In a decision that has expanded the evidence available to
private litigants and class actions in competition law cases, the
Full Federal Court has ordered that documents created by the ACCC
and produced to an opposing party in a cartel case are available to
a plaintiff in separate proceedings.
The Court's decision in ACCC v Cadbury Schweppes Pty Ltd
& Ors, handed down on 20 March 2009, denied the ACCC's
claim for legal professional privilege over documents it created
for litigation and produced to an opposing party (Visy) but never
used in open court.
The issue had its origins in the ACCC's proceedings against
Visy for price fixing with Amcor in respect of cardboard packaging
products. In that case, the court ordered the ACCC to file and
serve upon Visy some 111 proofs of evidence of lay witnesses on
which it proposed to rely. However, the case settled and the proofs
were never read in open court; nor were the witnesses called to
Now, in subsequent private proceedings filed against Visy and
Amcor for damages incurred by reason of the cartel, Visy has been
ordered to surrender those witness proofs to Cadbury Schweppes.
Litigation privilege and confidentiality
Litigation privilege attaches to communications made
confidentially between a client and their legal representative for
the dominant purpose of litigation. The ACCC and its lawyers
created the witness proofs for the purpose of its case against
Visy. The proofs contained each witness' identity and the
evidence that they might give in court.
Although the evidence given by witnesses at trial is usually not
confidential or covered by privilege, the ACCC's witnesses in
the Visy prosecution did not ever actually give evidence at
The ACCC claimed, and the Full Court accepted, that the witness
proofs were created and served for the purpose of litigation.
However, the Court refused to go the step further and attach
litigation privilege to the proofs because they were created for
and in fact served upon the ACCC's opponent, Visy, and could
not, therefore, be properly characterised as confidential.
The Full Court's view was that whatever the extent of
confidentiality arising from litigation privilege, the essential
element was non-disclosure to one's opponent. Once a document
is intended to be given to an opposing party, it is no longer a
document in which privilege subsists. Even if confidentiality could
be maintained, filing and service of the proofs amounted to a
waiver of any privilege.
The Court made a distinction between finalised and
draft proofs of evidence, witness statements and
affidavits. Because the purpose of a finalised version of a
document is to give it to the opposing party and disclose the
matters within, regardless of whether it is to be tendered in
court, they will not be covered by the privilege.
Visy, upon receipt of the proofs in the ACCC litigation, had
been subject to an implied undertaking not to use the documents or
any information contained within them for purposes other than the
legitimate purposes of that litigation. However, the primary judge
had released Visy from the undertaking to enable the documents to
be provided to Cadbury Schweppes; this order was not challenged in
the Full Court.
The case illustrates the forensic advantage that private
litigants (including representative or 'class action'
parties) may receive when proceedings are brought in the wake of an
Even where a party, such as Amcor, has obtained immunity from
prosecution under the ACCC's immunity policy or, like Visy, has
settled a prosecution, considerable residual exposure can
The case highlights the need for a well planned and robust
litigation strategy from the outset of any ACCC inquiry or
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.
To print this article, all you need is to be registered on Mondaq.com.
Click to Login as an existing user or Register so you can print this article.
This was an interlocutory decision about the appointment of a tutor for the child appellant, to carry on his proceedings.
Some comments from our readers… “The articles are extremely timely and highly applicable” “I often find critical information not available elsewhere” “As in-house counsel, Mondaq’s service is of great value”
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).