Australian Competition & Consumer Commission v Australian Safeway Stores Pty Ltd & Ors [1998] FCA 1599

Australian Competition & Consumer Commission v Australian Safeway Stores Pty Ltd & Ors [1998] FCA 1599

The subpoenas are oppressive because this is the third round, cover categories already addressed before, are burdensome at a busy time for the non-party companies, and require substantial resources for compliance disproportionate to their peripheral or nonexistent relevance. The documents sought for periods after 1995 do not have apparent relevance to the substantive issues in the proceeding, which concern incidents in 1994 and 1995. Even limiting the subpoena to 1994 and 1995, much has been covered by prior subpoenas and the burden of a third search is undue.

Parties
Applicant: Australian Competition and Consumer Commission; First Respondent: Australian Safeway Stores Pty Limited; Second Respondent: George Weston Foods Limited; Third Respondent: Mark Jones; Fourth Respondent: Bernie Brookes; Non Party: Quality Bakers Australia Limited; Non Party: Sunicrust Bakeries Pty Limited
Jurisdiction
Australia
Judgment Date
15 December 1998
Procedural Posture
Application / Interlocutory/subpoena Setting Aside Motion
Outcome
Subpoenas set aside; costs awarded to subpoenaed parties against first, third and fourth respondents.
Legal Topics
Subpoenas, Oppression, Relevance, Trade Practices Act 1974 (cth), Pecuniary Penalties, Market Definition, Abuse of Process
Practice and Procedure Competition Law Subpoenas Oppression Relevance Trade Practices Act 1974 (cth) Pecuniary Penalties Market Definition +1 more

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Parties

Australian Competition and Consumer Commission

Applicant

Australian Safeway Stores Pty Limited

First Respondent

George Weston Foods Limited

Second Respondent

Mark Jones

Third Respondent

Bernie Brookes

Fourth Respondent

Quality Bakers Australia Limited

Non Party

Sunicrust Bakeries Pty Limited

Non Party

Procedural Posture

Application / Interlocutory/subpoena Setting Aside Motion

Legal Issues

  1. 1 Whether the third subpoenas for production served on George Weston Foods Limited, Quality Bakers Australia Limited and Sunicrust Bakeries Pty Limited are oppressive
  2. 2 Whether the documents sought by the subpoenas are relevant to the issues in the proceeding

Ratio Decidendi

The subpoenas are oppressive because this is the third round, cover categories already addressed before, are burdensome at a busy time for the non-party companies, and require substantial resources for compliance disproportionate to their peripheral or nonexistent relevance. The documents sought for periods after 1995 do not have apparent relevance to the substantive issues in the proceeding, which concern incidents in 1994 and 1995. Even limiting the subpoena to 1994 and 1995, much has been covered by prior subpoenas and the burden of a third search is undue.

Court Disposition

Subpoenas set aside; costs awarded to subpoenaed parties against first, third and fourth respondents.

Orders

  • The subpoenas issued on or about 10 November 1998 at the request of the first, third and fourth respondents directed to George Weston Foods Limited, Quality Bakers Australia Limited and Sunicrust Bakeries Pty Limited be set aside.
  • The first, third and fourth respondents pay the costs of George Weston Foods Limited, Quality Bakers Australia Limited and Sunicrust Bakeries Pty Limited in respect of their respective motions to set aside the subpoena addressed to each of them.