FEDERAL COURT OF AUSTRALIA Australian Competition and Consumer Commission v Liquorland (Australia) Pty Ltd [2007] FCA 148 AUSTRALIAN COMPETITION AND CONSUMER COMMISSION v LIQUORLAND (AUSTRALIA) PTY LTD AND WOOLWORTHS LTD NSD 769 OF 2003 ALLSOP J 16 FEBRUARY 2007 SYDNEY IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY NSD 769 OF 2003 BETWEEN: AUSTRALIAN COMPETITION AND CONSUMER COMMISSION Applicant AND: LIQUORLAND (AUSTRALIA) PTY LTD First Respondent WOOLWORTHS LTD Second Respondent JUDGE: ALLSOP J DATE OF ORDER: 16 FEBRUARY 2007 WHERE MADE: SYDNEY THE COURT ORDERS THAT: 1. The nominated person for the purpose of carrying out the work referred to in the order of the Court of 8 February 2007 be Michael Daniel of Price Waterhouse Coopers Legal. 2. Each party pay its own costs of the argument today. 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 NSD 769 OF 2003 BETWEEN: AUSTRALIAN COMPETITION AND CONSUMER COMMISSION Applicant AND: LIQUORLAND (AUSTRALIA) PTY LTD First Respondent WOOLWORTHS LTD Second Respondent JUDGE: ALLSOP J DATE: 16 FEBRUARY 2007 PLACE: SYDNEY REASONS FOR JUDGMENT 1 In this matter I have made orders on a number of occasions. The last orders were made on 8 February 2007. In the argument leading up to those orders, the Australian Competition and Consumer Commission (the ACCC) put forward argument in favour of final injunctive relief, but limited for a period of five years. That was resisted by Woolworths on the basis that no injunctive relief was necessary because there had been declaratory relief and penalties ordered and also because, from a time in the past, which it is unnecessary to precisely identify, Woolworths had been following a protocol which removed the risk of further infringement of the character that led to this litigation. I indicated that I did not understand why, if final relief was necessary, it should be limited to five years and if the reason that it was limited to five years was because there was less than a real risk of repetition, I was not clear why any injunctive relief should be ordered at all. 2 I suggested that one way of dealing with this might be to see how successful the protocol had really been by receiving a report from an independent expert who could examine the conduct of Woolworths under the protocol. That led to the orders being made on 8 February 2007. The gist of those orders can be seen in the first three lines of order 1 made on that day which required Woolworths at its own cost to provide the applicant with the report of an independent expert. 3 I sought to put in place a regime whereby there would be agreement about the identity of the expert. There is no agreement. By the time of the orders on 8 February there had been a nomination by Woolworths of a particular person and I required that the applicant by yesterday, advise Woolworths of its consent or any objection to the person nominated by Woolworths. I ordered that if no nominated expert be appointed by agreement by yesterday the matter was to come before me today. 4 Woolworths have nominated a partner of Price Waterhouse Coopers Legal, a Mr Daniel, to be the nominated expert. Mr Daniel, I am informed from the Bar table and I accept, has not personally acted for Woolworths in the past, though the firm of which he is a partner has. I am also informed that that firm is not currently acting in any matter. No objection is put to Mr Daniel by the ACCC in the sense that no particular problem with him or his independence is identified. However, the ACCC does not consent to him being the nominated expert and puts forward two other people as possible candidates for the role, in particular one person put forward by the applicant, a Ms Layton. She is a partner in Price Waterhouse Coopers in the "Performance Improvement, Governance, Risk and Compliance Section". Ms Layton is a lawyer by training and also deeply experience in what might be said to be compliance work involving public companies and the like. 5 Given the task to be undertaken both people are amply qualified to do the work. There is no suggestion by either side that the person nominated by the other is other than competent and professionally skilled to undertake the work. What the ACCC says is that Ms Layton has performed work in the past with which the ACCC is familiar and through that knowledge the ACCC has greater personal confidence in her than in Mr Daniel. That was not put by the ACCC as a criticism of Mr Daniel. 6 The orders made on 8 February 2007, as I have indicated, were intended as a way to assist both the applicant and the Court in understanding whether the applicant should ask for and the Court should grant any permanent injunction. The work will involve a familiarity with the confidences and procedures of Woolworths, in circumstances where legal professional privilege will become an issue, though not, I suspect, an insurmountable one. I do not see any reason why the expert nominated by Woolworths should not be appointed. 7 Therefore, the order that I make today is that the nominated expert for the purpose of carrying out the work referred to in the orders of 8 February 2007 be Michael Daniel of Price Waterhouse Coopers Legal. 8 Each party should bear its own costs of today's argument. I certify that the preceding eight (8) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Allsop. Associate: Dated: 28 February 2007 Counsel for the Applicant: Mr D Yates SC and Mr D Godwin Solicitor for the Applicant: Australian Government Solicitor Counsel for the Second Respondent: Mr M A Jones Solicitor for the Second Respondent: Clayton Utz Date of Hearing: 16 February 2007 Date of Judgment: 16 February 2007