Australian Competition and Consumer Commission v Prysmian Cavi E Sistemi S.R.L (No 11) [2015] FCA 876

Australian Competition and Consumer Commission v Prysmian Cavi E Sistemi S.R.L (No 11) [2015] FCA 876

The ACCC’s application failed because the evidence did not establish reasonable grounds for being fairly certain that relevant documents which have not been discovered are, or have been, in the control of Nexans SA. The documents are in the control of Nexans France, and the relationship of holding company and subsidiary and shared infrastructure does not in itself amount to control for the purpose of discovery.

Parties
Applicant: Australian Competition and Consumer Commission; First Respondent: Prysmian Cavi E Sistemi S.R.L. (formerly Prysmian Cavi E Sistemi Energia S.R.L.); Second Respondent: Nexans SA RCS Paris 393 525 852
Jurisdiction
Australia
Judgment Date
19 August 2015
Procedural Posture
Interlocutory Application for Further and Better Discovery / Ruling on Interlocutory Discovery Application
Outcome
Application dismissed
Legal Topics
Further and Better Discovery, Control of Documents in Corporate Group, Standard Discovery, Separate Corporate Personality
Practice and Procedure Competition Law Further and Better Discovery Control of Documents in Corporate Group Standard Discovery Separate Corporate Personality

Case Brief

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Parties

Australian Competition and Consumer Commission

Applicant

Prysmian Cavi E Sistemi S.R.L. (formerly Prysmian Cavi E Sistemi Energia S.R.L.)

First Respondent

Nexans SA RCS Paris 393 525 852

Second Respondent

Procedural Posture

Interlocutory Application for Further and Better Discovery / Ruling on Interlocutory Discovery Application

Legal Issues

  1. 1 Whether there are reasonable grounds for being fairly certain that there are other relevant documents in or have been in the control of the second respondent
  2. 2 Whether the holding company has 'control' over documents in the possession of its subsidiary for the purposes of discovery

Ratio Decidendi

The ACCC’s application failed because the evidence did not establish reasonable grounds for being fairly certain that relevant documents which have not been discovered are, or have been, in the control of Nexans SA. The documents are in the control of Nexans France, and the relationship of holding company and subsidiary and shared infrastructure does not in itself amount to control for the purpose of discovery.

Court Disposition

Application dismissed

Orders

  • The applicant's interlocutory application dated 23 July 2015 be dismissed.