to allege any new or different cause of action against Amcor.  Rather, as I understand the added paragraphs, they are intended to provide a further factual basis from which some inference or inferences that will later be alleged may be drawn in support of the central claim by Cadbury for the existence of the CFP market sharing arrangement.  To take one example from the PASOC, it is proposed to add the following particulars to paragraph F(d) under paragraph 32:

(d)        the fact that after the CFP market sharing arrangement was exposed –

(i)         the prices offered to customers and potential customers for CFP were reduced as set out in paragraph 79B below;

(ii)        the prices offered to Cadbury for CFP for beverages, for Cans and for PET bottles were reduced as set out in paragraphs 79D, 79G and 79H below (“Price Reductions”);

(iii)       Visy made a Bundled Offers as set out in paragraph 79C which, if accepted, would have seen Visy supplying all of Cadbury’s beverages’ CFP, PET bottles and Cans requirements provided by Visy;

(iv)       Amcor decided to proceed with the Botany Upgrade.

The cross reference to paragraphs 79D, 79G and 79H in (ii) appears not to be right.  Rather, the cross reference was intended to be to paragraphs 79A to 79D, and 79G to 79J of the PASOC. 

26                  Amcor objects to those amendments concerning Price Reductions, namely paragraphs 79A to 79D, and 79G to 79J.  Again, Amcor and Visy principally complain about delay.  In this regard, it is not unimportant to note that the most immediate trigger for the proposed amendment is that it was not until 30 March 2009 that Cadbury came into possession of a document prepared by Amcor entitled “B9 Capital Expenditure Request – Supporting Information” (“B9”) which is said to show the matters pleaded in proposed paragraphs 79A - 79J, namely that after the CFP market sharing arrangement was exposed, the prices offered to Cadbury for CFP for beverages, for Cans and for PET bottles reduced. 

27                  In hindsight it might be possible to say, as Amcor and Visy do, that even without B9, Cadbury could have put its case in this way much earlier.  So much may be accepted.  The fact, however, is that the amendment is provoked by lately discovered documents (on 30 March 2009 in relation to B9) and the fact that on 17 April 2009, Amcor provided Cadbury with data relied upon by a witness to be called by Amcor.  Those documents, in the words of Compagnie Financiere et Commerciale du Pacficique v Peruvian Guano Co (1882) 11 QBD 55 in relation to discovered documents, led Cadbury on a train of enquiry which resulted in it asserting that that post exposure conduct has significance in deciding whether the unlawful arrangement was of the kind alleged by Cadbury.  The position Amcor finds itself in is not dissimilar to that identified by Jacobson J in Microsoft Corporation v Ben Zhong Fan [2003] FCA 1026 at [79]ff.  Amcor accepts, by its conduct (namely production), that the documents (B9 and the data) are necessary for the fair disposition of the case: see Microsoft [2003] FCA 1026 at [80] – [88].  Those documents may have lead, and in fact have lead, Cadbury on a train of enquiry which may establish another fact – that since the CFP market sharing arrangement was exposed, prices for certain products have reduced.  That issue is now sought to be pleaded by Cadbury.  In my view, it is open to Cadbury to do so.

28                  Counsel for Amcor submitted that close examination of the amendments proposed in relation to post exposure conduct could be shown not to support any inference of the kind which it is evident that Cadbury proposes should be drawn.  In particular, Amcor submitted that the particular transactions identified in the proposed pleading relating to post exposure conduct could be shown to be isolated transactions or transactions not revealing any sufficient foundation for an inference of the kind Cadbury seek to assert should be drawn. 

29                  It would be inappropriate on this application for leave to amend to reach any conclusion about the strength of the arguments each side would seek to make in this regard.  It is enough to say that I am not persuaded that the additional matters Cadbury seek to allege are unarguably bad and indeed, I did not understand Amcor, in the end, to make any such submissions.  Rather, Amcor submitted that leave should be refused because the nature and extent of the work that permitting the amendment would require, outweighed the possible utility of permitting the amendment.  I accept that further work (and, in particular, further discovery) will be required if leave to amend is granted.  Having regard to that consideration, as well as the various other matters I have mentioned earlier (including that the delay that will be occasioned by the amendments to take account of the recent provision of the ACCC proofs), I do not consider that I should shut Cadbury out from pursuing this separate way of seeking to demonstrate what was and remains the case which Cadbury has at all times sought to propound – a CFP market sharing arrangement and a PET and Cans market sharing arrangement:  see [4] above.  Cadbury should be granted leave to make the allegations of post exposure conduct.

CONCLUSION

30                  As I have said, in granting Cadbury leave to file the PASOC, I am prepared to accept that granting leave will occasion further work.  I am not yet persuaded that all of the work identified by Amcor will be necessary or that performance of the necessary work will take as long as 4 to 5 months.  This case has long been delayed.  There comes a point when a trial of the proceeding must commence.  That time has come.  In the circumstances, I will defer the commencement of the trial to 22 July 2009 to enable the parties to complete preparation. 

Associate:

Dated:         5 May 2009