Australian Competition and Consumer Commission v Allphones Retail Pty Limited (No 3) [2009] FCA 1075

FEDERAL COURT OF AUSTRALIA

Australian Competition and Consumer Commission v Allphones Retail Pty Limited (No 3) [2009] FCA 1075

EVIDENCE – whether the Court should exercise its discretion pursuant to s 192A of the Evidence Act 1995 (Cth) to rule on the admissibility of evidence in advance of that evidence being adduced – ruling made PRACTICE AND PROCEDURE – whether the Australian Competition and Consumer Commission should be released from the implied undertaking attributed to it in respect of documents produced using the compulsory processes of the Court – three sets of proceedings to be heard together – leave granted to use documents in all three actions PRIVILEGE – whether investigative accountant's reports and associated calculations prepared for settlement negotiations and a mediation are protected from being adduced in evidence by s 131(1) of the Evidence Act 1995 (Cth) – meaning of expression "in connection with" in s 131(1) – documents prepared for the purposes of settlement are protected – documents ruled inadmissible Evidence Act 1995 (Cth), ss 69, 76, 79, 131, 192A Trade Practices Act 1974 (Cth), ss 51AC, 51AD, 52, 80, 87(1B), 155AAA

Allphones Retail Pty Limited v Australian Competition and Consumer Commission [2009] FCA 980 cited Hoy Mobile Pty Ltd v Allphones Retail Pty Ltd (No 2) (2008) ATPR 42-240 cited Australian Competition and Consumer Commission v Allphones Retail Pty Ltd (No 2) (2009) 253 ALR 324, [2009] ATPR 42-274 cited Bailey v Beagle Management Pty Limited [2001] FCA 185 cited Brown v Federal Commissioner of Taxation (2002) 119 FCR 269 cited CJ Redman Constructions Pty Ltd v Tarnap Pty Ltd [2006] NSWSC 173 followed Commissioner of Australian Federal Police v Propend Finance Pty Ltd (1997) 188 CLR 501 cited and distinguished Field v Commissioner for Railways for NSW (1957) 99 CLR 285 followed Harman v Home Department State Secretary [1983] 1 AC 280 cited Hearne v Street (2008) 235 CLR 125 cited Korean Air Lines v Australian Competition and Consumer Commission (No 3) (2008) 247 ALR 781 followed Rabin v Mendoza & Co [1954] 1 All ER 247, [1954] 1 WLR 271 cited Ringrow Pty Ltd v BP Australia Ltd (2003) 130 FCR 569 cited