Australian Competition and Consumer Commission v BlueScope Steel Limited (No 4) [2021] FCA 1162

Australian Competition and Consumer Commission v BlueScope Steel Limited (No 4) [2021] FCA 1162

The notice to produce was set aside because it was being used as a form of discovery, sought the whole of Mr Ellis' Microsoft Outlook file for an approximately six year period, was too broad and fishing, lacked apparent relevance because it was unknown whether any documents would add to the relevant evidence, and was oppressive because it would require review of a very large number of documents most of which were likely irrelevant. The lateness of the request in the fourth week of trial meant compliance would require an adjournment of at least two weeks, contrary to the overarching obligations in s 37M.

Jurisdiction
Australia
Judgment Date
23 September 2021
Procedural Posture
Interlocutory Application to Set Aside Notice to Produce in a Competition Proceeding / Fourth Week of a Six Week Trial; ACCC Had Closed Its Case and Reasons Were Given for Orders Made on 23 September 2021
Outcome
Notice to produce set aside; unopposed further discovery order made against the second respondent.
Legal Topics
['notice to Produce' 'subpoena Principles' 'abuse of Process' 'oppression' 'apparent Relevance' 'discovery' 'overarching Purpose' 'cartel Conduct']
['practice and Procedure' 'competition and Consumer Law'] ['notice to Produce' 'subpoena Principles' 'abuse of Process' 'oppression' 'apparent Relevance' 'discovery' 'overarching Purpose' 'cartel Conduct']

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Procedural Posture

Interlocutory Application to Set Aside Notice to Produce in a Competition Proceeding / Fourth Week of a Six Week Trial; ACCC Had Closed Its Case and Reasons Were Given for Orders Made on 23 September 2021

Legal Issues

  1. 1 ["Whether the ACCC's notice to produce seeking the mailbox or .PST file for Mr Ellis should be set aside as an abuse of process because it was being used for discovery." 'Whether the notice to produce was oppressive because compliance would require review of a large volume of documents and would adjourn the trial.' 'Whether the documents sought had apparent relevance to the issues in the proceeding.' 'Whether permitting the notice would be inconsistent with the overarching purpose in s 37M of the Federal Court of Australia Act 1976 (Cth).']

Ratio Decidendi

The notice to produce was set aside because it was being used as a form of discovery, sought the whole of Mr Ellis' Microsoft Outlook file for an approximately six year period, was too broad and fishing, lacked apparent relevance because it was unknown whether any documents would add to the relevant evidence, and was oppressive because it would require review of a very large number of documents most of which were likely irrelevant. The lateness of the request in the fourth week of trial meant compliance would require an adjournment of at least two weeks, contrary to the overarching obligations in s 37M.

Court Disposition

Notice to produce set aside; unopposed further discovery order made against the second respondent.

Orders

  • ["The applicant's Notice to Produce dated 22 September 2021 under r 30.28(1) of the Federal Court Rules 2011 (Cth) be set aside." 'By 4:00 pm on 23 September 2021 the second respondent give discovery of all documents recording or evidencing communications with Simon Lenton in the period from 1 January 2016 to date.']