Australian Competition & Consumer Commission v News Corporation Ltd & Ors [1997] FCA 1175

Australian Competition & Consumer Commission v News Corporation Ltd & Ors [1997] FCA 1175

The Court refused to release persons from obligations concerning confidential material because no civil liability under the Corporations Law, and on the evidence no United States liability, would arise from non-disclosure where disclosure was prohibited by Court order, undertaking or implied undertaking. The Court released the implied undertaking for non-confidential filed material not yet read because the Telstra public offering and the public interest in an informed market constituted special circumstances justifying disclosure to the relevant Australian and overseas due diligence committees and associated persons.

Jurisdiction
Australia
Judgment Date
31 October 1997
Procedural Posture
Federal Court Proceeding Concerning Interlocutory Relief Restraining Respondents From Entering Into or Giving Effect to a Merger Agreement / Interlocutory Motion by Telstra Concerning Release From Confidentiality Orders, Confidentiality Undertakings and Implied Undertakings
Outcome
Motion allowed in part: confidential material remained protected by orders, while non-confidential affidavit material could be disclosed to the specified due diligence committees; Telstra was ordered to pay part of Optus' costs.
Legal Topics
['confidentiality Orders' 'implied Undertaking as to Use of Filed Material' 'release From Harman Undertaking' 'public Share Offer Due Diligence' 'disclosure Obligations Under Corporations Law' 'commercially Sensitive Information']
['civil Procedure' 'confidentiality' 'corporations Law' 'competition Law'] ['confidentiality Orders' 'implied Undertaking as to Use of Filed Material' 'release From Harman Undertaking' 'public Share Offer Due Diligence' 'disclosure Obligations Under Corporations Law' 'commercially Sensitive Information']

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Procedural Posture

Federal Court Proceeding Concerning Interlocutory Relief Restraining Respondents From Entering Into or Giving Effect to a Merger Agreement / Interlocutory Motion by Telstra Concerning Release From Confidentiality Orders, Confidentiality Undertakings and Implied Undertakings

Legal Issues

  1. 1 ['Whether Telstra lawyers should be released from confidentiality orders and undertakings so that confidential affidavit material could be disclosed to due diligence committees for the Telstra Corporation Limited Share Sale.' 'Whether Telstra lawyers and related persons should be released from the implied undertaking limiting use of filed but unread material to the purposes of the litigation.' 'Whether possible disclosure obligations under Australian and United States securities laws justified release from confidentiality obligations.' 'Whether special circumstances existed to permit disclosure of non-confidential filed material not yet read in the proceedings.']

Ratio Decidendi

The Court refused to release persons from obligations concerning confidential material because no civil liability under the Corporations Law, and on the evidence no United States liability, would arise from non-disclosure where disclosure was prohibited by Court order, undertaking or implied undertaking. The Court released the implied undertaking for non-confidential filed material not yet read because the Telstra public offering and the public interest in an informed market constituted special circumstances justifying disclosure to the relevant Australian and overseas due diligence committees and associated persons.

Court Disposition

Motion allowed in part: confidential material remained protected by orders, while non-confidential affidavit material could be disclosed to the specified due diligence committees; Telstra was ordered to pay part of Optus' costs.

Orders

  • ["The affidavits and parts of affidavits in Schedule A be disclosed by the Solicitors for Telstra only to respondents' solicitors who have signed confidentiality undertakings and to counsel for the respondents." "The affidavits and parts of affidavits in Schedule B be disclosed by the Solicitors for Telstra only to...