FEDERAL COURT OF AUSTRALIA ACCC v INFO4PC.COM Pty Ltd [2001] FCA 258 PRACTICE AND PROCEDURE – affidavit – filed in present proceeding – application by party for leave for use by non-party in second proceeding – whether leave should be granted – consideration of circumstances relevant to grant Federal Court Rules O 46 r 6(3) Springfield Nominees Pty Limited v Bridgelands Securities Limited (1992) 38 FCR 217, applied Crest Homes PLC v Marks [1987] AC 829, considered Holpitt Pty Ltd v Varimu Pty Ltd (1991) 29 FCR 576, considered Sweetman v Australian Thoroughbred Finance Pty Ltd (Lockhart J, 23 July 1992, unreported), considered Complete Technology Pty Ltd v Toshiba (Australia) Pty Ltd (1994) 124 ALR 493, considered Autodesk Australia Pty Ltd v Dyason (1994) 30 IPR 469, considered Re Addstone Pty Ltd (in liq); Ex parte Macks (1998) 30 ACSR 156 and 162, considered AUSTRALIAN COMPETITION AND CONSUMER COMMISSION v INFO4PC.COM PTY LTD and JAMES HAMILTON RAE S 17 of 2001 RD NICHOLSON J 15 MARCH 2001 PERTH IN THE FEDERAL COURT OF AUSTRALIA WESTERN AUSTRALIA DISTRICT REGISTRY S 17 of 2001 BETWEEN: AUSTRALIAN COMPETITION AND CONSUMER COMMISSION APPLICANT AND: INFO4PC.COM PTY LTD (ACN 094 149 149) FIRST RESPONDENT AND: JAMES HAMILTON RAE SECOND RESPONDENT JUDGE: R D NICHOLSON J DATE OF ORDER: 15 MARCH 2001 WHERE MADE: PERTH THE COURT ORDERS THAT: Upon the Ministry of Fair Trading (Western Australia) undertaking to the Court not to use the following document or the information in it for any purpose other than evidence in the proceeding CIV 2738 of 2000 in the Supreme Court of Western Australia: 1. The applicant's motion date 22 February 2001 be granted. 2. The applicant have leave to provide that Ministry with the affidavit of James Hamilton Rae dated 13 February 2001 filed in this proceeding. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. IN THE FEDERAL COURT OF AUSTRALIA WESTERN AUSTRALIA DISTRICT REGISTRY S 17 of 2001 BETWEEN: AUSTRALIAN COMPETITION AND CONSUMER COMMISSION APPLICANT AND: INFO4PC.COM PTY LTD (ACN 094 149 149) FIRST RESPONDENT AND: JAMES HAMILTON RAE SECOND RESPONDENT JUDGE: R D NICHOLSON J DATE: 15 MARCH 2001 PLACE: PERTH REASONS FOR JUDGMENT 1 The applicant brings a motion seeking leave to provide to the Ministry of Fair Trading (Western Australia) ("the Ministry") an affidavit of the second respondent sworn on 13 February 2001. The leave is sought as a consequence of the provisions of O 46 r 6(3) of the Federal Court Rules which requires such leave in respect of inspection by a person not a party to a proceeding in respect of an affidavit, other than an affidavit accompanying an application under s 61 of the Native Title Act 1993 (Cth). 2 The affidavit of the second respondent in question is one in which he deposed on behalf of the first respondent. 3 The affidavit came into being in the following circumstances. On 24 January 2001 von Doussa J made orders including, inter alia, an order that: "The respondent by its servants, agents or otherwise be restrained from advertising, continuing to advertise and/or accepting orders for computers and/or upgrades to computer systems from the date of service of this order until 31 January 2001 at 5.00WST in the afternoon." 4 The order was served on the first respondent (then the only respondent) on 25 January 2001. On 30 January 2001 it was alleged that the internet website of the first respondent contained words amounting to an advertisement soliciting orders for computers and upgrades for computer systems. By notice of motion date 31 January 2001 the applicant moved the Court an order punishing the respondent and/or its servants or agents for contempt of court for failure to comply with the above order of von Doussa J. The affidavit of the second respondent now in question was prepared in response to the motion. In it the second respondent on behalf of the first respondent sought to state its knowledge of matters relevant to the charge of contempt. Among the matters referred to was that the first respondent had entered into enforceable undertakings in the Supreme Court of Western Australia as a result of an action undertaken there by the Ministry. 5 The law applicable to the exercise of the discretion to grant leave was considered by Wilcox J in Springfield Nominees Pty Limited v Bridgelands Securities Limited (1992) 38 FCR 217. At 223 his Honour accepted that for leave to be granted "special circumstances" in the sense described by Lord Oliver in Crest Homes PLC v Marks [1987] AC 829 need to be present. He accepted that formulation especially having regard to the adoption by Burchett and Lockhart JJ of the formula stipulated in Crest Homes and adopted the explanation of the term given by Burchett J and applied by Lockhart J (at 225). Burchett J's explanation appears in Holpitt Pty Ltd v Varimu Pty Ltd (1991) 29 FCR 576 at 578 – 9. His Honour pointed out that the question in Crest Homes was whether leave ought to be granted to use the discovered documents in contempt proceedings and he commented (at 578) that "in those circumstances, it is easy to understand why it may have been thought the reasons required to be cogent and persuasive". He continued to the effect that for "special circumstances" to exist there must be some special feature which affords a reason for releasing or modifying the undertaking so that by the words "special circumstances" are meant "for special reasons". Lockhart J's application of this followed in Sweetman v Australian Thoroughbred Finance Pty Ltd (Lockhart J, 23 July 1992, unreported) where it was held that the extent of commonality between two proceedings constituted special circumstances. These authorities are discussed by Wilcox J in Springfield at 223 – 4. 6 Wilcox J continued (at 225) by stating: "For "special circumstances" to exist it is enough that there is a special feature of the case which affords a reason for modifying or releasing the undertaking and is not usually present. The matter then becomes one of the proper exercise of the court's discretion, many factors being relevant. It is neither possible nor desirable to propound an exhaustive list of those features. But plainly they include the nature of the document, the circumstances under which it came into existence, the attitude of the author of the document and any prejudice the author may sustain, whether the documents pre-existed litigation or was created for that purpose and therefore expected to enter the public domain, the nature of the information in the document (in particular whether it contains personal data or commercially sensitive information), the circumstances in which the document came into the hands of the applicant for leave and, perhaps most important of all, the likely contribution of the document to achieving justice in the second proceeding." 7 This statement was followed in Complete Technology Pty Ltd v Toshiba (Australia) Pty Ltd (1994) 124 ALR 493 at 501 – 2 by Hill J. It was applied in Autodesk Australia Pty Ltd v Dyason (1994) 30 IPR 469 at 471 by Northrop J; in Re Addstone Pty Ltd (in liq); Ex parte Macks (1998) 30 ACSR 156 and 162 by Mansfield J. 8 The special circumstance which is said to exist here is that the affidavit of the second respondent on behalf of the first respondent is arguably evidence of the knowledge of the first respondent of the undertakings given to the Supreme Court of Western Australia which it is intended to allege have been breached by the first respondent. There is therefore a special reason why the affidavit filed in this proceeding would have further purpose in the proceeding in the Supreme Court (CIV 2738 of 2000). 9 I turn now to the particular factors adumbrated by Wilcox J in Springfield. The nature of the document is that it is an affidavit as to the knowledge of the second respondent on behalf of the first respondent. The circumstances under which it came in to existence have been described. The opportunity was given to the second respondent to file submissions but advice was received from his solicitors that he did not propose to make any submissions and requests that the Court determine the application on the basis of the papers filed by the applicant. Accordingly, it can be inferred that the second respondent does not anticipate any prejudice he may sustain as a consequence of leave being granted. It is apparent the document was created for the purpose of this present litigation. The affidavit does not contain personal data or commercially sensitive information. The affidavit came in to the knowledge of the applicant as a party to this proceeding. The applicant administers like legislation to that administered by the Ministry. It is apparent that it is likely that the document would aid the achievement of justice in a second proceeding in the Supreme Court. 10 Consideration of these factors leads me to the conclusion that it would be proper to give leave in the present case but for one further factor. The application is brought by the applicant as a party but does not relate to use by it in the other proceeding. The application is not brought by the Ministry as the party seeking to make use of the document. For the applicant it is submitted this is not material because the Ministry on receiving the document would become bound by the implied undertaking in relation to it which presently exists between the applicant and the Court. I do not agree that what was said by Lord Oliver in Crest Homes at 853 – 854 provides support for that submission. I have been unable to locate any instance on all fours with the orders sought for the applicant where there is an independent party who will use the document. Springfield itself involved an application by a stranger third party. I also prefer the undertaking by a stranger third party to be express, not implied. Order 35 r 11 of the Federal Court Rules contemplates undertakings being given by a party or non-party. 11 I therefore consider the Ministry should be required to provide an undertaking to the Court that it will not use the document in question or the information in it for any purpose other than evidence in the Supreme Court proceedings. Subject to that, and for the foregoing reasons, it would be appropriate for the motion to be granted. I certify that the preceding eleven (11) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice R D Nicholson. Associate: Dated: 15 March 2001 Counsel for the Applicant: Mr AA Jenshel Solicitor for the Applicant: Australian Government Solicitor Counsel for the First Respondent: No appearance Solicitor for the First Respondent: None on record Counsel for Second Respondent: Mr NG Pakes Solicitor for Second Respondent: Murcia & Associates Date of Hearing: 1 March 2001 Date of Last Submission: 13 March 2001 Date of Judgment: 15 March 2001