FEDERAL COURT OF AUSTRALIA

Australian Competition and Consumer Commission v Reckitt Benckiser (Australia) Pty Ltd (No 6) [2016] FCA 355

ORDERS

THE COURT ORDERS THAT:

1.    Subject to any further order of the Court, pursuant to section 37AF of the Federal Court of Australia Act 1976 (Cth), the publication or other disclosure of the RB Confidential Information 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: In these orders:

“RB Confidential Information” means the information contained in the documents listed in the Schedule to Annexure A and any extracts from those documents.

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

REASONS FOR JUDGMENT

EDELMAN J:

1    This is an application by Reckitt Benckiser for confidentiality orders. The Australian Competition and Consumer Commission (ACCC) does not oppose the application. The parties sought to have the application determined on the papers prior to the penalty hearing. I am satisfied that the orders sought should be made. These are my reasons.

2    Reckitt Benckiser relies upon s 37AF of the Federal Court of Australia Act 1976 (Cth) for the confidentiality orders sought. It submits that the orders are necessary to prevent prejudice to the proper administration of justice (see s 37AG(1)(a)).

3    The terms of the proposed orders are similar to those that I made in Australian Competition and Consumer Commission v Reckitt Benckiser (Australia) Pty Ltd (No 3) [2015] FCA 1406. That application formulated the proposed orders in a tailored manner to avoid concerns that I had expressed earlier in a third party application: Australian Competition and Consumer Commission v Reckitt Benckiser (Australia) Pty Ltd (No 2) [2015] FCA 1274. The orders are also appropriately tailored in this application.

4    In Australian Competition and Consumer Commission v Reckitt Benckiser (Australia) Pty Ltd (No 3), which was decided prior to the trial of liability, the confidentiality orders that I made concerned documents that related to Reckitt Benckiser’s marketing initiatives and objectives for product lines, and commercially sensitive pricing strategies and product pricing information. As I observed in my decision on that application, the marketing initiatives and pricing strategies were developed in a highly competitive market where Reckitt Benckiser sought, and seeks, to maximise profit including by its product differentiation. However, confidentiality is not, of itself, sufficient for an order based upon s 37AG(1)(a) of the Federal Court of Australia Act. In Hogan v Australian Crime Commission [2010] HCA 21; (2010) 240 CLR 651, 666 [38], a joint judgment of the High Court quoted the following passage which is applicable to s 37AF of the Federal Court of Australia Act:

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 … 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.

5    This application, which is now made in relation to documents before the Court for the penalty hearing, relies upon confidentiality concerns in relation to trade rivals as the basis for the orders sought. Reckitt Benckiser again relies on the notion 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). Reckitt Benckiser also relies on the unquantifiable damage that the release of the confidential information could cause to its relationships with its customers.

6    An affidavit from Reckitt Benckiser’s legal director for Australia and New Zealand describes the high level of competition in the market for consumer health care products. Reckitt Benckiser’s customers in that market include supermarkets and pharmacies. It competes on price and by product differentiation.

7    In broad terms, the confidential information upon which Reckitt Benckiser relies involves:

(1)    the number of units and wholesale prices of Nurofen Specific Pain Range products sold between 2011 and 2015;

(2)    the proportion of Reckitt Benckiser’s revenue comprised by those sales between 2011 and 2015;

(3)    the proportion of Reckitt Benckiser’s revenue, profit (including reporting practices) comprised by those sales between 2011 and 2015; and

(4)    marketing initiatives, business and sales strategies relating to new and existing product lines and discounts and support offered to retailers.

8    As between Reckitt Benckiser and the ACCC, the propositions in [5] above can be accepted as matters which, without a confidentiality regime ordered by the Court, could prejudice the proper administration of justice. However, it is important to emphasise two matters.

9    The first matter to emphasise is that there was no evidence that, prior to this application, Reckitt Benckiser had sought undertakings from the ACCC in the form which will be embodied in orders of this Court. I am prepared to draw that inference in this case in circumstances in which Reckitt Benckiser is well aware of its obligations under ss 37N(1) and 37M of the Federal Court of Australia Act. But nothing in these reasons should be taken to suggest that it would be appropriate for an applicant to seek confidentiality orders of the type sought by Reckitt Benckiser without first attempting to reach agreement with an applicant about a similar regime for non-disclosure by the offer of private undertakings. It may be appropriate, given the not infrequent nature of these applications, that the ACCC develop a standard form of an undertaking which could be adapted to particular cases to preserve confidential material of a respondent without increasing the time and distraction to the parties with applications of this type before liability and penalty hearings.

10    The second matter is that my acceptance of the propositions in [5] above does not mean that my reasons for decision concerning penalty should omit reference to, or redact, confidential material upon which the ACCC relies. The importance of transparency of decision making, coupled with the prime consideration of deterrence and the need for cases to be decided consistently, are matters which may militate in favour of inclusion of confidential material even if that material would cause prejudice to Reckitt Benckiser. Nevertheless, concerns about commercial confidentiality are significant and where important matters can be expressed without disclosure of this information then that course will usually be taken.

11    I have reviewed each of the paragraphs of the Statement of Agreed Facts and each of the documents in the Court Book over parts of which Reckitt Benckiser seeks confidentiality orders. I am satisfied that they fall within the categories I have described and that the proposed orders are necessary to prevent prejudice to the proper administration of justice.

Associate:    

Dated:    11 April 2016

Annexure A

Confidentiality Regime

NSD180/2015 Australian Competition and Consumer Commission v Reckitt Benckiser (Australia) Pty Ltd

(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);

(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 or 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 and the completion of any process undertaken to give effect to any orders in relation to costs, the ACCC will either return to RB or destroy or delete (as appropriate) any and all originals and copies of documents containing the RB Confidential Information which are held by Disclosure Persons. The obligation contained in paragraph 2(e) of this Annexure A shall not apply to the following documents in the possession of the Disclosure Persons:

(i)    documents containing extracts of the RB Confidential Information prepared or created by the Disclosure Persons for the purpose of the Proceedings; and

(ii)    documents produced by RB in response to the section 155(1)(a) and (b) Notice issued by the ACCC dated 30 May 2014 and the section 155(1)(a) and (b) Notice issued by the ACCC dated 14 November 2014.

(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

PART A – Information contained in the Statement of Agreed Facts dated 1 April 2016 (“SOAF”)

Information designated as “Confidential to RB” at:

(a)    paragraph 23;

(b)    paragraph 37;

(c)    paragraph 39;

(d)    footnote 4 at paragraph 40;

(e)    paragraph 41;

(f)    Schedule A; and

(g)    Schedule E,

of the SOAF provided to the Court on 1 April 2016.

PART B – Court Book

Documents behind the following tabs of the Court Book: