FEDERAL COURT OF AUSTRALIA

Australian Competition and Consumer Commission v Prysmian Cavi E Sistemi Energia S.R.L. [2011] FCA 938

THE COURT ORDERS THAT:

1.    The time for filing the fourth affidavit of Susan Jacquier affirmed on 15 June 2010 be extended to 5 September 2011.

2.    Paragraphs 6 and 7 of the Further Notice to Produce served by Nexans SA and dated 3 August 2010 be set aside.

3.    The ACCC’s amended Notice of Motion filed on 11 August 2010 otherwise be dismissed.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

Introduction

1    The Australian Consumer and Competition Commission (“the ACCC”) claims in the principal proceeding that the first, second and third respondents engaged in price fixing, market sharing and other anti-competitive conduct in contravention of s 45 of the Trade Practices Act 1974 (Cth) (“the TPA”) and the Competition Code (“the Code”). This conduct is commonly referred to as cartel conduct.

2    This is an interlocutory application brought by the ACCC within the principal proceeding to have the contents of annexures to an affidavit affirmed on 15 June 2010 by Ms Jacquier (“the Fourth Jacquier Affidavit”) kept confidential, and the identity of a person described as “Mr A” also kept confidential. The application also seeks orders setting aside two Notices to Produce served by the second respondent. The Fourth Jacquier Affidavit was filed in response to notices of motion issued by the first and second respondents to set aside service upon them of the principal proceedings. The precise orders sought are more particularly described at [68] and [73].

The Parties

3    The ACCC is an independent statutory authority. Its primary responsibility is to ensure compliance with the Commonwealth’s competition, fair trading and consumer protection laws. As such, it is a law enforcement agency that has the responsibility of achieving the primary objective of the TPA, namely the enhancement of the welfare of Australians by fostering competitive, efficient, fair and informed Australian markets: s 2 of the TPA.

4    The first respondent, Prysmian Cavi E Sistemi Energia S.R.L (“Prysmian”), is a foreign corporation incorporated pursuant to the laws of Italy. Between 10 July 2003 and 20 June 2006 Prysmian was registered in Australia, but it is no longer registered.

5    The second respondent, Nexans SA (“Nexans”), is a foreign corporation incorporated pursuant to the laws of France. Nexans has never been registered in Australia.

6    The third respondent, Viscas Corporation (“Viscas”), is a foreign corporation incorporated pursuant to the laws of Japan. Viscas has been registered in Australia since 10 September 2008.

7    Each of the three respondents carry on the business of supplying and offering for supply products including high voltage and extra high voltage land-based electrical cables and accessories, and medium voltage, high voltage and extra high voltage submarine electrical cables and accessories to customers in Australia and throughout the world.

The Principal Proceedings

8    The ACCC seeks declarations that each of the respondents have contravened s 45(2)(a)(i), s 45(2)(a)(ii), s 45(2)(b)(i), and s 45(2)(b)(ii) of the TPA. It also seeks injunctive relief pursuant to s 80 of the TPA restraining each of the respondents for a period of seven years from making, arriving at, or giving effect to an arrangement or understanding with its competitors for the supply of land cables or submarine cables which has the purpose, effect or likely effect of fixing, controlling or maintaining the price at which the respondents supply cable in competition with each other to any customer in Australia. Further, the ACCC seeks orders under s 76 of the TPA that each of the respondents pay such pecuniary penalties as the Court determines to be appropriate for contraventions of the TPA or the Code that occurred after 23 September 2003.

9    The ACCC pleads that at some time prior to October 2001 Prysmian, Nexans, Viscas and Sumitomo Electric Industries (“Sumitomo”) reached a cartel agreement (“the A/R Cartel Agreement”) according to which the cartel members would not compete with one another on price when tendering for projects for the supply of land cables or submarine cables, but would instead agree when particular projects arose which of them would be the successful tenderer for the project.

10    The ACCC alleges that pursuant to the A/R Cartel Agreement, each cartel member would notify the other cartel members when it received an initial inquiry, request for budgetary price or quotation or an invitation to tender from a customer for the supply of land cables or submarine cables, and supply details of the potential project. If the project was at the budgetary price stage cartel members would agree on a minimum price above which they would each submit their budgetary prices if invited to do so by the customer.

11    Alternatively, if a project was at a quotation or tender stage the cartel members would allocate the project to a particular cartel member. The ACCC claims that any allocation was made taking into account whether the project was in a geographic region close to a particular member’s production facilities; whether the project was for a customer with whom a particular member had a strong relationship; whether a member was already associated with the project; the capacity and workload of members; and any specific requests from particular members to be allocated the project.

12    The ACCC alleges that if the project was not allocated to a particular cartel member, it would be allocated to either the A Group or the R Group (called an A Preference or R Preference). The A Group consisted of the Japanese companies Viscas and Sumitomo and the R Group consisted of the European companies Prysmian and Nexans. If a project was given an A Preference or R Preference, the members of the respective Group would decide which of them would be allocated the project.

13    The ACCC alleges that once the project was allocated the other cartel members would then communicate with each other in relation to prices for the project so as to ensure that the cartel member to whom the project had been allocated under the A/R Cartel Agreement submitted the lowest price of the members tendering.

14    The ACCC alleges that pursuant to the A/R Cartel Agreement the cartel members who had not been allocated the project would either not submit a bid for the project or would only submit a bid that was higher than the price at which the allocated member had submitted its bid. This was to ensure that the allocated member would be the successful tenderer.

15    The ACCC alleges that in October 2001 Sumitomo ceased to be a cartel member and was replaced by J-Power Systems Corporation (“JPS”), a foreign corporation incorporated pursuant to the laws of Japan. The ACCC also alleges that in April 2002 Exsym Corporation (“Exsym”), a foreign corporation incorporated pursuant to the laws of Japan, became a cartel member.

16    The ACCC further alleges that cartel members gave effect to the A/R Cartel Agreement by submitting tenders for the supply of land cables and accessories for use in the Snowy Mountains Scheme (“the Snowy Hydro Project”).

17    It is the ACCC’s case that on 12 September 2003 JPS notified the other cartel members that it had received an invitation to tender for the Snowy Hydro Project. It requested that the Snowy Hydro Project be allocated to the A Group pursuant to the A/R Cartel Agreement.

18    The ACCC alleges that on 24 September 2003 the cartel members arrived at an understanding (“the Snowy Hydro Project Agreement”) that pursuant to the A/R Cartel Agreement:

(a)    the Snowy Hydro Project would be allocated to the R Group;

(b)    the R Group would be entitled to nominate the member to which the project would be allocated; and

(c)    the R Group would notify the A Group of the price at or above which a member of the A Group should submit its tender so as to ensure the member allocated the project was the tenderer with the lowest price of the members.

19    The ACCC alleges that between 24 September 2003 and 3 October 2003 members of the R Group agreed that Prysmian would be allocated the Snowy Hydro Project. On 3 October 2003 Prysmian advised the other cartel members of the price at which to submit a tender. On 8 October 2003, Prysmian submitted a tender for the Snowy Hydro Project. The tender price was below that specified in the notification it sent to other cartel members on 3 October 2003.

20    On 8 October 2003, JPS submitted a tender for the Snowy Hydro Project. The tender prices submitted by JPS were above the prices specified in the notification it received from Prysmian on 3 October 2003.

21    The ACCC claims that by arriving at and giving effect to both the A/R Cartel Agreement and the Snowy Hydro Project Agreement, each of Prysmian, Nexans and Viscas contravened s 45(2)(a)(i), s 45(2)(a)(ii), s 45(2)(b)(i), and s 45(2)(b)(ii) of the TPA and the Code.

The ACCC Immunity Policy

22    The ACCC has an immunity policy which it uses in its anti-cartel enforcement in Australia (“Immunity Policy”). The immunity is immunity from legal proceedings. It was published on 25 August 2005, and was accompanied by interpretation guidelines (“Interpretation Guidelines”). These guidelines explain how the ACCC handles applications and requests for immunity.

23    The Immunity Policy has been developed because cartels usually involve secrecy and deception, and cartel conduct is difficult to detect. As paragraph 8 of the Interpretation Guidelines states:

An Immunity Policy in relation to cartels is justified as it encourages insiders to provide information and penetrates the cloak of secrecy.

24    The ACCC uses the Immunity Policy, it says, as a tool in fighting illegal cartel conduct.

25    The Interpretation Guidelines set out the eligibility requirements for corporate immunity and the disclosure obligations that attach to a grant of immunity.

26    Paragraph 4 of the Immunity Policy provides that in order to be eligible for corporate immunity from ACCC initiated proceedings a corporation must have been a party to a cartel, but not the clear leader of the cartel; the corporation must have admitted that its participation in the cartel may constitute a contravention of the TPA; the corporation must have been the first person to apply for immunity in respect of the cartel; the corporation has ceased involvement in the cartel or has indicated to the ACCC that it will cease involvement in the cartel; and at the time the ACCC receives the application for immunity, the ACCC does not have sufficient evidence to commence proceedings for a contravention of the TPA in respect of the cartel.

27    Paragraph 6 of the Immunity Policy imposes disclosure obligations on an applicant for immunity:

An applicant, in addition to satisfying the conditions in paragraph 4 above, must provide full disclosure and cooperation to the ACCC for conditional immunity to remain in place and to be eligible for final immunity.

28    Where a corporation has qualified for corporate immunity, all of its current and former directors, officers and employees may be afforded derivative immunity. Paragraph 9 of the Immunity Policy provides:

Subject to the terms of the immunity application and this policy, if a corporation qualifies for conditional immunity all current and former directors, officers and employees of the corporation who admit their involvement in conduct of the corporation in respect of the cartel and provide full disclosure and cooperation to the ACCC, will be eligible for conditional immunity in the same form as the corporation. Subject to them continuing to provide full disclosure and cooperation to the ACCC, the ACCC will grant them final immunity at the same time as it grants final immunity to the corporation.

29    Paragraph 10 of the Interpretation Guidelines states:

The Immunity Policy applies to cartel conduct and provides protection against civil proceedings instituted by the ACCC. For the purposes of this immunity policy, cartel conduct comprises any of the following categories of conduct engaged in by two or more businesses who are, or otherwise would be, in competition with each other:

•    price fixing

•    market sharing including bid rigging, customer sharing and market allocation

•    agreements not to compete with each other or to limit or restrict competition between them

•    production or sales quotas.

30    The Immunity Policy applies only to actual, as opposed to attempted, contraventions of the TPA.

31    Only the first person approaching the ACCC requesting immunity will be granted conditional immunity, and that conditional immunity is dependent upon the applicant making full, frank and truthful disclosure, and providing the ACCC with all evidence and information in the applicant’s possession or available to the applicant relating to the cartel conduct.

32    The obligation for cooperation is continual throughout the ACCC’s investigation and any ensuing court proceedings.

33    Paragraph 55 of the Interpretation Guidelines identifies the requirements of full disclosure and cooperation, which include (but are not limited to):

(i)    providing full details of all facts known relating to the cartel conduct including when the cartel arrangements operated, who was involved, who had knowledge of the arrangements, how the arrangements began and how they were implemented (including details of meetings etc)

(ii)    not disclosing to other parties or persons any dealings with the ACCC, without the consent of the ACCC, except where required to do so by law. If disclosure is required, the ACCC must be notified prior to the applicant releasing any information. This requirement does not prevent disclosure to competition regulators in other jurisdictions

(iii)    providing to the ACCC promptly and at its own expense all evidence (including documents and other items) and information in its possession, custody or power, wherever located, regarding the cartel conduct for the duration of the investigation and any subsequent court proceedings

(iv)    using its best endeavours to comply with any timetables set down by the ACCC for the provision of information and documents

(v)    being available, or making relevant corporate directors, officers and employees available, upon the request of the ACCC and in a timely fashion to respond to queries and attend interviews

(vi)    responding fully and truthfully to all inquiries of the ACCC, without falsely implicating any person or intentionally withholding any information

(vii)    in relation to corporate applicants—using their best efforts to secure and promote the ongoing, full and truthful cooperation of current and former corporate directors, officers and employees for the duration of the investigation and any subsequent court proceedings which will include:

(a)    encouraging such persons to provide the ACCC with any information that may be relevant to the cartel conduct

(b)    facilitating the ability of such persons to appear for such interviews or testimony in connection with the cartel conduct, as the ACCC may require at the times and places designated by the ACCC (including the payment of travel expenses)

(c)    encouraging such persons to respond completely, candidly and truthfully to all questions asked in interviews and court appearances and make no attempt to protect or falsely implicate any person or entity.

JPS is granted conditional immunity and Mr A derivative immunity

34    JPS made an application for immunity under paragraph 3 of the Immunity Policy. JPS provided information to the ACCC in relation to the alleged cartel conduct and has been granted conditional immunity from prosecution as a result. Mr A, who is not an Australian resident but who is an employee of JPS, has been granted derivative conditional immunity in accordance with paragraph 9 of the Immunity Policy.

35    Mr Gregson, who is the Group General Manager, Enforcement Operations within the Enforcement and Compliance Division of the ACCC, affirmed an affidavit on 8 July 2010 in which he deposed to the circumstances under which JPS was granted conditional immunity and JPS’ current and former directors, officers, and employees including Mr A were granted derivative conditional immunity. He said that JPS was granted conditional immunity on the conditions outlined in the Immunity Policy and explained in the Interpretation Guidelines. The conditions included a condition that JPS provide full disclosure and cooperation to the ACCC. JPS has complied with those conditions, and is continuing to provide full disclosure, and to cooperate with the ACCC.

36    Mr Gregson said that Mr A provided information to the ACCC voluntarily in the course of an interview conducted in September 2009 for the purposes of the ACCC preparing and bringing this proceeding. He said that the ACCC obtained the information on a confidential basis and intended that its records in connection with the interview of Mr A remain confidential and privileged to the extent permitted by law. The ACCC advised Mr A’s lawyers that it would take steps to protect its privileged records arising out of the interview.

37    Mr A indicated at the interview that he would “in due course sign a statement in a form approved by him, but because of the risk of overseas prosecution … he was not prepared to sign a statement at that particular stage”.

38    At the time Mr Gregson affirmed his affidavit, Mr A had not signed a statement or made an affidavit.

39    On 9 November 2009 the ACCC told Mr A’s lawyers that the information provided by him would be included in an affidavit “without referring to him by name as the source of the information obtained in the affidavit”. The information was subsequently included in an affidavit affirmed by Ms Jacquier on 13 November 2009 (“the First Jacquier Affidavit”). This affidavit was used in support of the ACCC’s notice of motion to serve the principal proceedings outside Australia. Ms Jacquier is an officer of the ACCC. The ACCC did not seek Mr A’s consent or permission to include that information in that affidavit.

40    On 4 June 2010 the ACCC told Mr A’s legal representatives that the ACCC intended to identify Mr A “on restricted terms … for the purposes of resisting the respondents’ notices of motion challenging service of the proceedings overseas”.

41    The Fourth Jacquier Affidavit identifies Mr A. Again, although his lawyers were consulted as to the restricted terms of disclosure, the decision to identify Mr A was made without first seeking his consent or permission.

42    The ACCC has been told that Mr A is concerned that if his identity were disclosed as the source of the information in the First Jacquier Affidavit he may be exposed to investigation and criminal charges, and, if criminal charges were brought in the United States, may be incarcerated.

43    The ACCC has stated in paragraph 45 of the Interpretation Guidelines that it will use its best endeavours to protect any confidential information provided by immunity applicants, and so it seeks the orders for confidentiality. Mr Gregson said that the ACCC was concerned to ensure Mr A’s ongoing cooperation.

44    Mr Gregson said that if the documents annexed to the Fourth Jacquier Affidavit that the ACCC seeks to keep confidential were disclosed, JPS could suffer consequences in other jurisdictions.

45    JPS relied upon an affidavit of Mr Reid sworn on 27 July 2010, a partner in the firm of solicitors acting for JPS. Mr Reid deposed to information provided to him by Mr Cook, a solicitor in England and an attorney in the United States, who is presently employed in Belgium and engaged by JPS as its external international counsel.

46    Mr Reid said that JPS provided documents and information to the applicant in connection with its immunity application on the basis that the documents would not be disclosed other than to the applicant’s legal advisers without the prior written consent of JPS. Whilst JPS understood that the applicant may wish to rely on the documents in legal proceedings, JPS did not appreciate that the documents might be required to be disclosed at the very early stages of the proceedings, and before the respondents had submitted to the Court’s jurisdiction.

47    JPS understands that if service were set aside against Prysmian and Nexans, the respondents may not see themselves as being bound by any obligation of confidentiality, and further, the respondents might not be subject to the censure of the Court. Mr Reid said that JPS was particularly concerned that JPS’ confidential documents might be disclosed to other regulatory authorities including those in the United States of America.

48    Mr Reid said that he has been informed that if JPS had been made aware that its documents would be disclosed to third parties at this early stage of the proceedings, and before the respondents had submitted to the Court’s jurisdiction, JPS would not have been as willing to provide documents and assistance to the ACCC. In particular, JPS would have been less likely to have obtained cooperation and other assistance from Mr A and other employees.

49    Mr Reid said that he has been advised that the disclosure of Mr A’s identity and the confidential documents would be likely to discourage Mr A and other current and former JPS employees from continuing to assist JPS. If that were the case, JPS’ ability to assist the applicant would be impeded.

50    Mr A’s solicitor, Mr Christopher, swore an affidavit on 19 July 2010 in which he deposed that Mr A had also retained Mr Farmer of Collette Erickson Farmer & O’Neill LLP as his lawyer in the United States. Mr Farmer is an experienced antitrust lawyer in the United States.

51    On 12 July 2010 Mr Christopher wrote to Mr Farmer in relation to Mr A’s position. Mr Farmer replied on 12 July. In that letter Mr Farmer said, “I am alarmed at the prospect of further disclosure of the identity of Mr. A …”. He continued:

I am aware that the Antitrust Division of the United States Department of Justice has an active investigation of alleged cartel conduct by companies in the power cable industry, including Japan Power Systems. Disclosure of the identity of Mr. A in the ACCC proceedings to anyone other than Australian counsel who have given confidentiality undertakings subject to the control of the Australian court could result in public or other disclosure of Mr. A’s identity in a way that is beyond the control of the Australian court. Such disclosure could cause Mr. A to be subject to and involved in the U.S. Department of Justice investigation and related proceedings, given his position in the company and his role in the events investigated by the ACCC. As far as I know, the U.S. Department of Justice has not been made aware of Mr. A’s role as a knowledgeable informant in the ACCC proceedings. Investigations by the Antitrust Division of the U.S. Department of Justice routinely involve formal and informal demands or requests for interviews and/or testimony and sometimes lead to criminal prosecution of both individuals and companies. Individuals convicted in the U.S. of cartel conduct affecting U.S. commerce are subject to jail sentences of up to ten years. While I do not believe that Mr. A has violated the criminal laws of the U.S., being drawn into the investigation can be extremely disruptive, stressful and expensive.

52    Mr Christopher agreed with the contents of Mr Gregson’s affidavit and, in particular, that Mr A understood that the interview with the ACCC would be conducted on a confidential basis and that the ACCC had assured Mr A that the ACCC would not waive legal professional privilege or public interest immunity privilege. Mr Christopher also said that prior to the interview the ACCC had stated “public interest immunity would appear likely to attach should a third party seek to access any records of the interview, in addition to the separate legal professional privilege residing in the notes”. Mr Christopher said that Mr A agreed to be interviewed on the basis of those statements and assurances.

53    He said that prior to the applicant filing evidence in these proceedings he, on behalf of Mr A, informed the ACCC, and the ACCC acknowledged, that Mr A was not at that stage prepared to give evidence voluntarily as he could be the subject of a current investigation by the US Department of Justice for matters similar to those raised in these proceedings.

54    Mr Christopher said that Mr A has informed him that Mr A is very concerned that if his identity as an informer was revealed the authorities in the United States might make him a priority for investigation and prosecution. Mr A is also concerned that he might suffer “reputational damage, embarrassment or other difficulties in his dealings with his direct reports and other colleagues who are not aware of his role in the present proceedings”.

55    Mr A has not yet decided whether he will give evidence as a witness for the ACCC in these proceedings.

Procedural History

56    By Notice of Motion dated 6 November 2009 the ACCC sought leave to serve the originating application and statement of claim on Prysmian in Italy and on Nexans in France. Leave was required because service was to take place outside of Australia: Order 8 Rule 3(2) of the Federal Court Rules.

57    Order 8 Rule 3 provides:

3    Application for leave to serve originating process outside Australia

(1)    Service of an originating process on a person in a foreign country is effective for the purpose of a proceeding only if:

(a)    the Court has given leave under subrule (2) before the application is served; or

(b)    the Court confirms the service under subrule (5); or

(c)    the person served waives any objection to the service by entering an appearance in the proceeding.

(2)    The Court may give leave to a party to serve an originating process on a person in a foreign country in accordance with a convention, the Hague Convention or the law of the foreign country, on such terms and conditions as it considers appropriate, if the Court is satisfied that:

(a)    the Court has jurisdiction in the proceeding; and

(b)    the proceeding is of a kind mentioned in rule 2; and

(c)    the person seeking leave has a prima facie case for all or any of the relief claimed by the person in the proceeding.

Note 1   The law of a foreign country may permit service through the diplomatic channel or service by a private agent.

Note 2   Order 8A, Division 2 deals with service of local judicial documents in a country, other than Australia, that is a party to the Hague Convention.

(3)    The evidence on an application for leave under subrule (2) must include the following:

(a)    the name of the foreign country where the person to be served is or is likely to be;

(b)    the proposed method of service;

(c)    a statement that the proposed method of service is permitted by:

(i)    if a convention applies — the convention; or

(ii)    if the Hague Convention applies — the Hague Convention; or

(iii)    in any other case — the law of the foreign country.

(4)    Nothing in this rule prevents the Court from giving leave to a person to give notice, in a foreign country, of a proceeding in the Court on the basis that giving the notice takes the place of serving the originating process in the proceeding.

(5)    If an originating process was served on a person in a foreign country without the leave of the Court, the Court may, by order, confirm the service if the Court is satisfied that:

(a)    paragraphs (2) (a), (b) and (c) apply to the proceeding; and

(b)    the service was permitted by:

(i)    if a convention applies — the convention; or

(ii)    if the Hague Convention applies — the Hague Convention; or

(iii)    in any other case — the law of the foreign country; and

(c)    the failure to apply for leave is sufficiently explained.

58    The ACCC submitted that leave should be granted as each of the requirements in subrule 3(2) were satisfied. In particular, the ACCC submitted that the Court had jurisdiction in the proceeding by reason of s 86 of the TPA, which expressly confers jurisdiction on the Federal Court to hear matters arising under Part VI of the TPA, including a claim for injunctive relief pursuant to s 80 or pecuniary penalties pursuant to s 76.

59    The ACCC contended that the second requirement was made out because the proceeding was of a kind mentioned in O 8 r 2. Order 8 Rule 2 relevantly provides:

2    When originating process may be served outside Australia

Subject to rule 3, an originating process may be served on a person in a foreign country in a proceeding which consists of, or includes, any 1 or more of the kinds of proceeding mentioned in the following table:

60    The ACCC submitted that because its claim was for injunctive and declaratory relief and pecuniary penalty orders under the TPA and the Federal Court of Australia Act 1976 (Cth) (“the Federal Court Act”), this proceeding is one “in relation to … the enforcement of an Act” within the meaning of item 13 of O 8 r 2. Alternatively, it argued that the proceeding fell within items 1, 11, 16, and 21 of O 8 r 2.

61    The ACCC asserted that it had a prima facie case for the relief claimed because the affidavit material it presented demonstrated that a justiciable controversy existed between the parties.

62    The ACCC filed two affidavits in support of its Notice of Motion: the affidavit of Mr Parkyn, the ACCC’s solicitor, affirmed 6 November 2009; and the First Jacquier Affidavit. The ACCC relied on the First Jacquier Affidavit as evidence of the existence of a cartel arrangement for the fixing and controlling of prices in respect of the sale of cables in countries outside Australia.

63    On 24 November 2009 the ACCC was granted leave pursuant to O 8 r 3 to serve the application and statement of claim upon Prysmian in Italy and Nexans in France. Service on Prysmian was to be effected in accordance with the Convention between the United Kingdom and Italy regarding Legal Proceedings in Civil and Commercial Matters (London, 17 December 1930), and service on Nexans was to be in accordance with the Convention between the United Kingdom and France regarding Legal Proceedings in Civil and Commercial Matters (London, 2 February 1922).

64    Orders were made that Exhibits SJ-14, SJ-15 and SJ-16 to the First Jacquier Affidavit be sealed and that access to those documents be restricted to the parties to the proceedings. Those exhibits were in a redacted form. However, the ACCC sought such orders because the exhibits in question contained “commercially sensitive” information.

65    Prior to May 2010, Prysmian and Nexans were both served with the application and statement of claim in Italy and France respectively.

66    On 29 March 2010 Nexans filed a Notice of Motion seeking that the order granting the ACCC leave to serve outside Australia be discharged. On 11 May 2010 Nexans filed an Amended Notice of Motion which, in addition to the orders sought in the original motion, sought an order that service be set aside. On 7 May 2010 Prysmian filed a Notice of Motion seeking the same orders as those set out in Nexans’ Amended Notice of Motion.

67    On 8 June 2010 Nexans issued a Notice to Produce. The Notice to Produce was dated 8 May 2011. The terms of the Notice purported to require the ACCC to produce:

1.    All documents to which the deponent had regard for the purposes of affirming paragraphs 24 to 32 of the Jacquier Affidavit, including, without limitation, all documents recording, referring or relating to:

(a)    the identity of “Mr A” referred to at paragraph 25 of the Jacquier Affidavit;

(b)    the “A/R Cartel Agreement” referred to at paragraph 25 of the Jacquier Affidavit; and

(c)    the “A/R meetings” referred to at paragraph 25.5 of the Jacquier Affidavit;

(d)    the “Snowy Hydro Project” referred to at paragraph 26 of the Jacquier Affidavit.

2.    All documents in the possession of the Applicant comprising or relating to any application or applications by or on behalf of J-Power Systems Corporation or any related body corporate or any other corporation or individual applying for immunity or leniency, derivative immunity or leniency under the applicable ACCC Immunity Policy for Cartel Conduct or ACCC Co-operation Policy for Enforcement Matters.

3.    An unredacted version of Exhibit SJ-14 referred to at paragraph 25.6.14 of the Jacquier Affidavit.

4.    An unredacted version of Exhibit SJ-15 referred to at paragraph 25.6.15 of the Jacquier Affidavit.

5.    An unredacted version of Exhibit SJ-16 referred to at paragraph 25.9 of the Jacquier Affidavit.

The “Jacquier Affidavit” was defined in the Notice to mean the affidavit of Ms Jacquier affirmed on 13 November 2009, that is, the First Jacquier Affidavit.

68    In response, the ACCC sought to have the Fourth Jacquier Affidavit and its annexures which the ACCC relied on in response to the Prysmian and Nexans’ Notices of Motion treated as confidential and only disclosed to the Court and the Australian legal representatives of the respondents who had signed a confidentiality undertaking. It sought the following orders:

1.    Pending further order, the contents of and annexures to the fourth affidavit of Susan Jacquier affirmed 15 June 2010 and to be filed on behalf of the applicant in these proceedings be treated as confidential and not disclosed other than to:

1.1    the Court;

1.2    the applicant and its legal representatives in these proceedings;

1.3    persons to whom the applicant makes disclosure for the purposes of enabling those persons to assert a claim of confidentiality over the contents in these proceedings;

1.4    external solicitors and counsel admitted to practice in Australia who are engaged to represent the first respondent for the purposes of the first respondent’s motion filed 7 May 2010 and who have signed a confidentiality undertaking in the form annexed to these orders;

1.5    external solicitors and counsel admitted to practice in Australia who are engaged to represent the second respondent for the purposes of the second respondent’s amended motion filed 11 May 2010 and who have signed a confidentiality undertaking in the form annexed to these orders;

1.6    external solicitors and counsel admitted to practice in Australia who are representing the third respondent in this proceeding and who have signed a confidentiality undertaking in the form annexed to these orders.

2.    The time for filing by the applicant of the fourth affidavit of Susan Jacquier affirmed 15 June 2010 be extended to the date upon which the motion in relation to Order 1 above is determined.

3.    The notice to produce dated 8 June 2010 served upon the applicant by the second respondent be set aside; alternatively that the applicant be excused from compliance with the notice.

4.    Costs.

69    Annexed to the notice of motion was a confidentiality undertaking to be executed in the event that the orders in paragraphs 1.4, 1.5, and 1.6 were made.

70    If the orders sought are made, those documents and Mr A’s identity would only become known to the Court and the persons described in paragraphs 1.2 to 1.6 of the notice of motion. The respondents would not have access to the documents nor would they know Mr A’s identity.

71    On 3 August 2010 Nexans filed an amended Notice to Produce (“the Amended Notice to Produce”) which was identical to its original Notice served on 8 June 2010 except that paragraph 2 had been deleted and the following substituted:

2.    All documents referred to in paragraph 45 of the affidavit of Scott Peter Gregson affirmed 8 July 2010.

72    On 3 August 2010 Nexans filed a further Notice to Produce (“the Further Notice to Produce”) seeking:

1.    All documents that record communications, or the substance of communications, between the Australian Competition and Consumer Commission (“ACCC”) and Mr “A”, or between the ACCC and Mr “A”’s legal representatives, and which state or refer to any terms or conditions upon which Mr “A” has provided, or will provide, information to the ACCC relating to the alleged cartel arrangements the subject of these proceedings.

2.    All documents that record communications, or the substance of communications, between the ACCC and J-Power Systems Corporation (“JPS”), or between the ACCC and the legal representatives of JPS, and which state or refer to any terms or conditions upon which JPS has provided, or will provide, information to the ACCC relating to the alleged cartel arrangements the subject of these proceedings.

3.    All documents that record communications, or the substance of communications, referred to at each of paragraphs 17, 18, 19, 20, 21, 30, 31, 46, 47, 48 and 49 of the affidavit of Scott Peter Gregson affirmed 8 July 2010 (“the Gregson Affidavit”).

4.    All documents provided to the ACCC by Mr “A” relating to an application for immunity, or derivative immunity, by Mr “A” with respect to the subject matter of this proceeding.

5.    All documents provided to the ACCC by current or former directors, officers and employees (other than Mr “A”) of JPS relating to:

(a)    the application for immunity of JPS referred to at paragraph 11 of the Gregson Affidavit; or

(b)    any application for immunity, or derivative immunity, by any current or former director, officer or employee of JPS,

with respect to the subject matter of this proceeding.

6.    All documents provided to the ACCC by Exsym Corporation (“Exsym”) relating to an application for immunity or leniency by Exsym with respect to the subject matter of this proceeding.

7.    All documents provided to the ACCC by current or former directors, officers and employees of Exsym relating to:

(a)    any application for immunity or leniency by Exsym; or

(b)    any application for immunity, leniency, derivative immunity or derivative leniency by any current or former director, officer or employee of Exsym,

with respect to the subject matter of this proceeding.

73    On 11 August 2010 the ACCC responded by filing an Amended Notice of Motion. In addition to those orders mentioned above at [68], the ACCC seeks orders in paragraphs 3 and 4 of its Amended Notice of Motion that the Court set aside both the Amended Notice to Produce dated 3 August 2010 and the Further Notice to Produce dated 3 August 2010, or alternatively that it be excused from compliance with the Notices, and that it be awarded costs, including costs thrown away by Nexans’ amendment of its original Notice to Produce.

74    These reasons address the ACCC’s Amended Notice of Motion.

The First Hearing

75    The applicant and the three respondents appeared on the ACCC’s Amended Notice of Motion. Prysmian and Nexans opposed the orders sought by the ACCC in respect of the Fourth Jacquier Affidavit. Nexans opposed the ACCC’s application to set aside the Notices to Produce.

76    Viscas accepted that the unredacted JPS documents and Mr A’s identity need not be disclosed beyond the respondents and their lawyers. However, it opposed the further limitation sought to be imposed. It contended that the contents of the JPS documents and the identity of Mr A should be disclosed to Viscas and its external lawyers now and not some later time so that it can properly conduct its defence. Viscas has entered an appearance in the principal proceeding and has thereby submitted to the jurisdiction of the Court, and its lawyers would be subject to an “implied undertaking”: Harman v Secretary of State for the Home Department [1983] 1 AC 280.

77    The “implied undertaking” is a substantive obligation imposed by law to prevent the use of information or documents disclosed in legal proceedings for any purpose other than that for which it was given. As Hayne, Heydon and Crennan JJ explained in Hearne v Street (2008) 235 CLR 125 at [96]-[97]:

Where one party to litigation is compelled, either by reason of a rule of court, or by reason of a specific order of the court, or otherwise, to disclose documents or information, the party obtaining the disclosure cannot, without the leave of the court, use it for any purpose other than that for which it was given unless it is received into evidence. The types of material disclosed to which this principle applies include documents inspected after discovery, answers to interrogatories, documents produced on subpoena, documents produced for the purposes of taxation of costs, documents produced pursuant to a direction from an arbitrator, documents seized pursuant to an Anton Piller order, witness statements served pursuant to a judicial direction and affidavits. …

It is common to speak of the relevant obligation as flowing from an “implied undertaking”.

(Footnotes omitted)

78    JPS and Mr A were also represented at the hearing of the ACCC’s application without objection by any of the parties to the principal proceeding. No orders were sought or made permitting their intervention. All parties recognised that JPS and Mr A were entitled to be heard in relation to an application which vitally affected their interests.

79    Prysmian and Nexans have not submitted to the jurisdiction of the Court. Indeed, they seek to set aside service on the ground that the Court does not have jurisdiction.

80    It was not argued by Viscas or indeed by any of the respondents that the ACCC will have to tender the Fourth Jacquier Affidavit together with its exhibits on Prysmian and Nexans’ application to set aside service, and when that occurs the respondents will be relieved from the implied undertaking: r 20.03 of the Federal Court Rules 2011. Prysmian and Nexans could not know at this stage whether r 20.03 (or O 15 r 18 of the Federal Court Rules) will operate to release them from the implied undertaking.

81    In seeking to set aside the Notices to Produce the ACCC relied upon the affidavit of Mr Gregson affirmed on 8 July 2010 to which reference has already been made. That affidavit was sworn before the first Notice to Produce was amended by the insertion of a new paragraph 2, and before the Amended Notice to Produce was served.

82    Mr Gregson identified the documents that JPS provided the ACCC pursuant to its immunity application. Those documents were extracted from JPS’ records. He said that on each occasion JPS provided documents, the documents were accompanied by correspondence claiming confidentiality in the documents and requesting that the documents not be disclosed to a third party without JPS’ prior consent. JPS has not given that consent, except to the extent implied in the ACCC’s Amended Notice of Motion. Mr Gregson said that JPS is concerned that if the documents were provided it may face prosecution outside Australia.

83    The ACCC also relied upon an affidavit sworn on 17 August 2010 by Ms Close, a solicitor employed by its solicitors in relation to its application to set aside the Notices to Produce. She deposed to her compilation of an index of documents prepared by the ACCC in response to the two Notices to Produce. She said that she had reviewed the files held by the ACCC’s solicitors, and that to further review the files in their entirety would require a review of more than 2,500 emails as well as some 60 folders of hard copy documents, which would take some three weeks at a cost of more than $50,000.

84    Ms Close said that she had also reviewed documents extracted from ACCC’s files over a period of some nine days. She identified those documents that she said attracted legal professional privilege at paragraphs 16 to 26 of her affidavit. She separately identified those documents that were confidential communications between the applicant and JPS, and JPS’ solicitors, which she said attracted public interest immunity. She said that the applicant did not waive its claim for legal professional privilege or its claim for public interest immunity.

85    Ms Close also said that the ACCC maintains a claim of public interest immunity over each document on its files and its solicitor’s file that discloses the identity of Mr A; reveals confidential information provided to the ACCC by JPS; or discloses confidential dealings between JPS and the ACCC in relation to the terms upon which JPS would provide information to the ACCC or the terms of that disclosure by the ACCC.

Confidentiality of the Fourth JacquierAffidavit

86    The ACCC’s application has been made to ensure that Mr A’s identity is not disclosed, other than in accordance with paragraph 1, at this stage of the proceedings. The documents the subject of the ACCC’s proposed confidentiality orders, the Fourth Jacquier Affidavit and its annexures, reveal the identity of Mr A because they include unredacted versions of the documents forming exhibits SJ-14, SJ-15 and SJ-16 to the First Jacquier Affidavit.

87    The ACCC submitted that confidentiality should be protected on two bases. First, by the application of the principles relevant to public interest immunity; and secondly, by the making of an order pursuant to s 50 of the Federal Court Act.

88    I turn now to set out the submissions advanced by each of the parties, and JPS and Mr A, in respect of these two grounds.

Non-disclosure on grounds of Public Interest Immunity

89    The ACCC submitted that it was in the public interest for Mr A’s identity to remain confidential. It argued that the same protections afforded to police informers in terms of ensuring anonymity and treating information as confidential should be given to the informers of regulatory bodies such as the ACCC.

90    The ACCC contended that the underlying policy rationale for providing such protection in both cases is to encourage the flow of information regarding unlawful conduct. It submitted that the early disclosure of the identity of informers would operate to discourage this flow of information and consequently undermine the ACCC’s effective enforcement of the relevant provisions of the TPA dealing with cartel conduct.

91    The ACCC asserted that the proper starting point in police informer cases, which it claimed were analogous, is that the Court will not disclose the identity of an informer when it is not necessary in the interests of justice so to do. The only exception to this rule, according to the ACCC, is where the identity of the informer is relevant to the innocence of an accused person in a criminal trial: D v National Society for the Prevention of Cruelty to Children [1978] AC 171 at 218 per Lord Diplock.

92    The ACCC argued that the same rule should be applied to information given by informers in respect of breaches of the TPA because there is “a significant public interest in providing a level of protection to whistleblowers and informers…where the information concerns the formation and operation of cartels.” It also asserted that the exception to the general rule was not made out in this case because non-disclosure of Mr A’s identity to the respondents in no way prejudices them at this preliminary stage of the proceedings.

93    The ACCC advanced two further reasons to support its claim that the contents of and annexures to the Fourth Jacquier Affidavit should remain confidential.

94    First, the ACCC submitted that Prysmian and Nexans have not yet entered an appearance in this proceeding and therefore have not submitted to the jurisdiction of this Court. For this reason, the ACCC argued that if the respondents’ application to set aside service is successful and the orders made granting leave to serve outside Australia are discharged, neither Prysmian nor Nexans will be bound by the “implied undertaking” as to confidentiality in respect of affidavits or any specific order the Court makes as to the confidentiality of documents. Further, it submitted Prysmian and Nexans would not be liable to punishment for contempt in the event that any affidavit was used for a collateral purpose.

95    The second reason advanced by the ACCC was that the respondents do not require the identity of Mr A in order to agitate their application to set aside service. The ACCC submitted that issues of credibility and reliability are irrelevant to such an application because the applicant is merely required to establish a prima facie case and the Court will consider the applicant’s evidence in its most favourable light. Further, the ACCC asserted that in any event the identity of Mr A would not assist the respondents in successfully pursuing the application.

96    JPS adopted the ACCC submissions and added that in the absence of an order ensuring confidentiality, there was a real risk that the documents would be used for a collateral purpose, and that JPS employees might be discouraged from cooperating with JPS in assisting the ACCC in its prosecution of the other cartel members. Further, it submitted that future leniency applications in Australia might be severely affected if parties who have not submitted to the Court’s jurisdiction, such as Prysmian and Nexans, are given unrestricted access to documents provided to the ACCC on a confidential basis.

97    Mr A was separately represented and put separate submissions in support of the ACCC’s Notice of Motion to have the Fourth Jacquier Affidavit treated as confidential.

98    Mr A accepted that there are two lines of competing authority where the courts have considered releasing the identity of an informer. However, Mr A submitted that, on any understanding of those authorities, in his case disclosure was not justified.

99    He submitted that there is authority for the proposition that the identity of an informer will only be disclosed where there is “good reason” to think that non-disclosure would result in substantial prejudice to an accused person. Mr A submitted that under this test the Court is not required to balance the public interest in non-disclosure against the public interest in favour of open justice: Cain v Glass (No 2) (1985) 3 NSWLR 230 at 248 per McHugh JA; R v Smith (1996) 86 A Crim R 308 at 311-12; Jarvie v The Magistrates’ Court of Victoria at Brunswick [1995] 1 VR 84 at 90 per Brooking J with whom Southwell and Teague JJ agreed. Rather, the question is whether the accused person would suffer substantial prejudice. Mr A submitted that if this test were accepted, the Court cannot be satisfied that there is “good reason” to think that non-disclosure of Mr A’s identity would result in substantial prejudice to either Prysmian or Nexans.

100    Alternatively, Mr A asserted there was a line of authority to the effect that in determining whether to disclose the identity of an informer, the Court must balance the public interest in non-disclosure to protect the identity of informers against the public interest in open justice: ASIC v P Dawson Nominees Pty Ltd (2008) 169 FCR 227 at 234. If this test were accepted as relevant, Mr A submitted that on balance his identity should not be disclosed.

101    Mr A asserted that there is a strong public interest in his identity not being disclosed. First, it is in the public interest to protect informers from threats. Mr A emphasised that he held a genuine and well-founded concern that if his identity were to be disclosed, it is likely that he would be investigated, prosecuted and possibly imprisoned in various foreign jurisdictions for his involvement in the alleged cartel conduct. He submitted that the importance of his ongoing anonymity was underscored by the fact that disclosure of his identity would result in “overseas investigation or criminal prosecution, as well as reputational damage and ostracism”. Further, he asserted that disclosure would not only reveal his identity as an informer, but also the type of information he had provided to the ACCC.

102    Secondly, counsel for Mr A argued that disclosure of his identity was not in the public interest because it is likely to deter future informers from coming forward and giving information to regulators such as the ACCC. Mr A asserted that the public interest in non-disclosure in the circumstances of this case is acute because of the serious nature of cartel proceedings, and the important role that volunteer informers play in identifying and prosecuting cartels.

103    Mr A submitted that there was little public interest in disclosing his identity. Given the preliminary nature of the proceedings and the low evidentiary threshold to be met by the ACCC, Mr A argued that the interests of open justice are in no way served by the disclosure of his identity.

104    Prysmian submitted that insofar as the ACCC and Mr A objected to disclosure of his identity on the basis that it may lead to him being investigated and potentially prosecuted in another jurisdiction, it was not in the public interest to preserve Mr A’s anonymity because:

(a)    JPS, as the immunity applicant, was the primary informer of the ACCC, not Mr A;

(b)    the ACCC has publically disclosed the identity of JPS;

(c)    JPS has not complained about the disclosure of its identity;

(d)    there is no evidence that JPS has been discouraged from coming forward, or that any other immunity applicant, informer or other corporation would be discouraged from coming forward, as a result of disclosure of Mr A’s identity.

105    Prysmian further submitted that as Mr A’s identity will inevitably be disclosed in the proceeding at some time, there is no public interest or utility in refusing to disclose it now to the respondents.

106    Prysmian asserted that it was entitled to the benefit of that information to assist in defending the claim made against it. It submitted that because of the evidence of Mr Christopher and Mr Farmer (Mr A’s solicitors in Australia and the United States respectively) that Mr A has not engaged in any illegal conduct, it was entitled to know his identity so that it could properly investigate and examine Mr A’s assertions.

107    Therefore, Prysmian argued that the facts of this case came within the exception justifying disclosure of an informer’s identity in that there was “good reason to think that disclosure may be of substantial assistance to the defendant in combating the case for the prosecution”: Jarvie v The Magistrates’ Court of Victoria at Brunswick at 90 per Brooking J.

108    Prysmian denied that because it had not filed an appearance it would not be amenable to the Court’s jurisdiction if it were successful in its application to set aside service. Prysmian submitted that it was entitled to make its application without first entering an appearance: Trade Practices Commission v The Gillette Company (No 1) (1993) 45 FCR 366 at 367-370 per Burchett J. Prysmian rejected the ACCC’s assertion that it would not be bound by an “implied undertaking” of confidentiality, accepting that it and its officers would be so bound.

109    Prysmian submitted that, contrary to the ACCC’s submission, the credibility of witnesses is relevant in the balancing exercise that the Court has to undertake in considering the ACCC’s application: Jarvie v The Magisrates’ Court of Victoria at Brunswick at 91 per Brooking J; approved in Haydon v Magistrates Court (2001) 87 SASR 448 at [30] per Doyle CJ and at [117] per Perry J.

110    Further, Prysmian submitted that the documents annexed to the Fourth Jacquier Affidavit are not confidential because of other evidence adduced by the ACCC. The first annexure (“SJ-A”) is a communication from Nexans to Mr A, while the second and third annexures (“SJ-B” and “SJ-C”) are records of communications between JPS, Mr A, Nexans, Prysmian and Viscas. Prysmian asserted there was no basis on which confidentiality of these documents could be claimed vis-à-vis the respondents. Also, there is no evidence that confidentiality was claimed by JPS or guaranteed by the ACCC.

111    Alternatively, if the documents were once confidential, Prysmian submitted that they are no longer confidential. Prysmian contended that JPS volunteered information to the ACCC in order to gain a commercial advantage and the provision of information to the ACCC was inconsistent with the preservation of confidentiality: AWB Ltd v Cole (No 5) (2006) 155 FCR 30 at [152]-[153] per Young J; Seven Network Ltd v News Ltd (2005) 144 FCR 379.

112    Ultimately, Prysmian contended that the doctrine of public interest immunity should not be allowed to exclude evidence absent any compelling reason so to do: Goldberg v Ng (1994) 33 NSWLR 639 at 662F-663E per Mahoney JA. It submitted that in this case there was no such compelling reason and that “… if damage [has] been established, it would in any event be reduced to acceptable dimensions by Prysmian’s consent to confidentiality on an interim basis if confidentiality is established”.

113    Nexans submitted that the proper test to determine whether the identity of an informer should be disclosed is whether the public interest in disclosure of an informer’s identity outweighs any public interest in non-disclosure: ASIC v P Dawson Nominees Pty Ltd at 234. It submitted that the Court is required to undertake a balancing exercise. Further, it argued that an immunity claim will fail where the proponent cannot establish any harm to the public interest by the production of the information: Alister v The Queen (1984) 154 CLR 404 at 412 per Gibbs CJ. It submitted that the issue of harm to the public interest is a threshold matter which must be satisfied before the Court is required to undertake the balancing exercise.

114    Nexans asserted that in adopting the balancing test the Full Court in ASIC v P Dawson Nominees Pty Ltd rejected the approach taken by McHugh JA in Cain v Glass (No 2) (relying on D v National Society for Prevention of Cruelty to Children) that public interest immunity provided absolute protection to informers subject to the sole exception to which reference has been made. Nexans submitted therefore that the proposition advanced by the ACCC and relied upon by JPS and Mr A was not supported by the authorities.

115    Nexans submitted that when the proper test is applied the ACCC’s claim for public interest immunity must fail as it cannot establish that disclosure would cause harm to the public interest. The lack of harm, according to Nexans, is demonstrated because the ACCC has conceded that Mr A’s identity will be disclosed at some later stage of the proceedings, and that it has already agreed to partial disclosure to the respondents’ legal representatives.

116    Further, Nexans argued that JPS and Mr A must have been aware that their identities would be disclosed as a condition of being granted conditional immunity under the ACCC’s Immunity Policy. The Immunity Policy imposes on informers the obligation of full and frank cooperation and assistance in return for immunity from civil penalty proceedings.

117    Nexans also submitted that disclosure would not undermine any claimed confidentiality attaching to communications between Mr A and the ACCC because such communications were not of a confidential nature. Nexans argued that the communications could not reasonably be expected to remain confidential given JPS, as a cartel participant, knew that the information it provided to the ACCC would be used to prosecute other cartel participants.

118    Nexans relied on the comments of Gordon J in Cadbury Schweppes Pty Ltd v Amcor Ltd (2008) 246 ALR 137 at [30]:

… A cartel claim, by definition, involves collusion between two or more actors. In the same way that it is both inevitable and self-evident that the statements of a cooperating criminal conspirator will be used against (that is, disclosed to) the non-cooperating conspirators, it must be taken for granted that a cartel participant contemplating a confession to the authorities knows, or should know, that his statements will be used by the authorities to prosecute the other party or parties. As such, the ACCC’s claim that a party like Amcor can have a reasonable expectation of confidentiality with respect to statements made to investigators is devoid of substance. …

119    Nexans submitted that this Court should follow that decision, and that accordingly the ACCC’s claims of confidentiality in respect of Mr A’s identity should be rejected.

120    Alternatively, if the Court found that disclosure would cause harm or would not be in the public interest, Nexans submitted that when applying the necessary balancing exercise the public interest in disclosing material evidence which the ACCC intends to rely upon for its case against the respondents far outweighs any public interest in preserving confidentiality.

121    Nexans asserted that to withhold such material from a party to a penalty proceeding was a “fundamental affront to the concepts of open justice and procedural fairness”. Nexans submitted that the public interest in open justice and ensuring procedural fairness outweighed any public interest in preserving confidentiality.

122    Questions of procedural fairness arise, Nexans submitted, because without complete access to Mr A’s identity or the Fourth Jacquier Affidavit it is unable to properly agitate its application to set aside service. Nexans claimed that without disclosure it is unable to inquire of its records and staff about the accuracy of what Mr A is alleged to have said and done, or to determine what, if any, evidence it may wish to advance in its application.

123    Nexans further submitted that if the orders sought by the ACCC were made, it would be deprived of the benefit of its external legal advisers, who are not admitted to practice in Australia, because those orders seek to limit disclosure to the respondents’ “external solicitors and counsel admitted to practice in Australia”. Nexans submitted that it would be contrary to the proper administration of justice if confidentiality were extended as sought by the ACCC because the Court would be deprived of the ability to conduct a proper re-hearing of the respondents’ application relating to service, and be hampered in its determination as to whether a controversy exists between the parties that warrants the use of the Court’s processes for its resolution and justify the involvement of foreign respondents in litigation in Australia.

124    Viscas asserted that there was no reason why it should be denied access to the Fourth Jacquier Affidavit or its annexures, given that the primary reason advanced by the ACCC as to why the respondents should not have access to all the documents is that Prysmian and Nexans have not submitted to the jurisdiction of this Court and are contesting service. It argued that because it had entered an appearance and is not seeking to set aside service and has submitted to the jurisdiction, the main objection raised by the ACCC does not apply to Viscas. Viscas is subject to an “implied undertaking” that it will only use any documents for the purpose of these proceedings, and it would be subject to the jurisdiction of the Court if it used the documents for any other purpose.

125    In any event, Viscas submitted that for the reasons identified by Prysmian and Nexans the public interest in keeping Mr A’s identity confidential was outweighed by the public interest that a party to a proceeding should have access to all of the evidence against it.

Non-disclosure Order under s 50 of the Federal Court Act

126    In the event that the Court refused to make an order for confidentiality on the grounds of public interest immunity, the ACCC and Mr A submitted that the Court should make such an order under s 50 of the Federal Court Act.

127    Section 50(1) provides:

The Court may, at any time during or after the hearing of a proceeding in the Court, make such order forbidding or restricting the publication of particular evidence, or the name of a party or witness, as appears to the Court to be necessary in order to prevent prejudice to the administration of justice or the security of the Commonwealth.

128    Mr A submitted that an order ensuring the confidentiality of Mr A’s identity as an informer was necessary to prevent prejudice to the administration of justice. Mr A further submitted that disclosure of the identity of an informer was a matter of public interest that could prejudice the administration of justice, and therefore engage s 50. He relied on the comments of Bowen CJ in Australian Broadcasting Commission v Parish (1980) 29 ALR 228 at 233, which were approved by the High Court in Hogan v Australian Crime Commission (2010) 240 CLR 651 at [42]. In Australian Broadcasting Commission v Parish, Bowen CJ said at 233:

The possible cases where an order may be necessary to prevent prejudice to the administration of justice range fairly widely. The categories of this public interest are not closed and must alter from time to time whether by restriction or extension as social conditions and legislation develop (see D v National Society for Prevention of Cruelty to Children [1978] AC 171, per Lord Hailsham at 230; Science Research Council v Nasse [1978] 3 All ER 1196; [1979] 3 WLR 762, per Lord Fraser at 784 — cases concerning discovery).

129    Nexans submitted that the ACCC failed to advance any reasons why the suppression of the identity of Mr A and the annexures to the Fourth Jacquier Affidavit is necessary to prevent prejudice to the administration of justice, as is required by s 50.

130    Nexans asserted that an order under s 50 cannot be made on the basis that disclosure of Mr A’s identity may be embarrassing or damaging or that he may be exposed to investigation or prosecution in other jurisdictions as a consequence of disclosure, and that this may be disruptive, stressful or expensive. Nexans submitted that the risk that disclosure would result in criminal investigation or prosecution outside of Australia does not affect the administration of justice in this jurisdiction and therefore cannot be grounds for an order pursuant to s 50.

131    For the same reasons identified by Nexans, Viscas also submitted that the ACCC had failed to demonstrate that a s 50 order preventing disclosure was necessary.

Further Evidence

132    After completion of submissions the decision was reserved.

133    Subsequently, Nexans’ solicitors wrote to the Court advising that there had been a development that might bear upon the issues raised in the interlocutory applications.

134    In that communication Nexans’ solicitors referred to administrative proceedings in Brazil and the disclosure of certain corporations and individuals in relation to those proceedings. They wrote:

We are presently trying to determine the full extent of the potential impact of those developments on the submissions made by any party with respect to the reserved motion. However, in the interests of ensuring that this development was brought to the Court’s attention at the earliest opportunity, we write to respectfully request that the matter be relisted for further directions at the Court’s convenience by which time we expect that we and the other parties may be in a position to inform the Court whether an application will be sought to be made on behalf of any party for leave to advance additional evidence and/or submissions on the application. If we form the view that no application should be made, we would of course inform you immediately.

135    The matter was relisted for further directions and at that time the following orders were made:

1.    Any party to the proceedings that wishes to do so file and serve any evidence and supplementary submissions in relation to the applicant’s reserved motions on or before 31 January 2011.

2.    Any party or interested party to the proceedings file and serve any submissions in reply in relation to the applicant’s reserved motions on or before 14 February 2011.

3.    Liberty to apply on short notice.

4.    Costs be reserved.

136    On 1 February 2011 Nexans filed an affidavit sworn on that date by Mr Collins, a partner in the firm of solicitors acting for Nexans, which addressed the matters that had been foreshadowed in a communication to the Court prior to the directions hearing.

137    Mr Collins deposed that on 12 November 2010 the Secretary of Economic Law (SDE) of the Ministry of Justice in Brazil published a public notice in the Federal Official Journal of Brazil stating that it had opened an Administrative Proceeding against a number of companies and individuals in relation to alleged cartel conduct. The companies include Prysmian, Nexans and Viscas, but not JPS. The notice also referred to certain individuals who are employees of JPS. An Administrative Proceeding is in the nature of a proceeding for the imposition of a civil penalty.

138    In addition to the Notice in the Federal Official Journal, on 28 January 2011 the SDE also released to the named companies and individuals a Technical Report, which formed the basis for the decision to commence the Administrative Proceedings, and the full file of all information and documents relevant to the allegations made against all defendants in that proceeding. This included a record of the names of companies alleged to have been involved in the collusive conduct.

139    The Technical Report is confidential and the defendants are prohibited under Brazilian law from using the information for any purposes other than defending the Administrative Proceeding. However, it is the usual practice of the SDE to make a redacted version of the Report publicly available, and such a version of the Report was provided to representatives of Nexans on 28 January 2011 (“the non-confidential Technical Report”).

140    The non-confidential Technical Report has been released. That report identifies the parties who are said to have been involved in the cartel conduct. The parties include all three respondents and JSP.

141    The ACCC relied upon an affidavit of Mr Kamencak, affirmed on 14 February 2011, in which Mr Kamencak said that he had been told by the SDE that it has a leniency applicant in the proceedings in Brazil whose identity remains confidential. The leniency applicant is a corporate entity and does not include any individuals. Under article 74 of the SDE leniency program confidential information and documents are disclosed to the parties to the Brazil proceedings on the parties signing an undertaking as to confidentiality. Those parties are not at liberty to disclose that confidential information to other persons, and are not to use it for any purpose other than to defend the Brazil proceedings. In those circumstances, Nexans is not permitted to use the confidential information in these proceedings.

Further Submissions

142    On 1 February 2011 Nexans filed supplementary submissions in which it introduced new evidence concerning the disclosure of Mr A’s identity outside Australia. Nexans submitted that the further evidence supported its argument for disclosure of Mr A’s identity. It asserted that it is reasonable to infer from the fact that JPS is not named as a defendant in the Administrative Proceeding that it is the subject of immunity in Brazil in addition to being the immunity applicant in the present proceedings.

143    Nexans submitted that with the publication of the Federal Official Journal internationally, there are two publicly available documents that name JPS employees in connection with alleged cartel conduct. Because the identity of JPS employees is already known to regulators in foreign countries such as the United States, Nexans argued that Mr A’s identity can be readily identified by other international antitrust regulators by reference to the proceedings on foot in Brazil and Australia.

144    Nexans submitted that the ACCC’s argument that Mr A’s identity should not be fully disclosed so as to avoid the risk of investigation and prosecution of Mr A in other jurisdictions should therefore be rejected. It submitted that the naming of Mr A in the Brazilian proceedings demonstrates there is no utility in the Court continuing to suppress the identity of Mr A in this proceeding.

145    Further, Nexans asserted that the Technical Report made available to it by Brazilian authorities disclosed information which is likely to be the same information that the ACCC seeks to withhold in opposing disclosure of the Fourth Jacquier Affidavit. If the information in the Report is wholly congruent with the contents of the Fourth Jacquier Affidavit, Nexans submitted there is no basis or utility in preventing disclosure. Alternatively, if the information is not congruent, Nexans asserted that it should be entitled to examine the Fourth Jacquier Affidavit for the purposes of testing the credibility or reliability of the evidence put before the Court by the ACCC in support of its Order 8 rule 3 application.

146    The ACCC submitted that the conclusions drawn from the additional evidence by Nexans were no more than speculative and based on assumptions that were factually incorrect. It argued that Nexans’ submissions assume that Mr A is cooperating with the Brazilian authorities and has been granted leniency in the administrative proceeding. The ACCC submitted that this assumption was incorrect as the evidence indicates that only a corporate entity, as opposed to an individual, has been granted leniency.

147    The ACCC asserted that Nexans’ submissions conflate the naming in documents of individuals who are assumed to include Mr A, with the identification of Mr A as the informer in the Australian proceeding. The ACCC contended Nexans’ argument does not address the basis upon which the ACCC seeks to prevent the disclosure of Mr A’s identity.

148    Further, the ACCC argued that because Nexans has been provided with the Technical Report that should not affect the terms upon which JPS should have been prepared to accept disclosure of its material in this proceeding, particularly given the Technical Report was provided to Nexans on the basis that it must not be used for any purpose other than defending the proceedings in Brazil. The ACCC argued that the provision of information on terms of restricted use and disclosure should not influence or determine the terms upon which material is separately disclosed by the ACCC in this proceeding.

149    The ACCC submitted that there was no merit in Nexans’ argument that it should have access to the Fourth Jacquier Affidavit so that it can determine any “non-congruence” between what has been produced by JPS to the ACCC in this proceeding, and material produced by the leniency applicant in Brazil. If Nexans were to use the material received from Brazilian authorities in that way, Nexans would be in breach of the restricted terms on which the information was provided.

150    Mr A opposed Nexans’ application to introduce new evidence. He submitted that Nexans was attempting, without leave, to reopen the hearing to adduce further evidence or make further submissions on aspects of the hearing which had already been concluded. Leave to reopen should be refused, Mr A argued, because Nexans did not identify any new information relating to the identity of Mr A.

Submissions on the Notices to Produce

151    At the hearing it became apparent that the ACCC sought to have both the Amended Notice to Produce and the Further Notice to Produce set aside on two main grounds. First, the ACCC argued that the Notices constitute an abuse of the Court’s process because they have no legitimate forensic purpose at this point of the proceeding and constitute “fishing”.

152    Secondly, it submitted that the Notices are oppressive because they are not confined to material relevant to the question of whether leave to serve overseas should be revoked, and because Nexans has failed to confine in any way the specific nature of the documents sought such that the ACCC would incur considerable cost and expense in complying with the Notices.

153    If the ACCC were unsuccessful in having the Notices to Produce set aside, the ACCC sought in the alternative that it be excused from compliance with the Notices.

154    In relation to the ACCC’s submission that there is no legitimate purpose for the Notices to Produce, the ACCC asserted that the Notices are “just classic fishing.” It submitted that because the ACCC is only required to establish a prima facie case when applying for leave to serve outside of Australia, the evidentiary standard to be met is lower than that applicable to a final hearing. The Court is not required to engage in a substantial inquiry of the issues, but rather undertake a broad examination of the material and determine whether inferences are open that would support the relief claimed.

155    For this reason, the ACCC submitted that the documents sought by Nexans, in particular those documents sought pursuant to paragraph 1 of the Amended Notice to Produce, are beyond the scope of the type of evidence required to be adduced given the limited nature of the inquiry.

156    Paragraph 1 of the Amended Notice to Produce sought all documents to which Ms Jacquier had regard for the purposes of affirming paragraphs 24 to 32 of the First Jacquier Affidavit. The ACCC submitted that the effect of that Notice on its terms was “to fish for possible material with which to challenge the affidavit”.

157    The ACCC asserted that any challenge to the sufficiency of its evidence to establish a prima facie case does not require production of the underlying or surrounding material. Furthermore, it submitted that Nexans had not pointed to any reason why the preparation or presentation of its application to set aside service of the proceeding would be impaired simply because it does not know the identity of Mr A.

158    Nexans denied that the Notices are without “legitimate forensic purpose” or constitute “fishing”. It submitted that the Notices serve a “legitimate forensic purpose” in that they request documents that “are of material importance to [Nexans’] O 9 application and to the Court’s assessment of the weight to be given to the Applicant’s arguments for leave to serve the originating process … overseas”.

159    Nexans argued that the purpose of the Notices is clear, namely that they seek to examine whether the information available to Ms Jacquier at the time of affirming her first affidavit provides a basis for the hearsay assertions she has made. Nexans asserted that procedural fairness dictated that it should be entitled to test Ms Jacquier’s evidence, particularly as her evidence relies on hearsay evidence from an unnamed source and comprises the substance of the ACCC’s prima facie case.

160    To the extent that the Notices seek the production of material referred to in the affidavit, Nexans relied on O 15 r 10 of the Federal Court Rules.

161    In the alternative, the ACCC argued that the Notices are oppressive because the documents sought are not relevant to the Court’s inquiry into whether the ACCC has put forward sufficient material to establish a prima facie case.

162    Furthermore, the ACCC argued that the Notices, and in particular paragraph 2 in the Amended Notice, do not identify with any specificity the documents sought. It pointed to the time and expense that would be involved in complying with the Notices, such time and cost being set out in the affidavit of Ms Close to which I have referred above at [83].

163    Nexans denied that the ACCC’s assertion that the terms of the Notices are oppressively wide. Nexans submitted that the test for oppression is whether the notice to produce is so wide as to impose an onerous task on the party burdened with production to collect and produce documents. Nexans argued that the test was not satisfied in these circumstances because all the ACCC is required to do “is make a copy of documents on its file which fall within the terms of the Notice, and produce them to [Nexans]”.

164    Nexans also denied that the documents sought by Notices lack relevance. It asserted that the Notices have been formulated narrowly, and, at least in relation to the Amended Notice, only seek production of written records that provide the basis for Ms Jacquier and Mr Gregson’s information and belief.

165    Nexans argued that the documents have at least “adjectival relevance” as they throw light on the issues in the O 9 r 7 application. At the hearing counsel for Nexans went further and submitted that the material sought in the Notices was “substantially” relevant to both the existence of a prima facie case and the strength of that case.

166    Accordingly, Nexans submitted that the Court should reject the ACCC’s argument that the Notices should be set aside because the information contained in the documents sought is irrelevant.

167    The ACCC submitted in the alternative that if the Court did not set aside the Notices, the Court should exercise its discretion to excuse the ACCC from complying with the Notices. It argued that it should be excused from compliance because every document it had identified that it would have to produce under the Notices is the subject of either public interest immunity or legal professional privilege.

168    The ACCC also argued that an order requiring it to produce the documents sought in the Notices was contrary to the public interest in the proper administration of justice because such production may cause prejudice to the operations of the ACCC and discourage potential informers from giving information.

169    Further, it argued that it was contrary to the interests of the administration of justice for an overseas respondent to use the Court’s compulsory processes in order to resist submitting to jurisdiction and to “fish” amongst the documents that the ACCC has received relating to immunity applications in relation to the proceedings.

170    In its written submissions the ACCC also raised s 157B of the TPA, which provides that the ACCC is not to be required to produce or disclose “protected cartel information” except with the leave of the Court. The ACCC conceded that s 157B does not apply in this case because the conduct the subject of these proceedings pre-dates the commencement of that section. However, it argued that it is relevant to note, when considering whether the ACCC should be excused from complying with the Notices, that had the alleged conduct occurred today, the issuing of the Notices would not have been permissible without leave.

171    Nexans denied that production of the documents sought would be contrary to the public interest in the administration of justice. In this regard, it relied on its submissions concerning disclosure of the identity of Mr A and the exhibits to the Fourth Jacquier Affidavit.

172    Nexans further submitted that s 157B of the TPA does not aid the ACCC in this case because, as the ACCC concedes, any information provided by Mr A as an informer was provided before that section commenced operation.

173    Alternatively, if the Court did consider s 157B to be relevant in this case, Nexans argued that it would not aid the ACCC because its scope is limited to protecting confidential information in circumstances where there is a fear of reprisals or a liability to third parties. Nexans submitted there was no credible evidence that these concerns arose in this case.

174    Nexans also submitted that the ACCC’s reliance on s 157B was inconsistent with its assertion that disclosure of the information provided by Mr A would harm the public interest by discouraging potential informers from coming forward in the future. This inconsistency arose because information provided by informers such as Mr A will be in future protected from disclosure by the regime in s 157B.

The Issues

175    Those short facts and lengthy submissions raise three separate issues for decision.

176    First, whether the contents of and annexures to the Fourth Jacquier Affidavit and Mr A’s identity should be treated as confidential and not disclosed other than to the persons mentioned in paragraph 1 of the Amended Notice of Motion, because of public interest immunity.

177    Secondly, if the documents and Mr A’s identity are not protected by public interest immunity, whether an order should be made under s 50 of the Federal Court Act forbidding or restricting the publication of the documents except in accordance with the regime proposed in ACCC’s Amended Notice of Motion, and forbidding or restricting the publication of Mr A’s identity in order to prevent prejudice to the administration of justice.

178    Thirdly, whether the Notices to Produce should be set aside because they were not served for a legitimate purpose and are “fishing”; or they are oppressive and not confined to relevant material; or whether an order should be made excusing the ACCC from complying with the Notices.

179    I will deal with each of these three issues in turn.

Public Interest Immunity

180    The ACCC carries the onus of establishing the claim for public interest immunity. It is a heavy burden that requires the ACCC to “establish a ‘real’ rather than merely ‘some’ or ‘any’ detriment to the public interest from disclosure” of the documents or information: Somerville v Australian Securities Commission (1995) 60 FCR 319 at 354 per Lindgren J; Cadbury Schweppes Pty Ltd v Amcor Ltd at [26] per Gordon J.

181    One of the instances where public interest immunity has arisen is in relation to the identity of and information provided by police informers. In D v National Society for the Prevention of Cruelty to Children Lord Diplock explained the reasons why police informers enjoy having their identity protected by the immunity. The main reason is that the disclosure of the informer’s identity to the accused person would discourage informers coming forward, which would inhibit the flow of information to the police and hinder their ability to prevent or detect crime. His Lordship said at 218:

The rationale of the rule as it applies to police informers is plain. If their identity were liable to be disclosed in a court of law, these sources of information would dry up and the police would be hindered in their duty of preventing and detecting crime.

Lord Simon of Glaisdale made a similar point at 232. See also Cain v Glass (No 2) at 233-234 per Kirby P and at 247 per McHugh JA.

182    The Full Court of this Court has recognised that this type of public interest immunity can apply to civil proceedings, and that the public interest in encouraging informers is “as important to a regulatory agency such as ASIC as it is to police in their traditional role”: ASIC v P Dawson Nominees Pty Ltd at [32] and [48]. The same can be said for the ACCC. Without informers, cartel conduct would be difficult to detect, and so there is without question public interest in encouraging informers to come forward.

183    Lord Diplock went on to note in D v National Society for the Prevention of Cruelty to Children at 218 that:

… the public interest in preserving the anonymity of police informers had to be weighed against the public interest that information which might assist a judicial tribunal to ascertain facts relevant to an issue upon which it is required to adjudicate should be withheld from that tribunal. By the uniform practice of the judges which by the time of Marks v. Beyfus, 25 Q.B.D. 494 had already hardened into a rule of law, the balance has fallen upon the side of non-disclosure except where upon the trial of a defendant for a criminal offence disclosure of the identity of the informer could help to show that the defendant was innocent of the offence. In that case, and in that case only, the balance falls upon the side of disclosure.

184    The test that applies in Australia is not as strict as put by Lord Diplock. It is not the case that the identity of an informer will not be disclosed unless it can be demonstrated that the identity of the informer “could help to show that the defendant was innocent of the offence.” Rather, as the Full Court of this Court made clear in ASIC v P Dawson Pty Ltd, the Court is required to undertake a balancing exercise: at [28].

185    The public interest in preventing disclosure in order to protect informers, and thereby encourage that informer and other informers to come forward in the future, must be weighed against the public interest in ensuring that the Court has access to all relevant evidence, and the public interest in ensuring that defendants, at least in criminal proceedings, receive a fair trial. It is neither helpful nor appropriate to introduce presumptions into the exercise. Each case will be different.

186    The issue in this case is not whether the Court or the respondents should ever have access to Mr A’s identity. The ACCC accepted that Mr A’s identity and the documents would need to be disclosed to the respondents at some point prior to the trial in order to ensure that the respondents receive a fair trial. Rather, the issue here is whether the respondents are entitled to Mr A’s identity and the documents at this stage in the proceeding.

187    Accordingly, the public interest in protecting Mr A’s anonymity at this stage in the proceeding must be balanced against the public interest in ensuring that the respondents are able to prepare their case adequately. In particular, consideration needs to be given to whether Prysmian and Nexans require the documents and Mr A’s identity in order to prepare for the application to have service of the proceedings set aside, bearing in mind that the ACCC is willing to disclose the documents and information to those Australian lawyers of the respondents who have signed confidentiality undertakings.

188    Before turning to consider this question it is important to appreciate that Mr A is in a somewhat different position to that of a police informer. The harm that non-disclosure seeks to prevent to a police informer is harm from the accused person who has been informed on. If the identity of the informer is disclosed, the accused person may take retaliatory action against the informer. This might have the effect of intimidating potential future informers. Accordingly, there is a public interest in protecting the informer to prevent this harm.

189    However, the harm Mr A says he will suffer as a result of the disclosure of the documents is that the documents might come to the attention of prosecuting authorities in other jurisdictions, and that he might then be subject to investigation and civil or criminal proceedings in those jurisdictions. Put another way, the harm Mr A complains of is that he may be prosecuted in other jurisdictions for his conduct.

190    It is not the role of this Court, or indeed the informer rule in the context of public interest immunity, to protect Mr A from lawful prosecution in other jurisdictions. The adverse consequences that he might suffer in other jurisdictions for conduct that may be unlawful in those jurisdictions are not matters of public interest in this jurisdiction.

191    Accordingly, I do not think that the risk of prosecution in other jurisdictions is a matter to which I should have regard in determining whether Mr A’s identity should be released without conditions, or whether the documents should be given to the respondents without conditions. For the same reason the fact that Mr A may decide not to give evidence in this proceeding is also not relevant. The ACCC recognises that the respondents must know Mr A’s identity before the trial to enable the respondents to enjoy their right to a fair trial. Mr A knows that his identity is to be disclosed at some time, and before he is due to give evidence. He will make his decision as to whether he will cooperate with the ACCC to retain his derivative immunity by giving evidence knowing that the respondents are aware of his identity.

192    That is not to say that there is no harm to which the ACCC, JPS and Mr A can point to that is relevant to the balancing exercise. In ASIC v P Dawson Nominees Pty Ltd at [51]-[52] that:

[51]    … Rightly or wrongly, informers are often regarded with disfavour. Their motives are often questioned – sometimes justifiably, although the public interest is not confined to protection of those informers who act from pure altruism. Persons contemplating whistleblowing would realise that disclosure of their identity may cause them harm in ways they never find out – employment or promotions not offered, friendships undermined.

[52]    That such adverse consequences may ensue is not to be dismissed as speculative. …

Those matters are relevant on this application, although the extent of such harm is mitigated to some degree in this case by O 46 r 6(3) of the Federal Court Rules.

193    Order 46 rule 6(1) permits a person to inspect a document of the kind mentioned in subrule (2) in a proceeding. An affidavit is not such a document. An affidavit may only be inspected by a person not a party with leave of the Court: O 46 r 3. In those circumstances, a person not a party would only be entitled to inspect the Jacquier affidavits with leave of the Court.

194    However, the effect that allowing disclosure would have on future possible informers is a matter to be taken into account. The TPA recognises that the promotion of competition and fair trading will enhance the welfare of Australians: s 2. It is in the public interest to ensure that proscribed anti-competitive behaviour by corporations is detected in order that persons who engage in that conduct might be brought before the courts.

195    Therefore, it is in the public interest to encourage future informers to cooperate with the ACCC, and it must be accepted that disclosure of Mr A’s identity in these circumstances could have the effect of deterring future informers from coming forward and giving information about cartel conduct. To paraphrase what the Full Court said in ASIC v P Dawson Nominees Pty Ltd, there may be potential future informers who decide that informing the ACCC of cartel conduct “is just not worth it”: at [52]. This may prejudice the ACCC’s investigations in this and other cases. It may also limit the assistance that JPS can provide to the ACCC, since it may discourage other employees who may have relevant information from coming forward.

196    However, against this must be weighed the public interest in ensuring that the respondents receive a fair trial.

197    The respondents are not required to point to some identifiable miscarriage of justice that they would suffer if Mr A’s identity was withheld from them. Rather, the question is whether there is good reason to think that disclosure of Mr A’s identity might substantially assist the respondents prepare for the application to have service of the proceedings set aside.

198    When an application is made under O 9 r 7 to have service of a proceeding set aside, the applicant must establish for a second time that it has a prima facie case; the applicant having previously established the existence of such a prima facie case on the application for leave to serve an originating process outside of Australia under O 8 r 3 of the Federal Court Rules. The applicant will do so where it can show by credible evidence that inferences are open which translate into findings of fact that support the relief claimed: ACCC v April International Marketing Services Australia Pty Ltd (No 6) (2010) 270 ALR 504 at [8] per Bennett J.

199    An application under O 9 r 7 is not intended to give rise to a substantial inquiry, “since the purpose is to determine by way of a mini rather than a mega trial whether the applicant has a prima facie case”: WSGAL Pty Ltd v Trade Practices Commission (1992) 111 ALR 126 at 130 per Beaumont J. The threshold is not high. In Armacel Pty Ltd v Smurfit Stone Container Corporation (2008) 248 ALR 573 at [46], Jacobson J said “[t]he Court is not required to trawl through the material to determine the strength of the case.” However, this does not diminish the importance of the respondents’ right to know whether the evidence that has been adduced is sufficiently reliable or indeed capable of supporting the inferences for which the ACCC contends.

200    In an application to set aside service, the Court conducts a review, by way of rehearing, of the original decision to grant leave. The review hearing enables the respondent to put facts, arguments or materials before the Court that might suggest that leave should not have been granted.

201    Importantly, it will be open to Prysmian and Nexans to argue on the application to have service set aside that the ACCC’s claim has insufficient prospects of success to warrant putting them to the time, expense and trouble of defending the claim: Agar v Hyde (2000) 201 CLR 552 at [55] per Gaudron, McHugh, Gummow and Hayne JJ.

202    Information provided by Mr A was used in the preparation of the First Jacquier Affidavit, which was relied on by the ACCC in support of its application for leave to have the proceedings served on Prysmian and Nexans. Information emanating from Mr A was used to support the ACCC’s submission that it had a prima facie case.

203    In particular, it would seem that information from Mr A was used to support the allegation that there is an A/R Cartel Agreement, as well as the allegations as to the terms of that agreement. Mr A also provided information to support the allegations made by the ACCC in relation to the Snowy Hydro Project. It would seem he or JPS provided the ACCC with an email that was sent by JPS pursuant to the A/R Cartel Agreement to the respondents, and that in response JPS received “price guidance” from the respondents.

204    The information provided by Mr A enabled the ACCC to make the serious allegations that it has. I do not intend by that to express any view on the strength of the allegations made by the ACCC. For present purposes, it is sufficient to say that information provided by Mr A appears to form the basis of many of the allegations made by the ACCC, allegations that the ACCC needs to make out in order to prove its case.

205    Mr A has, through his lawyers, asserted that he has not engaged in any illegal conduct, at least in other jurisdictions. Accordingly, it may be that Mr A’s credibility is in issue on any application by the respondents to have service of the proceeding set aside, as it may be at trial.

206    I agree with Prysmian and Nexans’ submissions that whilst the respondents may be able to deduct or make an educated guess as to the identity of Mr A, it is difficult for the respondents to search their records and make inquiries of their staff about the allegations made by Mr A without being sure of his identity. It would also make it more difficult for Prysmian and Nexans to determine what (if any) evidence they should lead on any application to have service of the proceedings set aside.

207    Furthermore, it would be difficult for the respondents to test the assertions made on behalf of Mr A that he has not engaged in any illegal conduct. The respondents are entitled to test these assertions against the allegations he has made as to the existence of the A/R Cartel Agreement, and the participation of JPS and the respondents in that agreement. It is critical at this stage that the respondents have the opportunity to explore this possibility. It follows that I agree with the observation made by Brooking J in Jarvie v The Magistrates’ Court of Victoria at Brunswick at 91 that:

[t]here is no reason why, in a strong enough case, the necessary substantial prejudice [to the defendant] could not consist in the inability to gather and use material bearing on the credibility of a witness for the prosecution of some importance where the credibility of that witness was really in question.

See also Haydon v Magistrates Court at [30] per Doyle CJ.

208    It may be the case that once Mr A’s identity is revealed it becomes apparent to Prysmian and Nexans that there is a proper controversy existing between them and the ACCC, and that accordingly it is not worthwhile pressing their application to have service of the proceeding set aside. The fact is, without the documents and knowledge of Mr A’s identity, Prysmian and Nexans would find it difficult to assess the strength of the ACCC’s claim.

209    The ACCC’s principal argument, which was supported by JPS, was that Prysmian and Nexans have not submitted to the jurisdiction, and are therefore neither bound by the “implied undertaking” as to confidentiality nor liable to punishment for contempt in the event that any document was used for a collateral purpose. JPS argued that there is a real risk that if disclosed Mr A’s identity would be used for a collateral purpose by Prysmian and Nexans, especially if their applications to set aside service were successful.

210    I do not accept this argument. It is clear from the judgment of Hayne, Heydon and Crennan JJ in Hearne v Street that in addition to binding the litigant, “[t]he implied undertaking also binds others to whom documents and information are given”: at [109].

211    In Hamersley Iron Pty Ltd v Lovell (1998) 19 WAR 316 Anderson J, with Pidgeon and Ipp JJ agreeing, said at 334-335:

The implied undertaking is binding upon anyone into whose hands the discovered documents come, if he knows that they were obtained by way of discovery.

212    As Hayne, Heydon and Crennan JJ went on to note in Hearne v Street at [111]-[112]:

If this principle did not exist, the “implied undertaking” or obligation on the litigant would be of little value because it could be evaded easily. That is why Lord Denning MR said in Riddick v Thames Board Mills Ltd: “The courts should … not allow the other party – or anyone else – to use the documents for any ulterior or alien purpose. Otherwise the courts themselves would be doing injustice”. And in the same case Stephenson LJ also said: “[I]t is important to the public and in the public interest that the protection should be enforced against anybody who makes improper use of it.” Use with knowledge of the circumstances would be improper use.

There is no support in the authorities for the idea that knowledge of anything more than the origins of the material in legal proceedings need be established. In particular, there is no support for the idea that knowledge of the “implied undertaking” and its consequences should be proved, for that would be to require proof of knowledge of the law, and generally ignorance of the law does not prevent liability arising.

(Footnotes omitted)

213    Prysmian and Nexans would be subject to the “implied undertaking” not to use the documents or information for any purpose other than that for which it was given, namely to help them to prepare for an application to set aside service and, if that application is withdrawn or unsuccessful, their defence to this proceeding. They conceded as much. If they breach this “implied undertaking” they could be liable to be punished in this Court.

214    It may be that if service of the proceedings on Prysmian and Nexans is set aside and Prysmian and Nexans are never called upon to submit to the Court’s jurisdiction, the Court would find it more difficult to punish those parties if the parties breached the implied undertaking. However, they are represented by Australian lawyers who are officers of the Court and who are also within the Court’s reach.

215    In any event, the ACCC’s argument, even if it could succeed against Prysmian and Nexans, could not succeed against Viscas. Viscas has submitted to the jurisdiction. Given that the ACCC has conceded that the respondents will be entitled to the documents and Mr A’s identity at some stage in the proceeding, and that its main argument in relation to Prysmian and Nexans presently having access is that they have not submitted to the jurisdiction, there can be no reason why Viscas should not be entitled to the documents and information now. It is entitled to this information to help it prepare its defence to the proceeding.

216    Three final points need to be made.

217    First, while the terms of paragraph 1 of the ACCC’s Amended Notice of Motion would permit limited disclosure of the documents and Mr A’s identity to the Australian solicitors acting for the respondents, that is no reason why disclosure should not be made to the respondents. As is evident from these reasons, in order to prepare their case properly the respondents may need to conduct internal searches and make inquiries of their staff. Furthermore, the respondents are foreign companies with foreign lawyers advising them. They are entitled to seek advice in relation to these proceedings from those foreign lawyers. Subject to rule 20.03 of the Federal Court Rules 2011, Prysmian and Nexans, and their foreign lawyers, would not be able to use the documents or the information contained in the documents or Mr A’s identity in relation to other proceedings or potential proceedings in this jurisdiction or any other without leave of the Court.

218    Secondly, it was submitted that the respondents had not provided any evidence of the prejudice they would suffer if the information was not disclosed. In my view it was not necessary for them to do so. The respondents asserted that they would be unable to test Mr A’s assertions without knowing his identity. The prejudice is obvious. In any event, it is for the ACCC to establish the existence of the privilege. It cannot say that the privilege exists because there is no prejudice to the respondents if they do not have access to the material.

219    Thirdly, Mr A submitted that by allowing Prysmian and Nexans to have access to the documents they would gain access not only to his identity as an informer but also the type of information he had provided to the ACCC. It is difficult to see how this submission has any substance. While disclosure of the name of an informer is one thing, and accessing the detail of that information is another, the ACCC has showed where it has relied on information provided by Mr A. Indeed it was obliged to do so. The application for leave to serve out of Australia and the application to set aside service are both interlocutory hearings. In both applications the ACCC has relied upon hearsay evidence provided in part by JPS and Mr A.

220    Section 75 of the Evidence Act 1995 (Cth) provides that the hearsay rule does not apply to evidence in an interlocutory hearing “if the party who adduces it also adduces evidence of its source”. For that reason, Ms Jacquier was obliged to identify the source of the hearsay evidence she gave in her first and fourth affidavits.

221    In a broad way, the respondents are already aware of the nature of the information provided by Mr A. The documents might contain other information. However, it is difficult to see how the public interest would be harmed by the respondents having access to this additional information, which the ACCC says it relies upon. This is not a case where a police informer might be put at greater risk by allowing access to the content of the information sought to be relied upon in addition to the identity of the informer.

222    It appears that the information provided by Mr A is an important part of the ACCC’s case. As such, disclosure of his identity at this stage may be in the words of Brooking J “…  of substantial assistance to the [respondents] in combating the case for the [applicant]”: Jarvie v The Magistrates’ Court of Victoria at Brunswick at 90; Haydon v Magistrates Court at [30] per Doyle CJ. In my view, requiring the disclosure of Mr A’s identity does not undermine or undervalue the importance of the public interest disclosure. This is not a case where the disclosure only has the potential to be of some assistance to the respondents: see Haydon v Magistrates Court at [30] per Doyle CJ.

223    For these reasons, the ACCC’s claim that it is in the public interest for the documents and Mr A’s identity to remain confidential must fail. It bears the onus of establishing that it is in the public interest for the information to remain confidential, and while the respondents have not pointed to any specific prejudice that they might suffer if they do not have access to Mr A’s identity and the documents, I have reached the view that the information will enable the respondents to test the allegations made by the ACCC that it has a prima facie case.

224    As I am satisfied that it is in the public interest for the documents and Mr A’s identity to be disclosed, it is not strictly necessary to deal with the other submissions put by the respondents. However, I should say that if I am wrong, and that the public interest in maintaining Mr A’s identity outweighs the public interest in ensuring that the defendants receive a fair trial, the fact that Mr A’s identity may have been disclosed in Brazil in connection with alleged cartel conduct would not mean that the public interest immunity is lost in this proceeding.

225    This Court is concerned both with protecting the anonymity of informers and encouraging potential future informers in this jurisdiction. In my view, it would undermine one of the main purposes of the immunity if disclosure in other countries of information the subject of public interest immunity in Australia could cause the informer to lose the protection of the immunity. In this respect it is important to appreciate that public interest immunity is not, strictly speaking, a privilege that can be waived. Rather, as Lord Reid said in R v Lewes Justices, Ex parte Secretary of State for the Home Department [1973] AC 388 at 400:

There is no question of any privilege in the ordinary sense of the word. The real question is whether the public interest requires that the letter shall not be produced and whether that public interest is so strong as to override the ordinary right and interest of a litigant that he shall be able to lay before a court of justice all relevant evidence.

See also Air Canada v Secretary of State for Trade [1983] 2 AC 394 at 436 per Lord Fraser of Tullybelton.

226    However, I add that the Brazilian proceedings tend to demonstrate the futility of the ACCC’s application to keep Mr A’s identity confidential. The respondents must know who Mr A is. Although they cannot use that information in these proceedings it cannot be expected that they can put that knowledge out of their corporate minds. But more importantly the ACCC must know that Prysmian and Nexans are likely to know who Mr A is. It is difficult to see why it would continue to seek to keep his identity confidential. Lastly, if the release of Mr A’s identity might put him at risk in relation to civil and criminal proceedings in other jurisdictions, that has already occurred. Those other jurisdictions would probably know or be able to know his identity.

The Application for an Order under s 50

227    I turn now to consider the ACCC’s application for an order under s 50 of the Federal Court Act.

228    An order under s 50 forbidding or restricting the publication of particular evidence, or the name of a party or a witness, can be made if the Court is satisfied that the order is necessary to prevent prejudice to the administration of justice or the security of the Commonwealth. In this case, the application only relies upon the administration of justice.

229    The power to make an order under s 50 exists. The question here is whether or not the ACCC has, in the circumstances of this case, satisfied the Court that the order would be necessary in order to prevent prejudice to the administration of justice.

230    There is an air of artificiality about considering an application for an order under s 50 absent a successful claim for public interest immunity. Section 50 is an empowering provision that allows an order to be made of the kind sought by the ACCC in circumstances where the ACCC has established a public interest immunity in relation to the documents, and has satisfied the Court that Mr A’s identity should not be disclosed at this stage of the proceedings for the same reason.

231    Therefore, it is difficult to see how an application could be made under s 50 where the Court has determined that public interest immunity does not apply either to protect the documents or Mr A’s identity.

232    However, it was put by the ACCC that s 50 stood on its own terms, and I will try to address that argument, although, as I say, I am not at all confident that the argument is available to the ACCC in the absence of a successful finding of public interest immunity.

233    The power given to the Court in s 50 has to be considered in light of the fact that ordinarily proceedings take place in open Court: s 17(1) of the Federal Court Act. Section 17(4) recognises that the Court may exclude the public and persons specified by the Court from a sitting of the Court where the Court is satisfied that the presence of the public or those specified persons would be contrary to the interests of justice. Section 17 may do no more than state the common law position that ordinarily the administration of justice should take place in open Court: see Scott v Scott [1913] AC 417.

234    However, as s 17 recognises, there may be circumstances where it is necessary to ensure that justice is attained that the public or persons be ordered to be excluded. Simply put, there are cases where justice cannot be done if it were to be done in public. For example, if the proceeding is about some secret process of manufacture, as Earl Loreburn mentioned in Scott v Scott, then the subject matter of the action would be destroyed by a hearing in open court (see also Australian Broadcasting Commission v Parish at 233 per Bowen CJ).

235    Neither the common law nor s 50 allows for the Court to make orders either excluding persons from the Court or forbidding the publication of the Court’s proceeding, or of the witnesses or parties before the Court, for some idiosyncratic notion of fairness. An order can only be made if it is necessary to prevent prejudice to the administration of justice.

236    In Hogan v Australian Crime Commission, the High Court said at [30]-[31]:

[30]    As it appears in s 50, “necessary” is a strong word.  Hence the point made by Bowen CJ in Australian Broadcasting Commission v Parish, that the collocation of necessity to prevent prejudice to the administration of justice and necessity to prevent prejudice to the security of the Commonwealth “suggests Parliament was not dealing with trivialities”.  Further, as indicated earlier in these reasons:  (a) s 50 is an example of a provision authorising the Federal Court to make orders for the exercise of its jurisdiction other than in open court as mandated by s 17(1); and (b) “the administration of justice” spoken of in s 50 is that involved in the exercise by the Federal Court of the judicial power of the Commonwealth; this is a more specific discipline than broader notions of the public interest.

[31]    It is insufficient that the making or continuation of an order under s 50 appears to the Federal Court to be convenient, reasonable or sensible, or to serve some notion of the public interest, still less that, as the result of some “balancing exercise”, the order appears to have one or more of those characteristics.

    (Footnotes omitted)

237    The “administration of justice” that is referred to in s 50 is the exercise of the judicial power of the Commonwealth by the Federal Court itself. It has nothing to do with the ACCC’s responsibilities in detecting or preventing cartel conduct, or prosecuting a party who is engaged in such conduct.

238    Accordingly, a party who applies for an order under s 50 must satisfy the Court that the order is necessary, in the sense described in Hogan v Australian Crime Commission, for the administration of justice by the Federal Court itself. If the Court is satisfied that such an order is necessary, it implements its conclusion by making the order.

239    It is misleading to speak of the Court having a discretion to make an order under s 50. Rather, if the Court “has reached the requisite stage of satisfaction, it would be a misreading of s 50 to treat it as empowering the Court nevertheless to refuse to make the order”: Hogan v Australian Crime Commission at [33].

240    In any event, I am not satisfied that such an order as that sought by the ACCC is necessary in this case. Such an order may, at some level, serve the public interest. It may be that because such an order is not made Mr A refuses to give evidence, which may undermine the ACCC’s case. But such an order is in no way necessary, in my view, in this case, to prevent prejudice to the administration of justice by this Court.

241    I reiterate that it is difficult to think, where the Court has reached a conclusion that the weighing of the competing public interests in relation to public interest immunity and the public interest in ensuring that a respondent has a fair trial falls in favour of the party against whom the proceedings have been brought, that there is some residual power left in the Court to make an order under s 50 because it is necessary for the purpose of preventing prejudice to the administration of justice.

242    The ACCC has not advanced any evidence or put any argument that would, in my opinion, justify the making of an order under s 50 in circumstances where I am not satisfied that an order should be made for the protection of documents in respect of which public interest immunity is claimed.

243    That leaves for consideration the Notices to Produce.

Notices to Produce

244    The ACCC has sought an order setting aside the Amended Notice to Produce and the Further Notice to Produce. This application needs to be considered in light of my reasons relating to paragraph 1 of the ACCC’s Amended Notice of Motion.

245    If I had been of the opinion that Mr A’s identity should not be revealed and the contents of and annexures to the Fourth Jacquier Affidavit not be disclosed other than in accordance with paragraph 1 of the Amended Notice of Motion, the Notices to Produce could not be used to frustrate that order. To do so would be an abuse of process. However, as it is, I have concluded that paragraph 1 of the ACCC’s Amended Notice of Motion should be dismissed.

246    Nexans is able to file and serve a Notice of Motion that seeks to set aside the service of the originating process, and have that motion heard and determined, without first filing an appearance: Trade Practices Commission v The Gillette Company (No 1) at 368-370 per Burchett J. The Notices to Produce seek documents that are relevant to the application to have service of the proceeding set aside.

247    Accordingly, I can see no reason why Nexans should not be entitled, as a matter of principle, to issue Notices to Produce in support of that application. It would be strange if Nexans was able to file a motion to have service set aside, and have that motion heard, but could not seek to make use of certain court processes in order to assist it in preparing for such an application.

248    To put the point slightly differently, it would frustrate the purpose of O 9 r 7(2) if the respondents could file a Notice of Motion without first filing an appearance, but could not engage court procedures which would assist them to prosecute that Notice of Motion.

249    However, it is important that the Court’s processes are not abused by a person or entity that has not filed an appearance, and that the significance of filing an appearance is not circumvented. I have formed the view that in this case Nexans is entitled to issue the Notices to Produce because Mr A’s identity will be important to its O 9 r 7 application.

250    The question then is whether the Notices should be set aside. There are two issues here. The first issue is whether the Notices to Produce constitute an abuse of the Court’s process because they have “no legitimate forensic purpose” at this stage in the proceeding. The ACCC submitted that the Notices constitute “fishing” by Nexans. The second issue is whether the Notices are oppressive.

251    I have found that the identity of Mr A and the contents of exhibits to the Fourth Jacquier Affidavit should not be treated as confidential because this information will substantially assist the respondents prepare for the application to set aside service, and the public interest in allowing the respondents to prepare for that application outweighs the public interest in keeping the information confidential. It follows then that Nexans should be able to seek from the ACCC documents that Ms Jacquier relied on for the purpose of swearing the First Jacquier Affidavit.

252    Paragraph 1 of the Amended Notice to Produce seeks the documents to which Ms Jacquier had regard at the time she affirmed paragraphs 24 to 32 of her affidavit. In my view, those documents would be relevant for the purpose of testing the assertions made in those paragraphs of that affidavit. Accordingly, the Amended Notice, to the extent that it seeks those documents, exhibits a legitimate purpose.

253    The ACCC submits that Nexans can make its submissions as to the weight to be afforded to the hearsay evidence obtained from Mr A without going behind the affidavit. That might be so, but Nexans should not be confined to presenting its case in that way. It should be entitled to see the actual evidence relied upon for the hearsay statements made in the First Jacquier Affidavit.

254    It is also not right, as the ACCC has contended, that because the ACCC only has to establish a prima facie case, issuing the Amended Notice to Produce is somehow not a legitimate exercise. Although, as I have said, the test for a prima facie case on an application for leave to serve an originating process is not high, and does not require a substantial inquiry, Nexans, in seeking to set aside service, is entitled to access the material that was relied upon to support the application in order to argue that the order should not have been made.

255    It was also put by the ACCC that because paragraph 1 of the Amended Notice to Produce seeks all documents to which Mr Jacquier had regard for the purpose of affirming paragraphs 24 to 32 of that affidavit in circumstances where she annexed 21 separate documents to that affidavit, and referred to those documents in those paragraphs, the Amended Notice is, accordingly, not seeking documents relevant to those paragraphs. Alternatively, the ACCC submitted that it had already complied with the Amended Notice because the documents referred to in those paragraphs were annexed to the affidavit.

256    I do not accept this submission. It is clear from the Amended Notice that Nexans is seeking all documents to which Ms Jacquier had regard when affirming those paragraphs. The documents sought in the Amended Notice will include the documents that are annexed to the First Jacquier Affidavit. But that does not necessarily mean that they are all of the documents to which she had regard. Nexans is entitled to know whether or not these are the only documents she relied on, and, if there are other documents, it is entitled to see those documents.

257    Paragraph 2 of the Amended Notice seeks all documents referred to in paragraph 45 of Mr Gregson’s affidavit. In paragraph 45 Mr Gregson sets out a number of documents that he says answer the description “All documents provided to the ACCC by JPS pursuant to its immunity application in relation to the subject matter of this proceeding.”

258    To the extent that paragraph 2 of the Amended Notice seeks documents that would not be caught by paragraph 2 of the Further Notice, and for the reason I express below at [264] in relation to paragraph 2 of the Further Notice, Nexans is entitled to these documents.

259    In light of these reasons Nexans must also be entitled to seek, as it has in the Amended Notice, the unredacted versions of Exhibits SJ-14, SJ-15, and SJ-16 to the First Jacquier Affidavit.

260    Turning to the Further Notice to Produce, I am of the view that Nexans is entitled to seek documents that record communications between the ACCC and Mr A relating to the terms or conditions upon which Mr A has provided or will provide information to the ACCC about the alleged cartel arrangements. This is because, as I have already said, the ACCC relies on information provided by Mr A to support its case. Mr A has been granted derivative conditional immunity for providing this information, and accordingly Nexans is entitled to test the strength of these allegations on its application to set aside service.

261    It may be that the documents raise a serious question about Mr A’s credibility or the reliability of Mr A’s evidence and the information he has provided, which would affect the ACCC’s prospects of success. Without looking at these documents, to the extent they exist, Nexans simply is not in a position to know.

262    For the reasons already given, an application to set aside service is not the occasion to conduct a detailed inquiry into the strength of the allegations made and the evidence relied on to support those allegations. After all, an applicant on an application for leave to serve an originating process in another jurisdiction does not have to prove its case. On the other hand, it does have to demonstrate that it has a prima facie case, and if there are serious questions surrounding the information or evidence that will be used to support an applicant’s case, that may affect the applicant’s prospects of success.

263    In this case, given the apparent importance of Mr A to the ACCC’s case, Nexans should be able to explore his credibility and the reliability of his evidence, at least to the extent permitted on an O 9 r 7 application. It is neither improper nor illegitimate for Nexans to seek documents that might be relevant to this issue.

264    Nexans is also entitled to seek documents that relate to the application for immunity by JPS and, to the extent that such documents would not be caught by paragraph 1 of the Further Notice, documents relating to Mr A’s application for immunity or derivative immunity. The paragraphs in Mr Gregson’s affidavit referred to in paragraph 3 of the Further Notice set out the circumstances surrounding the provision of information by Mr A to the ACCC, while paragraph 4 of the Further Notice refers to all documents provided by Mr A to the ACCC relating to his application for immunity. Given that both JPS and Mr A have given information and assistance to the ACCC in relation to these proceedings, Nexans should be entitled to explore the circumstances in which this information and assistance was provided in order to determine whether there are any significant issues that would affect the ACCC’s prospects of success.

265    However, in relation to paragraphs 6 and 7 of the Further Notice, the position is different. Paragraphs 6 and 7 of the Further Notice seek documents relating to an application for immunity or leniency by Exsym in relation to “the subject matter of this proceeding.” It is not apparent why those documents would be relevant to Nexans’ application to have service set aside. The ACCC has alleged that Exsym was a cartel member, but it has not made Exsym a party to this proceeding. That might suggest that Exsym is also an informer, but usually the ACCC would only grant immunity to the first applicant for immunity. Moreover, there is nothing in the evidence which would suggest that Exsym has given the ACCC any information upon which the ACCC has relied for the bringing of these proceedings. It may be that Exsym has provided some information to the ACCC, and it might be that directors or officers of Exsym may ultimately give evidence at trial that supports some of the allegations made by the ACCC, but it does not appear at this stage that, if information has been provided by Exsym, that information has been relied upon to establish that the ACCC has a prima facie case.

266    Therefore, I do not think Nexans should be entitled at this stage in the proceedings to have access to documents relating to any application for immunity or leniency by Exsym, if such documents exist. I am conscious of not denying Nexans the opportunity to explore the strength of the allegations that have been made. However, I do not see how the credibility or reliability of any information provided by Exsym could affect the ACCC’s prospects at this stage of the proceeding, given that the ACCC only needs to establish a prima facie case.

267    Accordingly, I will order that paragraphs 6 and 7 of the Further Notice be struck out.

268    I turn now to consider the remaining submissions made by the ACCC in relation to the Notices. First, I reject the submission that the Notices are oppressive because they are not confined to material relevant to the question of whether service should be set aside, except to the extent that the Notices seek documents in relation to Exsym. As my reasons demonstrate, I think the material sought in the Notices, including the identity of Mr A, is relevant to Nexans’ application. Nexans is entitled to see the material in order to explore the possibility and put the argument that the material presented by the ACCC does not establish that a controversy exists between the parties.

269    I also do not accept the ACCC’s submission, which was limited to the submission that the Notices are too broad, that compliance with the Notices would be unduly burdensome. While Ms Close has deposed to the time and expense that would be involved reviewing the relevant material in order to comply with the Notices, I am of the view that this inconvenience is insufficient to warrant the Notices being set aside, particularly considering the relevance of the documents to Nexans’ application.

270    Lastly, the ACCC argued that it should be excused from complying with the Notices. Many of the arguments put in support of the application to have the Notices set aside were also put in relation to this part of the application. Given that I have rejected the arguments to set aside the Notices, I do not see how those same arguments could succeed in relation to the ACCC’s application to be excused from compliance.

271    The argument that the existence of s 157B of the TPA is somehow relevant is also in my view unsustainable. Section 157B was introduced after this proceeding was started and, as the ACCC conceded, does not apply to these proceedings. The fact that s 157B now means that the ACCC does not need to produce “cartel information”, as that term is defined in s 157B(7), without the leave of the Court is not a relevant consideration in these proceedings. To suggest that the Court should consider s 157B in determining whether the ACCC should comply with the Notices would be to read, in effect, a retrospective operation into s 157B, which in my view is neither warranted nor appropriate. The ACCC cannot say on the one hand that the section does not apply to the proceeding, but then argue that it is a relevant factor that the Court should consider. Either the section applies or it does not. In this case, it does not.

272    Finally, the fact that the ACCC may make a claim for public interest immunity or legal professional privilege over every document it would be required to produce under the Notices is not a reason for excusing the ACCC from complying with the Notices. In my view the Notices, except to the extent the Further Notice seeks documents in relation to Exsym, exhibit a “legitimate purpose”, and accordingly the ACCC should respond. If the ACCC intends to produce the documents to the Court and then make individual claims of privilege in relation to the documents, then that is a matter for the ACCC. But it is not a reason for excusing the ACCC from complying with the Notices.

273    There will be an order that the time for filing the fourth affidavit of Susan Jacquier affirmed on 15 June 2010 be extended to 5 September 2011; that paragraphs 6 and 7 of the Further Notice to Produce served by Nexans and dated 3 August 2010 be set aside; and that the ACCC’s Amended Notice of Motion filed on 11 August 2010 otherwise be dismissed. I will hear the parties as to costs.

Associate:

Dated:    22 August 2011