FEDERAL COURT OF AUSTRALIA

Australian Competition and Consumer Commission v Reckitt Benckiser (Australia) Pty Ltd (No 3) [2015] FCA 1406

THE COURT ORDERS THAT:

1.    Pursuant to section 37AF of the Federal Court of Australia Act 1976 (Cth), the publication or other disclosure of RB Confidential Information (being the documents contained in the Schedule to Annexure A) by the Applicant and their external solicitors and/or counsel be restricted in accordance with the Confidentiality Regime in Annexure A on the ground that non-disclosure of the RB Confidential Information is necessary to prevent prejudice to the proper administration of justice.

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

Annexure A

Confidentiality Regime

Australian Competition and Consumer Commission v Reckitt Benckiser (Australia) Pty Limited (Federal Court of Australia proceedings NSD180/2015)

1.    The RB Confidential Information, being the information contained in the documents listed in the Schedule to this Confidentiality Regime and any extracts thereof:

(a)    must, unless the Court otherwise orders, be kept confidential by:

(i)    the Australian Competition and Consumer Commission (ACCC);

(ii)    the ACCC’s officers, directors, partners, members or employees instructing in or assisting with Federal Court of Australia proceedings NSD180/2015 (Proceedings); and

(iii)    the ACCC’s external solicitors and counsel participating in or assisting with the Proceedings, and their clerical and support staff,

in possession of the RB Confidential Information (Receiving Party) in accordance with this Confidentiality Regime;

(b)    may be accessed by any Receiving Party and:

(i)    the ACCC’s officers, directors, partners, members or employees instructing in or assisting with the Proceedings;

(ii)    the ACCC’s external solicitors and counsel participating in or assisting with the Proceedings, and their clerical and support staff or otherwise notified to Reckitt Benckiser (Australia) Pty Ltd (RB) in relation to the Proceedings; and

(iii)    such other persons otherwise notified to RB,

engaged, retained or briefed (as the case may be) in the Proceedings by a Receiving Party or instructing in the Proceedings on behalf of a Receiving Party and who are made aware of the confidential nature of the RB Confidential Information and the restricted terms on which it has been disclosed (collectively, Disclosure Persons); and

(c)    may be used only for the purpose of the Proceedings.

2.    The RB Confidential Information will be used, handled, kept and stored by the Disclosure Persons subject to the following directions:

(a)    subject to paragraph 2(b), the RB Confidential Information will be used, handled, kept and stored in such a manner as will at all times, including during the hearing of the Proceedings, preserve its confidentiality;

(b)    Disclosure Persons use their best endeavours to ensure that information or data contained in the RB Confidential Information is not disclosed in open Court and only used or reproduced in written submissions that are marked as confidential by the ACCC when filed with the Court and are not made available for public inspection in the Registry. Where written submissions are marked confidential, the ACCC is also to provide the Court with a version of the submissions in which the RB Confidential Information is redacted and so may be made available for public inspection in the Registry. For the avoidance of doubt the documents themselves which comprise the RB Confidential Information can be referred to in open Court and in publicly accessible written submissions (but not the information or data contained in those documents);

(c)    no copies of the RB Confidential Information will be made by any Disclosure Persons except for the purpose of the Proceedings;

(d)    no RB Confidential Information will, without the prior written consent of RB, be accessed by any persons other than the Disclosure Persons; and

(e)    within 60 days after receiving notice of an entry of an order or judgment finally disposing of the Proceedings including the exhaustion of all possible appeals and other review, the ACCC will either return to RB or destroy or delete (as appropriate) any and all copies of the RB Confidential Information which are held by Disclosure Persons.

3.    The terms of this Confidentiality Regime shall not apply, or shall cease to apply as the case may be, to RB Confidential Information (or any part thereof) that:

(a)    becomes publicly available or public knowledge otherwise than through the default of any person under an obligation of confidence; or

(b)    the Court determines:

(i)    it is public knowledge, or

(ii)    is no longer to be treated as confidential.

SCHEDULE

Documents behind the following tabs of the Court Book (“CB”):

REASONS FOR JUDGMENT

1    This application for confidentiality orders was scheduled for hearing yesterday, immediately before trial. Shortly before yesterday’s hearing the parties agreed to this matter being determined on the papers. These are my reasons for the confidentiality orders that will govern the trial that commences this morning.

2    The interlocutory orders are sought pursuant to s 37AF of the Federal Court of Australia Act 1976 (Cth) to give effect to a confidentiality regime. The orders are sought on the ground that orders to preserve the non-disclosure of certain information which may be tendered at the trial commencing today is necessary to prevent prejudice to the proper administration of justice (see s 37AG(1)(a)).

3    The proposed confidentiality regime has been carefully formulated to avoid concerns I raised in a separate third party application in these proceedings: Australian Competition and Consumer Commission v Reckitt Benckiser (Australia) Pty Ltd (No 2) [2015] FCA 1274. I am satisfied that the regime is an appropriate one if the jurisdictional condition in s 37AG(1)(a) is met.

4    The orders sought concern fourteen documents, or parts of documents. They can be divided into two groups. Group 1 is the documents at tabs 112, 116, 119, 121, 122, 123, 124, 126, 127 about which the orders were not opposed by the ACCC. Group 2 is the documents at tabs 27, 30, 31, and 136 where the order in relation to which was initially opposed by the ACCC but, after conferral, was not opposed.

5    The basis upon which confidentiality is asserted varies from document to document. But, broadly, group 1 documents concern marketing initiatives and objectives by the respondent in relation to new or existing product lines and group 2 documents concern either the same matters or matters involving commercially sensitive pricing strategies and information about the respondent’s pricing of its products.

6    These marketing initiatives and pricing strategies occur in a highly competitive market where the respondent seeks to maximise profit by product differentiation. The respondent’s affidavit evidence from its legal director is to the effect that in this environment, the disclosure of the confidential information in these documents could impact upon that competitive advantage and could also adversely affect its relationships with its retail customers.

7    In Hogan v Australian Crime Commission [2010] HCA 21; (2010) 240 CLR 651, 666 [38], a joint judgment of the High Court quoted from the reasons of Jessup J in the Full Court, Hogan v Australian Crime Commission [2009] FCAFC 71; (2009) 177 FCR 205, 220-221 [42], including the following passage

the question will always be: is an order necessary to prevent prejudice to the administration of justice? Absent an affirmative answer to this question it is, in my view, almost meaningless to propose that documents themselves are, or that the information in them is, inherently confidential to an extent justifying, or assisting in the justification of, the making of an order permanently protecting them from public view.

8    Those remarks were made about s 50 of the Federal Court of Australia Act 1976 (Cth) as it then stood. But they apply equally to s 37AF of the Federal Court of Australia Act 1976 (Cth) read with s 37AG(1)(a). Read together those sections broadly provide power including power to prohibit or restrict disclosure of material including evidence or material obtained on discovery where “the order is necessary to prevent prejudice to the proper administration of justice”.

9    In the circumstances of this case, I am satisfied that the information over which the orders are sought is commercially sensitive, and confidential, information. I also accept the uncontested evidence which I have described about the effects of its disclosure.

10    One relevant factor in applications of this nature is that this court should not willingly permit the disclosure of information in a manner in which the litigation could “become a vehicle for advantaging or prejudicing trade rivals”: Australian Competition & Consumer Commission v Origin Energy Electricity Ltd [2015] FCA 278 [148] (Katzmann J); Australian Competition and Consumer Commission v Cement Australia Pty Ltd (No 2) [2010] FCA 1082 [23] (Greenwood J).

11    On the other hand, my preliminary view, with the aid of written but not oral submissions, is that these documents might be, at best, of only marginal relevance to this litigation. If the tender of peripherally relevant, but confidential, documents were proposed by the respondent then there might be issues concerning whether orders giving effect to a confidentiality regime which goes beyond the protection which the general law concerning confidentiality would otherwise provide are “necessary to prevent prejudice to the proper administration of justice”. But the tender of these documents is proposed by the applicant. In these circumstances I am prepared to make the orders in the terms sought.

Associate:    

Dated:    9 December 2015