FEDERAL COURT OF AUSTRALIA Harvey Norman Holdings Limited v Fels [2001] FCA 888 HARVEY NORMAN HOLDINGS LIMITED v ALLAN HERBERT MILLER FELS & ANOR N 858 of 2001 STONE J 5 JULY 2001 SYDNEY IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY N 858 OF 2001 BETWEEN: HARVEY NORMAN HOLDINGS LIMITED (ACN 003 237 545) APPLICANT AND: ALLAN HERBERT MILLER FELS FIRST RESPONDENT AUSTRALIAN COMPETITION AND CONSUMER COMMISSION SECOND RESPONDENT JUDGE: STONE J DATE OF ORDER: 5 JULY 2001 WHERE MADE: SYDNEY THE COURT ORDERS THAT: 1. subject to paragraph 2, the respondents give discovery in accordance with the Notice of Discovery by 9 July 2001; 2. in respect of: (a) documents falling within paragraph 2 and paragraph 4 of the Notice of Discovery; (b) documents which both fall within paragraph 1 of the Notice of Discovery and which comprise briefs prepared by the Second Respondent to Phillips Fox, until further court order, inspection be limited to Mr Donohue QC, Mr Carnovale and Mr Stowe (all of counsel); 3. the parties have liberty to apply: (a) on 3 hours notice between the hours of 8 am and 6 pm in respect of any application to extend to the category of persons entitled to inspect the documents referred to in paragraph 2 above; (b) otherwise, on 24 hours notice; 4. the costs of today be reserved. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY N 858 OF 2001 BETWEEN: HARVEY NORMAN HOLDINGS LIMITED (ACN 003 237 545) APPLICANT AND: ALLAN HERBERT MILLER FELS FIRST RESPONDENT AUSTRALIAN COMPETITION AND CONSUMER COMMISSION SECOND RESPONDENT JUDGE: STONE J DATE: 5 JULY 2001 PLACE: SYDNEY REASONS FOR JUDGMENT 1 The second respondent ("ACCC") is in the course of an investigation into whether an advertising catalogue published by a subsidiary of the applicant breached any provision of the Trade Practices Act 1974 (Cth) ("Act"). The ACCC previously retained the firm of Phillips Fox, solicitors, in connection with this investigation. The applicant also has retained Phillips Fox in connection with certain property transactions. The applicant is concerned that confidential information concerning its business processes and methods provided to Phillips Fox may have found its way to the ACCC and may have been used by it in the course of its investigation. In compliance with a request for discovery, the ACCC will produce briefs to counsel prepared by its solicitor in relation to the investigation as well as transcripts of examinations conducted pursuant to notices issued under s 155 of the Act. 2 The parties have agreed that examination of this material should be confined to certain named persons. However, the applicant also wishes to have its solicitor, Mr Peter Wright, examine this material. Mr Carnovale, counsel for the applicant, submitted that Mr Wright has detailed knowledge of the applicant's business practices and that he is in the best position of any available persons to detect whether that which the applicant is concerned about has occurred. 3 The ACCC, on the other hand, has, as Mr Tonking suggested, an interest in preserving the confidentiality of examinations conducted as part of its investigation. Its concern arises because Mr Wright is advising the applicant in connection with the investigation and might, even inadvertently, use the information gained by reviewing the transcript and briefs for the purposes of advising the applicant in relation to the investigation. It has been suggested that Mr Wright would give the usual undertaking not to do so. However, where the concern is that the disclosure or use of the information might be inadvertent, an undertaking will not be adequate to protect the legitimate concerns of the ACCC. 4 The authorities mentioned by Mr Tonking, and in particular Constantine v Trade Practices Commission (1994) ATPR 41-291, establish the confidentiality of the Commission's investigations. Even if I am prepared to assume, in the absence of any evidence, that Mr Wright has the special position claimed by the applicant (and I am prepared to assume that) I am not convinced that no-one else can be briefed to review the transcripts and briefs in a thoroughly adequate way. I accept that this would create some pressures as to time and I accept that it is not the most efficient way for the material to be reviewed but, in the circumstances, it seems to me that it is the best compromise. Therefore, I am not disposed to add Mr Wright's name to the list of those entitled to review the material produced by the ACCC. I certify that the preceding four (4) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Stone. Associate: Dated: 11 July 2001 Counsel for the Applicant: Mr F D Carnovale Solicitor for the Applicant: Gillis Delaney Brown Counsel for the Respondent: Mr A I Tonking Solicitor for the Respondent: Australian Government Solicitor Date of Hearing: 5 July 2001 Date of Judgment: 5 July 2001