Australian Competition and Consumer Commission v Cement Australia Pty Ltd [2010] FCA 997

Australian Competition and Consumer Commission v Cement Australia Pty Ltd [2010] FCA 997

Assuming in favour of the Cement Australia parties that the notice to produce sought adjectivally relevant material, the notice was oppressive because it sought a very large and indeterminate class of documents, effectively required the Commission to undertake an investigation for further documents, and was especially burdensome given the short time allowed for production. The breadth and investigative character of the request made it irremediably bad, so the notice was set aside or the applicant excused from compliance.

Jurisdiction
Australia
Judgment Date
30 August 2010
Procedural Posture
Practice and Procedure; Interlocutory Application Concerning Notice to Produce, Trial Preparation Orders and Subpoenas / Directions Hearing Before Trial
Outcome
The notice to produce issued by the respondents to the applicant dated 20 August 2010 was set aside, or the applicant was otherwise excused from compliance with it. Further interlocutory orders were made for trial preparation, confidentiality, evidence outlines, subpoenas and costs in the cause.
Legal Topics
['notice to Produce' 'oppression' 'legitimate Forensic Purpose' 'discovery' 'subpoena to Give Evidence' 'confidentiality Orders' 'trial Preparation']
['practice and Procedure' 'competition and Consumer Law'] ['notice to Produce' 'oppression' 'legitimate Forensic Purpose' 'discovery' 'subpoena to Give Evidence' 'confidentiality Orders' 'trial Preparation']

Case Brief

Summary, issues, holding and outcome

More case intelligence is available

Unlock the full research layer for this judgment.

Full judgment text Downloadable case file Legal principles 1 Authorities cited 2 Party arguments 2 Amounts and remedies 1
Sign in to unlock

Procedural Posture

Practice and Procedure; Interlocutory Application Concerning Notice to Produce, Trial Preparation Orders and Subpoenas / Directions Hearing Before Trial

Legal Issues

  1. 1 ['Whether the notice to produce dated 20 August 2010 should be set aside or the applicant excused from compliance with it.' 'Whether the documents sought by the notice to produce had apparent relevance and a legitimate forensic purpose.' 'Whether the notice to produce was seriously and unfairly burdensome, prejudicial or oppressive.' "Whether orders should be made for staggered service of the first to fifth respondents' tender bundle." 'Whether the first to fifth respondents should have leave to subpoena Mr Maycock to give evidence at trial and be required to provide an outline of anticipated evidence.' 'Whether confidentiality regimes should apply to third party discovery documents included in tender bundles.']

Ratio Decidendi

Assuming in favour of the Cement Australia parties that the notice to produce sought adjectivally relevant material, the notice was oppressive because it sought a very large and indeterminate class of documents, effectively required the Commission to undertake an investigation for further documents, and was especially burdensome given the short time allowed for production. The breadth and investigative character of the request made it irremediably bad, so the notice was set aside or the applicant excused from compliance.

Court Disposition

The notice to produce issued by the respondents to the applicant dated 20 August 2010 was set aside, or the applicant was otherwise excused from compliance with it. Further interlocutory orders were made for trial preparation, confidentiality, evidence outlines, subpoenas and costs in the cause.

Orders

  • ["The first to fifth respondents serve their proposed tender bundle on the applicant's solicitors by 13 September 2010." "The first to fifth respondents serve any supplementary tender bundle on the applicant's solicitors by 20 September 2010." 'Subject to order 4, documents served under orders 1 and 2 that were...