AUSTRALIAN COMPETITION TRIBUNAL

 

Nestlé Australia Ltd [2006] ACompT 9


 


 


 


 


RE:     APPLICATION BY NESTLÉ AUSTRALIA LTD PURSUANT TO SECTION 101A FOR REVIEW OF AUSTRALIAN COMPETITION AND CONSUMER COMMISSION NOTICE UNDER SECTION 93(3) REGARDING NESTLÉ AUSTRALIA LTD’S EXCLUSIVE DEALING NOTIFICATION N31488

 

BY:      NESTLÉ AUSTRALIA LTD

 

FILE NO 7 OF 2006

 

gyles J (deputy president)

24 NOVEMBER 2006

SYDNEY


IN THE AUSTRALIAN COMPETITION TRIBUNAL

FILE NO 7 OF 2006

 

RE:     APPLICATION BY NESTLÉ AUSTRALIA LTD PURSUANT TO SECTION 101A FOR REVIEW OF AUSTRALIAN COMPETITION AND CONSUMER COMMISSION NOTICE UNDER SECTION 93(3) REGARDING NESTLÉ AUSTRALIA LTD’S EXCLUSIVE DEALING NOTIFICATION N31488

 

BY:      NESTLÉ AUSTRALIA LTD

Applicant

 

the tribunal:

GYLEs J (deputy president)

DATE OF ORDER:

24 NOVEMBER 2006

WHERE MADE:

SYDNEY

 

THE TRIBUNAL DECIDES THAT:

 

The application to widen the confidentiality regime is refused. 




IN THE AUSTRALIAN COMPETITION TRIBUNAL

FILE NO 7 OF 2006

 

RE:     APPLICATION BY NESTLÉ AUSTRALIA LTD PURSUANT TO SECTION 101A FOR REVIEW OF AUSTRALIAN COMPETITION AND CONSUMER COMMISSION NOTICE UNDER SECTION 93(3) REGARDING NESTLÉ AUSTRALIA LTD’S EXCLUSIVE DEALING NOTIFICATION N31488

 

BY:      NESTLÉ AUSTRALIA LTD

Applicant

 

the TRIBUNAL:

gyles J (deputy president)

DATE:

24 NOVEMBER 2006

PLACE:

SYDNEY


REASONS FOR DECISION

1                     The matter for decision this afternoon relates to the confidentiality of material emanating from ALDI.  It is put on behalf of Nestlé that the regime which is applicable at the moment is too restrictive.  First, in relation to some documents, even the lawyers have only seen a redacted version and it is submitted that there should be no such masking of the contents of documents.  Secondly, it is said that in relation to other documents, or to a group of documents at least, that the redacted versions should be made available more widely within Nestle than simply to lawyers. 

2                     The particular focus of the application is upon the identity of the supplier or suppliers of the relevant imported product being sold by ALDI.  There can be no doubt that that is highly sensitive information, the disclosure of which would have a significant impact upon commercial realities.  Whether or not it would, as counsel for ALDI submits, make the proceedings moot, may or may not be correct, but it would undoubtedly have very significant commercial consequences.  That is not a result which is to be risked unless I am satisfied that the information is critical to the case.

3                     It needs to be borne in mind that Nestlé has chosen to bring the proceedings and, as the applicant, it has to establish its case.  The Tribunal has to be very astute to ensure that its processes are not utilised in a way which has commercial ramifications and disadvantages which are not the proper result of such a proceeding.  In saying that, I am not suggesting that there was any such purpose, but I underline the sensitivity of the topic.

4                     First, as to whether the information has sufficient relevance to found the application for widening of access, it is not quite clear to me at the moment precisely how this information is to be utilised, and in particular, it is not at all clear to me how this information relates to the grounds in paragraph 3 of the application to the Tribunal.  Counsel for Nestlé has gone to some trouble to identify issues arising out of the Statements of Facts, Issues and Contentions, and has taken me to a number of documents.  Having done that, I am unpersuaded at the moment that the information as to the source of supply is of such critical relevance to justify the risks to which I have referred. 

5                     It may be that as the matter unfolds the relevance will become clearer to me than it is at the moment, or it may be that it will become clear to me that it has no real relevance at all.  In either event the procedure can be moulded to meet the situation.  In saying this, I am not encouraging continuing interlocutory applications, but with a matter of this kind, on the one hand, the applicant is entitled to pursue its case with as much information as it can marshal but, on the other hand, there are very powerful commercial interests at stake, which also have an effect upon the Australian consumer one way or the other.

6                     The fact that the Australian Competition and Consumer Commission joins with ALDI has, I think, no greater force than to indicate the intellectual strength of the argument.  The mere fact that the regulator has put that view does not mean it is entitled to extra weight on the scales.  The significance that I can attach to it is that it has facilitated a better understanding of the relevance of the material at the moment.  It has assisted me in reaching the point that I cannot be satisfied of the critical nature of the information and therefore, in my opinion, both limbs of the application fail at the moment. 

7                     I should also add that so far as the redaction of material from external lawyers is concerned, I am not persuaded of the view that all material needs to be provided to lawyers.  The main thing is to decide whether it is relevant and if so whether it is critically relevant, and if so whether it should be produced.  In my time in the law, the whole process of masking material and giving it to lawyers has developed.  It is of relatively recent origin and I think it can cause severe problems.  For example, it is impossible, in a sense, to forget things one knows and a lawyer may have conflicting confidentiality undertakings in case A, case B, and case C.  Now of course, if it gets to the point that you simply cannot do your duty, you have got to get out of the case.  Suffice to say that there are great problems associated with allowing lawyers to see material which the client cannot. 

8                     I also do not underrate what Mr Moore said about the possibility of mistaken disclosure by lawyers.  I have been in cases where people on both sides of cases have inadvertently produced material which should not have been produced, sometimes to the Court and sometimes to each other.  I have also been in cases where confidential matters have been mentioned in open court, sometimes by the judge and, in fact, I may even have done it myself on one or more occasions.  It imposes a great constraint upon the conduct of litigation.  Now, that is not to say that an argument cannot be made for it, because there are some things so critical to the strategy of a case that, without knowing them, it is difficult for the lawyers to have any sort of ability to run it.  However, I do not think that a case has been established for it in this instance.

 

I certify that the preceding eight (8) numbered paragraphs are a true copy of the Reasons for Decision herein of Gyles J (Deputy President).



Associate:


Dated:         30 November 2006


Counsel for the Applicant:

Mr PJ Brereton

 

 

Solicitors for the Applicant:

Mallesons Stephen Jaques

 

 

Counsel for the ALDI Stores:

Mr CA Moore

 

 

Solicitors for the ALDI Stores:

Baker & McKenzie

 

 

Counsel for the ACCC:

Mr S White SC, Ms R Higgins

 

 

Solicitors for the ACCC:

Australian Government Solicitor

 

 

Counsel for Woolworths:

Mr MA Jones

 

 

Solicitors for Woolworths:

Clayton Utz


Date of Hearing:

24 November 2006

 

 

Date of Decision:

24 November 2006