Cadbury Schweppes Pty Ltd (ACN 004 551 473) v Amcor Limited (ACN 000 017 372) [2008] FCA 398

Cadbury Schweppes Pty Ltd (ACN 004 551 473) v Amcor Limited (ACN 000 017 372) [2008] FCA 398

Visy’s implied undertaking not to use documents obtained in the ACCC proceedings does not prevent their discovery and production in these damages proceedings. The implied undertaking yields to this Court’s requirements of discovery and inspection. Alternatively, if a release is required, Visy should be released from...

Source-derived case information.

Parties
Applicant: Cadbury Schweppes Pty Ltd (ACN 004 551 473); First Respondent / First Cross Claimant: Amcor Limited (ACN 000 017 372); Second Respondent / Second Cross Claimant: Amcor Packaging (Australia) Pty Limited (ACN 004 275 165); First Cross Respondent: Visy Board Pty Ltd (ACN 005 787 913); Second Cross Respondent: Visy Industries Holdings Pty Ltd (ACN 005 787 968); Third Cross Respondent: Visy Industries Australia Pty Ltd (ACN 004 337 615); Non Party/intervener: Australian Competition and Consumer Commission
Jurisdiction
Australia
Judgment Date
28 March 2008
Procedural Posture
Civil / Interlocutory Application / Discovery Dispute
Outcome
Cross-Respondents (Visy group) to produce the 111 witness proofs for inspection by Cadbury; order for production stayed until 28 April 2008 or further order; ACCC to pay Cadbury's costs of and incidental to the Amended Notice of Motion dated 23 November 2007, taxed in default of agreement; costs of other parties to...
Legal Topics
Discovery, Implied Undertaking, Legal Professional Privilege, Public Interest Immunity, Confidentiality in Litigation
Civil Procedure Competition Law Discovery Implied Undertaking Legal Professional Privilege Public Interest Immunity Confidentiality in Litigation

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Parties

Cadbury Schweppes Pty Ltd (ACN 004 551 473)

Applicant

Amcor Limited (ACN 000 017 372)

First Respondent / First Cross Claimant

Amcor Packaging (Australia) Pty Limited (ACN 004 275 165)

Second Respondent / Second Cross Claimant

Visy Board Pty Ltd (ACN 005 787 913)

First Cross Respondent

Visy Industries Holdings Pty Ltd (ACN 005 787 968)

Second Cross Respondent

Visy Industries Australia Pty Ltd (ACN 004 337 615)

Third Cross Respondent

Australian Competition and Consumer Commission

Non Party/intervener

Procedural Posture

Civil / Interlocutory Application / Discovery Dispute

Legal Issues

  1. 1 Whether Visy is bound by the implied undertaking not to use documents obtained in the ACCC proceeding in the present damages proceedings
  2. 2 Whether the 111 witness proofs are discoverable and should be produced for inspection to Cadbury
  3. 3 Whether the implied undertaking prevents production of the documents to Cadbury

Ratio Decidendi

Visy’s implied undertaking not to use documents obtained in the ACCC proceedings does not prevent their discovery and production in these damages proceedings. The implied undertaking yields to this Court’s requirements of discovery and inspection. Alternatively, if a release is required, Visy should be released from the undertaking so the material may be inspected by Cadbury, as production contributes to justice and no prejudice to witnesses has been established.

Court Disposition

Cross-Respondents (Visy group) to produce the 111 witness proofs for inspection by Cadbury; order for production stayed until 28 April 2008 or further order; ACCC to pay Cadbury's costs of and incidental to the Amended Notice of Motion dated 23 November 2007, taxed in default of agreement; costs of other parties to...

Orders

  • The Cross-Respondents produce to the Applicant for inspection the documents listed as Category 2 in Appendix A to Cadbury Schweppes Pty Ltd v Amcor Limited [2008] FCA 88.
  • Compliance with Order 1 be stayed until 28 April 2008 or further order.