FEDERAL COURT OF AUSTRALIA Jarra Creek Packing Shed Pty Ltd v Amcor Ltd (No 2) [2009] FCA 1005 PRACTICE AND PROCEDURE – application for furtherdiscovery – application granted in respect of categories of documents relevant to alleged pre- and post-cartel period – documents necessary to enable expert witness to construct economic model – application denied in respect of documents filed in previous Federal Court proceeding to which respondents were parties Australian Competition and Consumer Commission v Advanced Medical Institute Pty Ltd [2005] FCA 366 referred to Jarra Creek Central Packaging Shed Pty Ltd v Amcor Ltd [2007] FCA 1559 referred to Jarra Creek Central Packaging Shed Pty Ltd v Amcor Limited [2009] FCA 60 referred to Trade Practices Commission v CC (New South Wales) Pty Limited (No 4) (1995) 58 FCR 426 referred to JARRA CREEK PACKING SHED PTY LTD (ACN 085 691 425) v AMCOR LTD (ACN 000 017 372), AMCOR PACKAGING (AUSTRALIA) PTY LTD (ACN 004 275 165), FIBRE CONTAINERS (QUEENSLAND) PTY LTD (ACN 051 607 517), VISY BOARD PROPRIETARY LIMITED (ACN 005 787 913), VISY INDUSTRIES HOLDINGS PTY LTD (ACN 005 787 968) and VISY INDUSTRIES AUSTRALIA PTY LTD (ACN 004 337 615) NSD 702 of 2006 JACOBSON J 8 SEPTEMBER 2009 SYDNEY IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY GENERAL DIVISION NSD 702 of 2006 BETWEEN: JARRA CREEK PACKING SHED PTY LTD ACN 085 691 425 Applicant AND: AMCOR LTD ACN 000 017 372 First Respondent/First Cross-Claimant and Fourth Cross-Respondent AMCOR PACKAGING (AUSTRALIA) PTY LTD ACN 004 275 165 Second Respondent/Second Cross-Claimant and Fifth Cross-Respondent FIBRE CONTAINERS (QUEENSLAND) PTY LTD ACN 051 607 517 Third Respondent/Third Cross-Claimant and Sixth Cross-Respondent VISY BOARD PROPRIETARY LIMITED ACN 005 787 913 Fourth Respondent/Fourth Cross-Claimant and First Cross-Respondent VISY INDUSTRIES HOLDINGS PTY LTD ACN 005 787 968 Fifth Respondent/Fifth Cross-Claimant and Second Cross-Respondent VISY INDUSTRIES AUSTRALIA PTY LTD ACN 004 337 615 Sixth Respondent/Sixth Cross-Claimant and Third Cross-Respondent JUDGE: JACOBSON J DATE OF ORDER: 8 SEPTEMBER 2009 WHERE MADE: SYDNEY THE COURT ORDERS THAT: 1. The parties bring in Short Minutes of Order to give effect to these reasons. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. The text of entered orders can be located using the Federal Law Search on the Court's website. IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY GENERAL DIVISION NSD 702 of 2006 BETWEEN: JARRA CREEK PACKING SHED PTY LTD ACN 085 691 425 Applicant AND: AMCOR LTD ACN 000 017 372 First Respondent/First Cross-Claimant and Fourth Cross-Respondent AMCOR PACKAGING (AUSTRALIA) PTY LTD ACN 004 275 165 Second Respondent/Second Cross-Claimant and Fifth Cross-Respondent FIBRE CONTAINERS (QUEENSLAND) PTY LTD ACN 051 607 517 Third Respondent/Third Cross-Claimant and Sixth Cross-Respondent VISY BOARD PROPRIETARY LIMITED ACN 005 787 913 Fourth Respondent/Fourth Cross-Claimant and First Cross-Respondent VISY INDUSTRIES HOLDINGS PTY LTD ACN 005 787 968 Fifth Respondent/Fifth Cross-Claimant and Second Cross-Respondent VISY INDUSTRIES AUSTRALIA PTY LTD ACN 004 337 615 Sixth Respondent/Sixth Cross-Claimant and Third Cross-Respondent JUDGE: JACOBSON J DATE: 8 SEPTEMBER 2009 PLACE: SYDNEY REASONS FOR JUDGMENT 1 The applicants seek eight categories of documents by way of further discovery. Six of the categories are sought upon the basis that they are necessary for their expert witness, Professor Rubinfeld, to complete his report. The other two categories comprise documents which were filed or served in proceedings in the Victorian Registry of the Court, Cadbury Pty Ltd v Amcor Ltd & Ors (VID 1377 of 2006). 2 The background to the claim for the first six categories is to be found in two judgments of Tamberlin J, Jarra Creek Central Packaging Shed Pty Ltd v Amcor Ltd [2007] FCA 1559; Jarra Creek Central Packaging Shed Pty Ltd v Amcor Limited [2009] FCA 60. Tamberlin J was the docket judge for the matter before he reached the age of Constitutional retirement on 31 March 2009. 3 Tamberlin J's second judgment was delivered on 6 February 2009 when his Honour made orders for further discovery sought by the applicants. He did so upon the basis of evidence from Professor Rubinfeld and "the unsatisfactory nature of the discovery to date". 4 The essence of what was ordered by Tamberlin J was the discovery of sales/price, costs of production and production data for corrugated fibreboard packaging (CFP) and pulp paper products (PPP), which are physical inputs in the manufacture of CFP. His Honour's orders covered the period from 1 January 1998 to 1 May 2006. 5 The reason why discovery was ordered was that those documents were considered to be necessary for the purpose of enabling Professor Rubinfeld to construct an economic model to arrive at an opinion as to what would have been the true price of CFP and PPP but for the existence of a cartel between the Amcor respondents and the Visy respondents. 6 The cartel is said in the Statement of Claim to have been formed in early 2000 and continued until November 2004. The existence of the cartel is said to have been publicly exposed when the Australian Competition and Consumer Commission issued a press release on 21 December 2005, the same day on which it commenced proceedings against Visy Industries Holdings Pty Ltd in this Court. 7 The purpose of discovery of documents covering the period before and after the existence of the cartel is to enable Professor Rubinfeld to have documents covering a "clean period" before and after the cartel so that economic evidence may be given as to the "but for" hypothesis. 8 The period for which documents were to be discovered was determined as long ago as Tamberlin J's first judgment on the question in October 2007. His Honour accepted the need for clean period documents before and after the cartel period. He said at [14] of that judgment that he was not satisfied "at this stage" that documents outside of the eight year period were "appropriate or necessary" for the purpose of ascertaining a benchmark. 9 The applicants now rely on evidence of certain deficiencies in the material produced, and on further evidence from Professor Rubinfeld to support the widening of the period. 10 The essence of Professor Rubinfeld's further evidence is that the material provided to date does not have sufficient coverage or detail to enable him to conduct a reliable analysis. There was some criticism by counsel for the Amcor and Visy respondents of the nature of Professor Rubinfeld's evidence. However, I am satisfied that it does demonstrate that the discovery of data for a wider period than that ordered by Tamberlin J is "necessary in the interests of a fair trial": Trade Practices Commission v CC (New South Wales) Pty Limited (No 4) (1995) 58 FCR 426 at 436 per Lindgren J. 11 The "clean period" data which is sought places some emphasis on the post-cartel period. This is because of the inadequacy of the pre-cartel data discovered to date. Although Professor Rubinfeld accepts that it is preferable to analyse data for the period prior to the formation of the cartel, he says that in the absence of such data, post-cartel material takes on an even greater importance. 12 Although some post-cartel material, namely from November 2004 to May 2006 has already been produced, Professor Rubinfeld says that this is "highly unlikely" to be sufficient. I accept this evidence and the reasons given for it, including the difficulties associated with the lingering effects of cartel behaviour. 13 I reject the suggestion of the respondents as to the lack of utility of the evidence. Nor do I consider that in litigation of this magnitude, the costs associated with the exercise are so burdensome as to warrant denial of additional discovery. 14 The only real question is, as Tamberlin J observed nearly two years ago, to determine the suitable period before and after the cartel behaviour. In doing so, I take into account the apparent inadequacy of the material going back to 1998 and the need to set a period after the existence of the cartel was made public, to take into account the possible lingering effects on competition. 15 The Court maintains control over its own interlocutory orders, particularly those made for the management of the proceedings. I am satisfied that I ought to make orders for discovery of the documents covering categories 1 to 6 in the Amended Notice of Motion. I do not consider it is appropriate to limit the period to 30 June 2007 as was submitted on behalf of the respondents. To do so would fail to take into account the date on which the existence of the cartel is said to have been exposed, the potential lingering effects of the cartel on the market, and the inadequacy of pre-cartel data. 16 Categories 7 and 8 seek, as I said earlier, documents filed in the Cadbury proceeding. These documents are sought in relation to the issues of liability and damages. 17 As to liability, the Amcor and Visy respondents do not admit either the existence of the cartel or that it was put into effect. 18 Nevertheless, I do not consider that the documents identified in categories 7 and 8 are "necessary" within the terms of O 15 r 15 or Practice Note 14. Nor are they "directly relevant" to the proceeding: Australian Competition and Consumer Commission v Advanced Medical Institute Pty Ltd [2005] FCA 366 at [21] – [23] per Lindgren J. 19 The issues in this proceeding are different from those in the Cadbury proceeding. Such overlap as does exist is not sufficient to warrant the orders. 20 To the extent that the documents are sought on the issue of damages, I do not consider they are relevant or necessary. As was submitted by the respondents, any relevant documents are already covered by existing orders so that what is really sought is nothing more than the right to "fish" for further material. 21 One further order was sought on the motion. It was for leave to amend the existing Further Amended Statement of Claim. The only contest between the parties was as to the proposed [89C]. 22 In my view, that paragraph pleads the allegations at such a level of generality that the respondents ought not to have to plead to it. The deficiency could be cured by particulars but the applicants should be in a position to do so either now, or following the further discovery I will order. I therefore propose to refuse leave in respect of [89C]. 23 I direct the parties to bring in short minutes to reflect my reasons. I certify that the preceding twenty-three (23) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Jacobson. Associate: Dated: 8 September 2009 Counsel for the Applicant: Mr A.J. Bannon SC with Mr I.S. Wylie Solicitor for the Applicant: Maurice Blackburn Pty Limited Counsel for the First, Second and Third Respondents: Mr M. Darke Solicitor for the First, Second and Third Respondents: Allens Arthur Robinson Counsel for the Fourth and Fifth Respondents: Mr M.H. O'Bryan Solicitor for the Fourth and Fifth Respondents: Arnold Bloch Leibler Date of Hearing: 2 September 2009 Date of Judgment: 8 September 2009