FEDERAL COURT OF AUSTRALIA

Nexans SA RCS Paris 393 525 852 v Australian Competition and Consumer Commission [2014] FCA 255

THE COURT ORDERS THAT:

1.    The application for leave to appeal is refused.

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

REASONS FOR JUDGMENT

1    On 5 April 2013, Lander J made an order by consent that each of the first respondent (Prysmian) and the second respondent (Nexans) in the underlying proceedings give standard discovery by 31 May 2013. Rule 20.14 of the Federal Court Rules 2011 (FCR) stipulates the obligations of a party ordered to give standard discovery.

2    Nexans was incorporated in France and is domiciled there, as are its officers who will act as its human agents in making discovery.

3    By application filed on 31 May 2013, Nexans sought the discharge of the order directed to it and, instead, an order that it give standard discovery and produce documents in accordance with the Hague Convention on the Taking of Evidence Abroad in Civil or Commercial Matters of 18 March 1970 (the Hague Convention) or, in the alternative, in accordance with the Convention between the United Kingdom and France respecting Legal Proceedings in Civil and Commercial Matters signed on 2 February 1922 (as extended to Australia in 1928) (the UK-France Convention).

4    At the hearing of the application, Nexans presented a revised position. It submitted that the order of 5 April 2013 directed to it should be varied so as to require it to give, by 19 December 2013, standard discovery under Chapter 1 of the Hague Convention. This would have involved the Court issuing a Letter of Request under the Hague Convention to the Ministry of Justice in France. As part of its application, Nexans relied on a draft of the Letter of Request which it proposed this Court should issue. The draft letter contained 31 separate categories of documents as being “the evidence to be obtained from [Nexans]”. The hearing proceeded on the basis of Nexans’ revised position.

5    Nexans sought the variation because it contended that compliance with the order of 5 April 2013 would require it to contravene a French law, namely, Law No 68-678 of 26 July 1968 relating to the Communication of Economic, Commercial, Industrial, Financial or Technical Documents to Foreign Individuals or Legal Entities as added to by Law No 80-538 dated 16 July 1980. The parties referred to this law as the “French Blocking Statute”.

6    A Judge of this Court dismissed Nexans’ application: Australian Competition and Consumer Commission v Prysmian Cavi E Sistemi Energia SRL (No 7) [2014] FCA 5. Nexans wishes to appeal against that interlocutory judgment. Section 24(1A) of the Federal Court of Australia Act 1976 (Cth) (FCA Act) provides that an appeal cannot be brought from an interlocutory judgment without leave. This decision concerns the application of Nexans for the grant of such leave.

7    In the underlying proceedings, the Australian Competition and Consumer Commission (ACCC) alleges contraventions of various of the sub-sections in s 45 of the Trade Practices Act 1974 (Cth) and of the Competition Codes of the States and of the Australian Capital Territory. The ACCC seeks declarations, injunctions, pecuniary penalties and other orders against the respondents. As the Judge recorded, the ACCC’s claim against the third respondent has been resolved, and its action now continues against Prysmian and Nexans only.

The French Blocking Statute

8    The English translation of the French Blocking Statute accepted by the Judge is as follows:

Article 1

Without prejudice to international treaties or agreements, it is forbidden to any French natural person or any natural person with habitual residence on the French territory, and to any representative, officer, agent or employee of a legal entity having its seat or any business tenancy in France, to communicate in writing, orally or in any other form, in any place whatsoever, to foreign public authorities, documents or information of an economic, commercial, industrial, financial or technical nature, the disclosure of which is likely to prejudice the sovereignty, security, essential economic interests of France or public order, eventually specified, whenever necessary, by the administrative authorities.

Article 1bis

Without prejudice to international treaties or agreements and laws and regulations in force, it is prohibited for any person to request, search for or communicate, in writing, orally or in any other form, documents or information of an economic, commercial, industrial, financial or technical nature for the purposes of establishing evidence in view of foreign judicial or administrative proceedings or in relation thereto.

Article 2

The persons referred to in Articles 1 and 1bis shall inform the competent Minister without delay, upon the receipt of any request concerning such communications.

Article 3

Without prejudice to harsher penalties provided for by law, any breach of the provisions of Articles 1 and 1bis of the present law shall be punished by a six month imprisonment and a fine of 18,000 Euros or either one of these penalties only.

9    The applicable maximum penalty for a company contravening Article 1bis is a fine of five times the amount mentioned in Article 3.

10    Nexans relied, in particular, on Article 1bis, contending that compliance with the 5 April 2013 order would involve it breaching the prohibition in that Article, thereby exposing it to the penalties referred to in Article 3.

The Hague Convention

11    The Articles of the Hague Convention which are relevant for present purposes are Articles 1, 3 and 23. They provide as follows:

Article 1

In civil or commercial matters a judicial authority of a Contracting State may, in accordance with the provisions of the law of that State, request the competent authority of another Contracting State, by means of a Letter of Request, to obtain evidence, or to perform some other judicial act.

A Letter shall not be used to obtain evidence which is not intended for use in judicial proceedings, commenced or contemplated.

The expression “other judicial act” does not cover the service of judicial documents or the issuance of any process by which judgments or orders are executed or enforced, or orders for provisional or protective measures.

Article 3

A Letter of Request shall specify –

a)    the authority requesting its execution and the authority requested to execute it, if known to the requesting authority;

b)    the names and addresses of the parties to the proceedings and their representatives, if any;

c)    the nature of the proceedings for which the evidence is required, giving all necessary information in regard thereto;

d)    the evidence to be obtained or other judicial act to be performed.

Where appropriate, the Letter shall specify, inter alia –

e)    the names and addresses of the persons to be examined;

f)    the questions to be put to the persons to be examined or a statement of the subject-matter about which they are to be examined;

g)    the documents or other property, real or personal, to be inspected;

h)    any requirement that the evidence is to be given on oath or affirmation, and any special form to be used;

i)    any special method or procedure to be followed under Article 9.

A letter may also mention any information necessary for the application of Article 11.

No legislation or other like formality may be required.

Article 23

A Contracting State may at the time of signature, ratification or accession, declare that it will not execute Letters of Request issued for the purpose of obtaining pre-trial discovery of documents as known in Common Law countries.

12    As can be seen, Article 23 permits a Contracting State to declare that it will not execute Letters of Request issued for the purposes of obtaining “pre-trial discovery of documents as known in Common Law countries”. France did make a declaration to that effect in 1974 when it ratified the Hague Convention. However, in 1986, France limited that reservation so that pre-trial discovery of documents could be obtained by execution of a Letter of Request “when the requested documents are limitatively listed in the letter of request and are directly and specifically connected with the subject matter of the dispute”. The requirement that documents be “limitatively listed” was a focus of the submissions at first instance and on the hearing of the present application.

Leave to appeal principles

13    The decision of the Judge refusing Nexans’ application to vary the previous discovery order made by consent was a discretionary judgment concerning a matter of procedure.

14    Appellate review of discretionary judgments is limited. The principles stated in House v The King (1936) 55 CLR 499 at 505 apply:

It must appear that some error has been made in exercising the discretion. If the judge acts upon a wrong principle, if he allows extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration, then his determination should be reviewed and the appellate court may exercise its own discretion in substitution for his if it has the materials for doing so.

15    In addition, appellate courts exercise restraint before interfering with judgments concerning matters of practice and procedure. The High Court articulated this restraint in Adam P Brown Male Fashions Pty Ltd v Philip Morris Inc (1981) 148 CLR 170 at 177:

Nor is there any serious dispute between the parties that appellate courts exercise particular caution in reviewing decisions pertaining to practice and procedure. Counsel for Brown urged that specific cumulative bars operate to guide appellate courts in the discharge of that task. Not only must there be error of principle, but the decision appealed from must work a substantial injustice to one of the parties. The opposing view is that such criteria are to be expressed disjunctively. … For ourselves, we believe it to be unnecessary and indeed unwise to lay down rigid and exhaustive criteria. The circumstances of different cases are infinitely various. We would merely repeat, with approval, the oft-cited statement of Sir Frederick Jordan in In re the Will of F. B. Gilbert (dec) (1946) 46 SR(NSW) 318 at 323:

… I am of opinion that, … there is a material difference between an exercise of discretion on a point of practice or procedure and an exercise of discretion which determines substantive rights. In the former class of case, if a tight rein were not kept upon interference with the orders of Judges of first instance, the result would be disastrous to the proper administration of justice. The disposal of cases could be delayed interminably, and costs heaped up indefinitely, if a litigant with a long purse or a litigious disposition could, at will, in effect transfer all exercises of discretion in interlocutory applications from a Judge in Chambers to a Court of Appeal.

Section 24(1A) of the FCA Act is a legislative endorsement of the restraint to which the High Court referred in Adam P Brown.

16    Although the discretion to grant leave to appeal conferred by s 24(1A) is unfettered, the approach to its exercise taken by the Full Court in Decor Corporation Pty Ltd v Dart Industries Inc (1991) 33 FCR 397 has been influential. The tests applied by the Full Court (Sheppard, Burchett and Heerey JJ) were to enquire, first, whether in all the circumstances, the judgment of the primary judge was attended by sufficient doubt to warrant it being reconsidered by the Full Court and, secondly, whether substantial injustice would result if leave were refused, supposing the decision to be wrong. Those tests are not to be applied in a rigid way, having regard to the variety of the forms of interlocutory decisions which may be made. The Full Court in Samsung Electronics Co Ltd v Apple Inc [2013] FCAFC 138 at [19] spoke of the need for flexibility as follows:

The very width of the discretion and the prudence in not seeking to confine the manner in which it is to be exercised is a necessary corollary of the myriad of interlocutory decisions which may be made – ranging from interlocutory decisions affecting the substantive rights of parties (and effectively being final orders) to matters of practice and procedure (including decisions to extend time, the granting or refusal of adjournments and the filing of evidence). The different character of interlocutory decisions which may be made and the different factual and forensic circumstances in play when such decisions are made nevertheless have occasioned a different emphasis from one judgment to another upon one particular factor or factors rather than others.

See also the judgment of Dodds-Streeton J in Alcock v Commonwealth of Australia [2012] FCA 870 at [37]-[48].

17    The submissions of both parties in the present case were directed to the tests articulated in Decor Corporation. Most of the respective submissions were directed to the first test.

The proposed grounds of appeal

18    Nexans’ solicitor annexed to his affidavit the draft notice of appeal in respect of which Nexans sought leave. The draft notice contains eight grounds, each of which alleges a separate error by the Judge. Ground 5 contains 10 subparagraphs, each of which alleges separately further errors by the Judge. It is not in the least bit likely that a considered decision by a Judge of this Court relating to the exercise of a discretion on a matter of procedure could be affected by so many errors. The fact that Nexans has thought it necessary to allege so many errors could support an inference that it does not have confidence in any of its complaints. See the observation of McHugh J in another context in Tame v New South Wales [2002] HCA 35 at [70]; (2002) 211 CLR 317 at 345.

19    However, it is not necessary in the context of the application for leave to consider each of the proposed grounds of appeal. On the hearing of the application, counsel for Nexans submitted that the reasons of the Judge indicated three broad errors:

(a)    the Judge had failed to approach Nexans’ application on the basis that the Court should strive, as far as is consistent with Australian legislation, to avoid a situation in which Nexans is caught between the conflicting requirements of Australian law and French law;

(b)    the Judge erred in finding that the Hague Convention did not provide a reasonable substitute for an Australian discovery order; and

(c)    the Judge erred in finding that it was most unlikely that Nexans would be prosecuted under the French Blocking Statute.

It is appropriate to determine the application by reference to these matters. I will address each in turn.

Avoidance of Nexans being subject to conflicting requirements of Australian and French law

20    The parties were in agreement as to the underlying principles which are applicable in the present context. It is not an absolute bar to the making of an order for discovery that compliance with the order will involve a litigant contravening a foreign law: Michael Wilson and Partners Ltd v Nicholls [2008] NSWSC 1230 at [11]; (2008) 74 NSWLR 218 at 221-2. However, courts strive, so far as is consistent with Australian legislation, to avoid circumstances in which persons will be subject to the conflicting requirements of Australian law and foreign law: Australian Securities Commission v Bank Leumi Le-Israel (1995) 134 ALR 101 at 148 (affirmed on appeal in Australian Securities Commission v Bank Leumi Le-Israel (Switzerland) (1996) 69 FCR 531); Bank of Valletta PLC v National Crime Authority [1999] FCA 791; (1999) 164 ALR 45 (affirmed on appeal in Bank of Valletta PLC v National Crime Authority [1999] FCA 1099; (1999) 90 FCR 565). Accordingly, the availability of alternative means by which a party may secure the information or documents in question, not involving any risk of penalty under foreign law, is relevant to the exercise by the Court of its powers: Bank of Valletta [1999] FCA 791 at [63]-[64]; (1999) 164 ALR 45 at 60-61. This reflects a principle of international law, described by counsel for Nexans as the principle of comity, that caution and self-restraint are appropriate in relation to the exercise of powers impacting upon the exercise of sovereign powers of a foreign country: Hua Wang Bank Berhad v Commissioner of Taxation [2013] FCAFC 28 at [28]-[30]; (2013) 296 ALR 479 at 487; Suzlon Energy Ltd v Bangad [2011] FCA 1152 at [42]; (2011) 198 FCR 1 at 13.

21    Nexans’ submissions particularised in a number of ways the complaint that the Judge had not sought, so far as consistent with Australian legislation, to avoid Nexans being subject to conflicting duties. It was said that the Judge had not had regard to the principle of comity at all; that although the Judge had referred in his summary of relevant legal principles to several of the principles quoted above, he had not referred to them again in that part of his reasons setting out his conclusions on the issues; that the Judge had not in fact given effect to these principles, sufficiently or at all; and that the Judge had not referred to the consequences for Nexans and its employees of acting in conflict with French law.

22    In relation to the principle of comity, Nexans referred to Hua Wang Bank Berhad v Commissioner of Taxation [2013] FCAFC 28; (2013) 296 ALR 479. In that case, the question was whether the Hua Wang Bank Berhad should be relieved from an obligation to comply with a notice to produce in circumstances in which compliance with the notice could result in a contravention of Samoan law. At [28], 487, the Full Court described the principle which was engaged as “the need for caution where there is an intrusion upon the sovereignty of a foreign state, it being no light matter to enforce Australian laws in circumstances which infringe the legislative policies of other countries”. Elsewhere in the judgment, the Full Court referred to this as the principle of comity: see [15], 484 and the quotation at [30], 487.

23    It is true that the primary Judge was referred to paragraphs [28] and [30] in Hua Wang and that he does not refer to them in his reasons. It is also true that the Judge did not refer to the principle of comity in express terms.

24    However, in my opinion, these matters are of no moment as it is evident that the Judge had regard to the relevant matters to which the principle of comity gives rise: see the reasons at [13]-[14]. The Judge referred to the decision of Brereton J in Michael Wilson and Partners Ltd v Nicholls [2008] NSWSC 1230; (2008) 74 NSWLR 218; to the judgment of Sackville J in Australian Securities Commission v Bank Leumi Le-Israel (1995) 134 ALR 101 at 148; and to the judgment of Hely J in Bank of Valletta PLC v National Crime Authority [1999] FCA 791; (1999) 164 ALR 45. In Bank of Valletta, Hely J commenced his discussion of the relevant principles at [48] with a quotation from Lehane J in Australian Securities Commission v Bank Leumi Le-Israel (Switzerland) (1996) 69 FCR 531 at 552:

[I]t is no light matter to enforce Australian laws in circumstances which infringe the legislative policies of other countries.

This is another way of expressing the principle of comity, as the reference to the principle at [30] in Hua Wang recognises. So much was accepted by counsel for Nexans at first instance when he conceded that the caution about which the Full Court in Hua Wang had spoken at [28] was consistent with the approach of Hely J in Bank of Valletta. Accordingly, the submission that the Judge overlooked, or failed to have proper regard to, the principle of comity does not seem to have a promising basis.

25    Further still, the principle that Australian courts should, so far as practicable, strive to avoid creating circumstances in which persons will be subject to conflicting obligations under Australian and foreign law to which the Judge adverted expressly would seem to reflect, in a practical way, the overarching principle of comity. Counsel’s submissions did not indicate that the principle could have some different practical content in the present case. The Judge’s reasons evince an awareness of the restraint which should be exercised in cases such as the present. It is also pertinent that, in addition to his reference to Australian authority, the Judge also referred in some detail to English authorities addressing the same issues.

26    In these circumstances, I do not consider it reasonably arguable that the Judge failed to have regard to the principle of comity.

27    The circumstance that the Judge did not refer again to the underlying principles when reaching his conclusion cannot, in my opinion, be regarded as indicative of error. Such a repetition would have been unnecessary. It is also apparent that the Judge was engaged in a practical way in the application of the principles which he had identified earlier.

28    As to the possible consequences of a contravention of the French Blocking Statute, the Judge did refer to the maximum fines to which individuals and companies may be subject in the event of a prohibition of Article 1bis: at [6], [8]. These are undoubtedly criminal sanctions and their status as such did not have to be belaboured. The underlying theme in Nexans’ application was its desire to avoid a risk of exposure to such sanctions.

29    Counsel referred to the Judge’s omission to refer to other adverse consequences, namely, possible consequences in relation to the reputation and general standing of Nexans in the market and the consequences for the individual employees of Nexans giving discovery in their relationships with their employer. It is unsurprising that the Judge did not refer to these matters because Nexans had not raised them in the hearing at first instance. Counsel for the ACCC contended that, had these issues been raised at first instance, they would have been answered by evidence. In these circumstances, the fact that the Judge did not refer to these additional consequences does not provide a sound basis for concluding that his decision is attended by sufficient doubt to warrant reconsideration by the Full Court.

The Hague Convention not a reasonable substitute for a discovery order

30    The Judge made some assumptions about the availability of the Hague Convention in the present circumstances which were favourable to Nexans. He assumed that the underlying proceedings were a “civil or commercial matter” for the purposes of the Hague Convention, and that an order for disclosure of the documents would amount to an order to obtain evidence or to perform some other “judicial act” as contemplated by the Convention: at [40].

31    Having made those assumptions, the Judge concluded that the Hague Convention was not a reasonable substitute for the discovery order made on 5 April 2013 (at [40]) and that were the Hague Convention used, it would probably be less effective and involve further delay than the 5 April order (at [42]). The Judge gave two reasons for his conclusion that the Hague Convention was not a reasonable substitute: first, it seems to require an applicant to list “limitatively” the requested documents in the Letter of Request and, secondly, it placed the onus on the ACCC to identify in some way the documents which it seeks: at [40].

32    Some of the submissions made on Nexans’ behalf were to the effect that all reasonable alternatives to the making of an order for discovery should be exhausted before such an order is made. However, none of the authorities express the principles so stringently and, on my reading, such a formulation is inconsistent with established authority and principle.

33    As noted earlier, the concept of listing documents “limitatively” arises from the terms of the limitation by France in 1986 to its declaration that it would not execute Letters of Request under the Hague Convention issued for the purposes of obtaining pre-trial discovery of documents.

34    Monsieur Lalance, an expert in French law called by Nexans, referred to a decision of the Paris Court of Appeal on 18 September 2003 in connection with a case known as the “Executive Life” case. The Paris Court held, on M Lalance’s translation, that documents are “limitatively listed” when they are “identified with a reasonable degree of specificity such as their date, nature or author”. Monsieur Lalance said that, in giving that elaboration, the Paris Court had taken into account the fact that the party requesting the documents did not have possession of them and could not be asked to provide an accurate description of them. Monsieur Lalance went on to give the following opinion:

I am of the opinion that Nexans SA may comply with the standard discovery order through the letter of request route provided by the Hague Convention, subject to a sufficiently detailed indication of the requested documents in the Letter of Request that would be issued by the Australian court.

(Emphasis added)

35    Nexans also led evidence from a retired judge, Judge BÉraudo. Judge BÉraudo quoted the relevant passage in the reasons of the Paris Court of Appeal in the Executive Life case:

As the Commissioner does not have the documents in his possession, a precise description of the document being sought may not be required from him. In the French sense of reservation, a list of documents is only restrictive when these documents are identified with a reasonable degree of specificity on the basis of a certain number of criteria such as their dates, their natures or their authors.

36    The Judge in this Court compared a “limitative listing” of the kind contemplated by French law with the content of “standard discovery” of this Court, as contained in FCR 20.14. It is not necessary to quote r 20.14 presently. It is sufficient to note that it contemplates the discovery of classes or categories of documents which are directly relevant, in a defined way, to the issues raised by the pleadings and imposes an obligation on the party making discovery to conduct a “reasonable search” for such documents. In contrast, French law requires the documents sought to be identified “with a reasonable degree of specificity such as their date, nature or author”. Although it is the Court which issues the Letter of Request, it is reasonable to suppose that the Court would rely upon the party seeking the documents to provide it with a description of the required specificity. In this way, it would be incumbent upon the ACCC to identify in some way the documents which it seeks, rather than relying upon the more general obligation imposed on Nexans by r 20.14 to undertake a reasonable search for documents of the contemplated classes or categories.

37    The Judge concluded at [40]:

Even if there is a degree of flexibility in that requirement such that the degree of specificity involved relates to the date, nature or author of the document as Mtre Lalance said, that is a significant limitation when compared with the Australian discovery order. It places the onus on the ACCC to identify in some way the documents it seeks.

38    In my opinion, having regard to the differences between the two procedures referred to above, it is not reasonably arguable that this characterisation of the Judge was inappropriate.

39    The difficulty in regarding a “limitative listing” of documents for the purposes of French law as equivalent to an order for standard discovery seems to be revealed by Nexans’ own draft of a Letter of Request. It seems that the categories of documents in that draft were framed in an endeavour to meet the requirements for standard discovery. However, their very width would seem to make it improbable that they could be regarded by a French court as a “limitative listing” of the documents in the sense discussed in the Executive Life case. It is sufficient to give two illustrations only, namely, Categories 4 and 10:

(4)    Documents in the possession, custody or power of Nexans recording or evidencing the carrying on of business in Australia by Nexans, in the period from at least October 2001 to October 2003.

(10)    Documents in the possession, custody or power of Nexans recording or evidencing the manufacture and supply of land cables for use in Australia from 2001.

40    On their face, these do not seem to be descriptions with a reasonable degree of specificity such as date, nature or author.

41    Nexans submitted that there had been no contention before the primary Judge that the description of the documents in its proposed Letter of Request did not constitute a “limitative listing” of those documents. However, Nexans later withdrew that submission when attention was drawn to an express submission which had been made by ACCC’s counsel to that effect.

42    In my opinion, this second category of error upon which Nexans relied does not warrant a grant of leave to appeal.

The prospect of Nexans being prosecuted under the French Blocking Statute

43    The Judge considered it “most unlikely that [Nexans] would be prosecuted under the French blocking statute were it to comply with the Australian discovery order” (at [39]). After referring to the conflicting evidence of Judge BÉraudo and M FeugÈre (from whom the ACCC had led evidence), the Judge continued at [39]:

… Overall, I prefer the evidence of Mtre FeugÈre as to whether there is likely to be a prosecution. I accept his evidence about the evil Article 1bis was designed to combat and the absence of that evil were the second respondent to comply with the Australian discovery order. That makes a prosecution most unlikely. Furthermore, the most compelling matter as Henderson J said in Servier and Roth J noted in National Grid is the absence of successful prosecutions under the French blocking statute. In fact, I find that the first two matters identified by Roth J in National Grid apply with equal force in this case …

44    Nexans submitted that the Judge’s conclusion about the risk of prosecution was critical to his decision. I am content for present purposes to proceed on the basis that that characterisation is correct.

45    Nexans submitted that the Judge’s conclusion about the risk of prosecution was affected by a number of errors. It referred to an earlier finding of the Judge (at [26]) when discussing the evidence of the respective experts:

The experts in this case addressed a large number of issues, many of which I do not need resolve. I will not go into the detail of evidence relevant to issues which I do not need to resolve. On the issues which form the basis of my decision, I find no material difference in the qualifications of the expert witnesses.

Nexans submitted that the Judge had been wrong to find that there was no material difference in the qualifications of the expert witnesses and wrong to prefer the evidence of M FeugÈre to that of Judge BÉraudo.

46    As to the former, Nexans referred to the evidence that Judge BÉraudo had been a member of the Cour de Cassation Unit’s Criminal Division for three years (concluding in 2003); that he had served on the Cour d’Appel of Grenoble from 1991 to 2000, and that from 1974 to 1976 he had been an investigating Judge at the Civil Court (Tribunal de Grande Instance) of Compiegne. Earlier in his career Judge BÉraudo had been a delegate of the French Government in international negotiations including the Hague Conference on International Private Law, and had had practical experience dealing with the French Blocking Statute in a number of contexts while working with the French Ministry of Justice between 1976 and 1980. Nexans referred to other aspects of Judge BÉraudo’s experience which it is not necessary to mention presently.

47    Monsieur FeugÈre practises as a lawyer with the Paris bar, specialising in white collar crime. He has also worked as an academic at universities in Paris, is active in the activities of the Paris bar and, by reason of his professional activities, is in regular contact with the French Government and Parliament relating to reforms of business law, including business criminal law. Monsieur FeugÈre represented the French legal profession in a recent consultation with the French Government and Parliament concerning the French Blocking Statute. However, M FeugÈre acknowledged that primarily he worked as an academic, either as a lecturer, tutor, educator or publisher of articles and books.

48    In relation to Nexans’ first complaint, it is to be noted that the Judge did not conclude that there were no material differences between the qualifications of Judge BÉraudo and M FeugÈre in an absolute sense. The Judge’s comparison was qualified, holding only that there was no material difference in their respective qualifications “[o]n the issues which form the basis of my decision”.

49    That focuses attention on the particular topic on which M FeugÈre’s evidence was preferred, namely, the risk of prosecution.

50    The ACCC did not require an attendance by Judge BÉraudo for the purposes of cross-examination regarding his written reports. However, Nexans cross-examined M FeugÈre about his opinions. Accordingly, the Judge had the opportunity to see and hear M FeugÈre, as well as considering his written report.

51    Monsieur FeugÈre expressed the opinion in his cross-examination that the French Blocking Statute would be interpreted according to its purpose, namely, to prevent the disclosure by French companies of important and strategic information for personal use and, amongst other things, that it did not preclude a French company voluntarily communicating documents. The Judge summarised M FeugÈre’s views about a possible prosecution in the following passage (at [32]):

… Mtre FeugÈre also expresses the view that even if there was a possible breach of the French blocking statute involved in compliance with the Australian discovery order there would be no prosecution or conviction of the second respondent. He expresses the opinion that it is extremely unlikely that the public prosecutor would take any action to launch an investigation, refer the case to an investigating judge or refer it to a criminal court. He expresses the opinion that in the unlikely event that the case was transferred to an investigating judge it is unlikely he or she would take any action either. He expresses the opinion that a Court would not consider convicting the second respondent in such a case.

52    Nexans’ submissions were critical of M FeugÈre’s approach to statutory interpretation, but its criticisms were not such as to indicate error by the Judge in this Court, let alone error of the House v The King kind. Further, and in any event, the Judge did not rely only on M FeugÈre’s opinion. The Judge regarded the absence of successful prosecutions of French companies or individuals for breaches of the French Blocking Statute as “the most compelling matter” (at [39]). There has only been one such successful prosecution and it seemed to be common ground that the circumstances of that case were exceptional. In any event, they were quite distinct from the present case. The absence of prosecutions was evidence, which the Judge was entitled to accept, that, in practice, the French Blocking Statute is not invoked in circumstances like the present.

53    Judge BÉraudo made the point that it may be more accurate to say that there is only one known reported case of a successful prosecution because there may have been other prosecutions which, because they were dealt with at lower levels in the French judicial hierarchy, have not been reported. That may be so as a theoretic possibility, but it seems significant that neither Judge BÉraudo nor M FeugÈre, with all their experience, knew of any such instance.

54    It is not immaterial that English courts too have considered the operation of the French Blocking Statute and have reached conclusions similar to those of the primary judge: National Grid Electricity Transmission PLC v ABB Ltd [2013] EWHC 822 (Ch); Secretary of State for Health v Servier Laboratories Ltd [2012] EWHC 2761 (Ch); and, on appeal in both cases, Secretary of State for Health v Servier Laboratories Ltd [2013] EWCA Civ 1234. I note that on 20 December 2013 the Supreme Court of the United Kingdom refused a grant of permission to the unsuccessful parties (in the position of Nexans) to appeal against the Court of Appeal determination. Each of Judge BÉraudo and M FeugÈre gave evidence in the English proceedings. There was no identification of any successful prosecution (apart from the one exceptional case) in the English proceedings either.

55    The Judge was not bound to accept the opinions of Judge BÉraudo simply because he had not been required to attend for cross-examination. In the circumstance of conflicting opinions about the prospects of Nexans being prosecuted in France, it was open to the Judge to accept the opinion of M FeugÈre, for the reasons which he gave.

56    It is pertinent that the English courts reached the same conclusions as did the Judge. It is true, as counsel for Nexans pointed out, that the circumstance that the United Kingdom and France are both members of the European Union provides a context which is not applicable in the present case. Nevertheless, the English decisions indicate that the conclusion of the Judge, based on similar but not identical evidence, was not surprising.

57    I am not persuaded that the third error which Nexans sought to establish in the Judge’s reasons is reasonably arguable.

Conclusion

58    In these reasons, I have addressed the three broad categories of error identified by Nexans. It has not been necessary to address separately each of the proposed grounds of appeal.

59    For the reasons given above, I am not satisfied that the primary judgment is attended by sufficient doubt to warrant it being reconsidered by the Full Court. It is accordingly unnecessary to consider the second of the Decor Corporations tests. The application for leave to appeal is refused.

Associate:

Dated:    20 March 2014