Cadbury Pty Ltd v Amcor Limited (No 2) [2009] FCA 663

Cadbury Pty Ltd v Amcor Limited (No 2) [2009] FCA 663

Amcor was required to justify special protection document by document. The usual Harman undertaking was sufficient for information that was old, assumed, estimated, not current, related to Cadbury's former beverage business, or did not establish a current commercial risk. Special protection was warranted where information related to the 2008 financial year or current CFP negotiations, would enable reverse engineering of current figures, was inextricably linked with current information, or clearly related to Amcor's current contractual relations with customers. Because Cadbury was no longer in the beverage or cans business, Amcor's general risk that Cadbury employees might later take cans...

Jurisdiction
Australia
Judgment Date
19 June 2009
Procedural Posture
Interlocutory Application Concerning Confidentiality and Inspection of Discovered Documents / Reasons for Decision; Parties Directed to File Minutes of Orders
Outcome
The Court gave reasons resolving the disputed confidentiality claims, directed the parties to file minutes of orders to give effect to the reasons, and ordered that the costs relating to the issues be costs in the cause.
Legal Topics
['inspection of Discovered Documents' 'implied Undertaking Known as the Harman Principle' 'special Protection Orders' 'commercially Sensitive Information' 'trade Rivals' 'confidential Financial Information']
['civil Procedure' 'discovery' 'confidential Information'] ['inspection of Discovered Documents' 'implied Undertaking Known as the Harman Principle' 'special Protection Orders' 'commercially Sensitive Information' 'trade Rivals' 'confidential Financial Information']

Case Brief

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Procedural Posture

Interlocutory Application Concerning Confidentiality and Inspection of Discovered Documents / Reasons for Decision; Parties Directed to File Minutes of Orders

Legal Issues

  1. 1 ['Whether Amcor should obtain orders limiting the persons within Cadbury to whom particular categories of discovered documents may be disclosed.' 'Whether CFP financial information for 1 January 2007 to present, or for the 2007 financial year and earlier, required protection beyond the Harman undertaking because it could advantage Cadbury in current CFP supply negotiations.' "Whether documents containing commercially sensitive information relating to Amcor's cans business should be disclosed only to Cadbury Instructors, including Mr Banati." 'Whether particular figures, tables, annexures and documents should be protected because they disclosed current information, allowed reverse engineering of current information, were inextricably linked with current information, or related to current contractual relations with customers.']

Ratio Decidendi

Amcor was required to justify special protection document by document. The usual Harman undertaking was sufficient for information that was old, assumed, estimated, not current, related to Cadbury's former beverage business, or did not establish a current commercial risk. Special protection was warranted where information related to the 2008 financial year or current CFP negotiations, would enable reverse engineering of current figures, was inextricably linked with current information, or clearly related to Amcor's current contractual relations with customers. Because Cadbury was no longer in the beverage or cans business, Amcor's general risk that Cadbury employees might later take cans...

Court Disposition

The Court gave reasons resolving the disputed confidentiality claims, directed the parties to file minutes of orders to give effect to the reasons, and ordered that the costs relating to the issues be costs in the cause.

Orders

  • ['By 4:00pm on 24 June 2009, the parties file minutes of orders to give effect to these reasons for decision.' 'The costs relating to the issues the subject of these reasons for decision be costs in the cause.']