Australian Competition and Consumer Commission v Trading Post Australia Pty Limited [2008] FCA 1298

Australian Competition and Consumer Commission v Trading Post Australia Pty Limited [2008] FCA 1298

Google's production application was refused because, after inspection, the five letters were found not to tend to establish Google's case; they were prepared for the purpose of negotiating settlement between the ACCC and Trading Post and did not carry the matter further than Trading Post's undertaking. In any event, policy reasons protecting frank settlement negotiations weighed against disclosure. Leave to amend was granted because the proposed amendments more fully raised the real questions in issue, addressed continuing conduct and Google's s 85(3) defence, avoided multiplicity of proceedings, and the proceeding was at a relatively incomplete stage with no hearing date fixed; any...

Jurisdiction
Australia
Judgment Date
21 August 2008
Procedural Posture
Interlocutory Applications in Trade Practices Act Proceedings / Application by Second Respondent for Production Under S 157 of the Trade Practices Act 1974 (cth) and Application by Applicant for Leave to Amend Pleadings
Outcome
Google's application for further discovery was dismissed with costs. The ACCC's application for leave to amend and file a Second Further Amended Statement of Claim was granted.
Legal Topics
['production of Documents Under S 157 of the Trade Practices Act 1974 (cth)' 'legal Professional Privilege and Without Prejudice Settlement Correspondence' 'leave to Amend Pleadings' 'misleading or Deceptive Conduct' 'sponsored Links and Internet Advertising']
['practice and Procedure' 'competition and Consumer Law' 'evidence and Privilege'] ['production of Documents Under S 157 of the Trade Practices Act 1974 (cth)' 'legal Professional Privilege and Without Prejudice Settlement Correspondence' 'leave to Amend Pleadings' 'misleading or Deceptive Conduct' 'sponsored Links and Internet Advertising']

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Procedural Posture

Interlocutory Applications in Trade Practices Act Proceedings / Application by Second Respondent for Production Under S 157 of the Trade Practices Act 1974 (cth) and Application by Applicant for Leave to Amend Pleadings

Legal Issues

  1. 1 ["Whether the Court should order the ACCC to produce five letters from Trading Post's solicitors under s 157 of the Trade Practices Act 1974 (Cth)." 'Whether settlement correspondence brought into existence for the dominant purpose of negotiating settlement should be disclosed to Google.' 'Whether the ACCC should be granted leave to amend and file a Second Further Amended Statement of Claim and Second Further Amended Application.']

Ratio Decidendi

Google's production application was refused because, after inspection, the five letters were found not to tend to establish Google's case; they were prepared for the purpose of negotiating settlement between the ACCC and Trading Post and did not carry the matter further than Trading Post's undertaking. In any event, policy reasons protecting frank settlement negotiations weighed against disclosure. Leave to amend was granted because the proposed amendments more fully raised the real questions in issue, addressed continuing conduct and Google's s 85(3) defence, avoided multiplicity of proceedings, and the proceeding was at a relatively incomplete stage with no hearing date fixed; any...

Court Disposition

Google's application for further discovery was dismissed with costs. The ACCC's application for leave to amend and file a Second Further Amended Statement of Claim was granted.

Orders

  • ['The application by the second respondent for further discovery of documents by the applicant is dismissed with costs.' 'The application by the applicant for leave to amend and file a Second Further Amended Statement of Claim is granted.' 'The applicant is to pay any costs thrown away as a consequence of the...