Australia: Civil Proceedings For Cartel Conduct: No Public Interest In Australia In Preventing Disclosure Of Whistleblower’s Statement

Last Updated: 6 March 2008
Article by Graham Maher

The Australian Federal Court recently rejected an argument by the Australian Competition and Consumer Commission (ACCC) that draft witness statements made by officers of an immunity applicant and intended for use, although not used, in penalty proceedings, should not be disclosed in subsequent civil proceedings on the basis of public interest immunity1.

The civil proceedings in question followed from the successful resolution by the ACCC of proceedings in respect of alleged price fixing behaviour by Visy Industry Holdings Pty Limited and related entities (Visy) and AMCOR Limited and related entities (AMCOR), in respect of which AMCOR applied for and received immunity from prosecution from the ACCC and which resulted in penalties of approximately $36 million being imposed on Visy2.

In subsequent civil proceedings AMCOR discovered certain draft witness statements which had been prepared by the ACCC for anticipated use in the penalty proceedings. The ACCC sought to prevent disclosure of certain of these witness statements, which were not produced at trial.

The ACCC's attempts to argue litigation privilege and attorney work product privilege failed, the latter not being a concept which was recognised under Australian law3.

The ACCC further argued that certain of the draft witness statements should not be discovered by the whistleblowing party in the subsequent civil proceedings on the basis that the 'public interest' required that the confidentiality of information provided by cartel whistleblowers should be preserved to encourage them to come forward.

The ACCC acknowledged that confidentiality in the draft witness statements could not be absolute as a prospective witness may in fact be called to give evidence, however it argued that it was common for cartel cases to settle in which case the statement of the whistleblower would never enter the public domain4. In the instant case however the Court noted that none of the prospective witnesses had themselves sought to claim confidentiality in their draft statements which vitiated the force of the public interest claim5.

Further, and more broadly important the Court held that:

  • Because of the collusive nature of cartels, it was "inevitable and self-evident" that the statements of a cooperating "criminal"6 conspirator will be disclosed to the non-cooperating conspirators and it must be taken for granted that a cartel participant contemplating a confession to the ACCC knows, or should know, that his statement would be used by the ACCC to prosecute the other party. Consequently, a whistleblower to cartel behaviour could not have a reasonable expectation as to confidentiality7;
  • there was an equal "if not more compelling" public interest in allowing private litigants to rely on the output of the ACCC's regulatory investigations. Here the Court commented that the ACCC was not motivated by "corporate profit motives or competitive concerns8.

While restricted to the facts under consideration, the relevant documents being draft witness statements and there being no assertion of confidentiality by the relevant whistleblowers, the decision itself is not exceptionable. However, of greater concern to prospective whistleblowers in this area is the import of the Court's reasoning described in the previous paragraph. Taken to its logical conclusion these comments suggest that an Australian Court would be willing to compel production of documents and other information disclosed by a leniency/immunity applicant to the ACCC in confidence, in favour of a civil plaintiff, which may place such a party in a worse position than the other members of the cartel in consequent civil proceedings.

The decision described above is one of a single judge at first instance and it remains to be seen whether it will be appealed by the ACCC. Based on recent public comments by ACCC representatives we anticipate the ACCC will continue to assert public interest privilege in respect of documents and information supplied to it by whistleblowers in confidence. However, the extent to which Australian Courts will look favourably on such arguments has been thrown into doubt by this decision.


1. Cadbury Schweppes Pty Ltd v Amcor Limited [2008] FCA 8, 19/02/08

2. Australian Competition and Consumer Commission v Visy Industry Holdings Pty Limited (No 3) (2007) APPR 42-185) (the penalty proceedings)

3. Cadbury Schweppes, at para 33

4. At para 28

5. At para 29

6. Nb cartel behaviour is not yet a specific criminal offence in Australia

7. At para 30

8. At para 32

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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