FEDERAL COURT OF AUSTRALIA Australian Competition and Consumer Commission v MSY Technology Pty Ltd [2011] FCA 204 Citation: Australian Competition and Consumer Commission v MSY Technology Pty Ltd [2011] FCA 204 Parties: AUSTRALIAN COMPETITION AND CONSUMER COMMISSION v MSY TECHNOLOGY PTY LTD ACN 093 529 401, MSY TECHNOLOGY (NSW) PTY LTD ACN 102 819 821, MSY TECHNOLOGY (QLD) PTY LTD ACN 112 112 437, MSY TECHNOLOGY (SA) PTY LTD ACN 123 607 198 and MSY TECHNOLOGY (WA) PTY LTD ACN 132 230 409 File number: NSD 1472 of 2010 Judge: PERRAM J Date of judgment: 3 March 2011 Catchwords: PRACTICE AND PROCEDURE – Suppression Order – application for suppression of financial figures – principles for considering grant of suppression order – whether order necessary to prevent prejudice to the administration of justice – Federal Court of Australia Act 1976 (Cth) s 50 Legislation: Federal Court of Australia Act 1976 (Cth) s 50 Trade Practices Act 1974 (Cth) Cases cited: Hogan v Australian Crime Commission (2010) 240 CLR 651 cited Hogan v Australian Crime Commission (2009) 177 FCR 205 cited Date of hearing: 3 March 2011 Date of last submissions: 3 March 2011 Place: Sydney Division: GENERAL DIVISION Category: Catchwords Number of paragraphs: 6 Counsel for the Applicant: Mr D Thomas Solicitor for the Applicant: Australian Government Solicitor Counsel for the Respondents: Ms J Beaumont Solicitor for the Respondents: Spranklin McCartney Lawyers IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY GENERAL DIVISION NSD 1472 of 2010 BETWEEN: AUSTRALIAN COMPETITION AND CONSUMER COMMISSION Applicant AND: MSY TECHNOLOGY PTY LTD ACN 093 529 401 First Respondent MSY TECHNOLOGY (NSW) PTY LTD ACN 102 819 821 Second Respondent MSY TECHNOLOGY (QLD) PTY LTD ACN 112 112 437 Third Respondent MSY TECHNOLOGY (SA) PTY LTD ACN 123 607 198 Fourth Respondent MSY TECHNOLOGY (WA) PTY LTD ACN 132 230 409 Fifth Respondent JUDGE: PERRAM J DATE OF ORDER: 3 MARCH 2011 WHERE MADE: SYDNEY THE COURT ORDERS THAT: 1. Pursuant to s 50 of the Federal Court of Australia Act, the 2009-2010 financial figures contained in Confidential Annexure A to the document marked Statement of Agreed Facts filed on 22 February 2011 are to be kept confidential and not disclosed or published to any person without leave of the Court for a period of 21 months from the date of 3 March 2011. 2. Order (1) does not affect the existing access of the parties to this proceeding. 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 Federal Law Search on the Court's website. IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY GENERAL DIVISION NSD 1472 of 2010 BETWEEN: AUSTRALIAN COMPETITION AND CONSUMER COMMISSION Applicant AND: MSY TECHNOLOGY PTY LTD ACN 093 529 401 First Respondent MSY TECHNOLOGY (NSW) PTY LTD ACN 102 819 821 Second Respondent MSY TECHNOLOGY (QLD) PTY LTD ACN 112 112 437 Third Respondent MSY TECHNOLOGY (SA) PTY LTD ACN 123 607 198 Fourth Respondent MSY TECHNOLOGY (WA) PTY LTD ACN 132 230 409 Fifth Respondent JUDGE: PERRAM J DATE: 3 MARCH 2011 PLACE: SYDNEY REASONS FOR JUDGMENT 1 The first to fifth respondents apply for orders, pursuant to s 50 of the Federal Court of Australia Act 1976 (Cth), in relation to a page annexed to the proposed Statement of Agreed Facts which will be tendered by the Commission on the present hearing. The proceedings are listed today for hearing on the application of the Commission for the making of declarations, the ordering of injunctions, corrective advertising, compliance programs and the imposition of civil penalties for alleged breaches of the Trade Practices Act 1974 (Cth). As part of the material placed before me, the Commission and each of the respondents have agreed upon the turnover and profit figures for each of the respondents in the financial years 2008-2009 and 2009-2010. 2 The first to fifth respondents seek an order pursuant to s 50 that would have the effect of preventing the publication of the 2009-2010 financial figures, but such prohibition on publication would only be one which lasted for a period of 21 months. The power to make an order pursuant to s 50 has been considered by the High Court recently in Hogan v Australian Crime Commission (2010) 240 CLR 651. In that case, the Court stressed a number of propositions. The first, at [31], was in these terms: It is insufficient that the making or continuation of an order under s 50 appears to the Federal Court to be convenient, reasonable or sensible, or to serve some notion of the public interest, still less that, as the result of some "balancing exercise", the order appears to have one or more of those characteristics. 3 The Court went on to underscore that the statutory language directed attention to the interests of justice, and it was to that that a Court, making an order under the provision, should address itself. The Court (at [38]-[39]) also adopted, with apparent approval, a passage in the reasons of the Full Court below of Jessup and Moore JJ in Hogan v Australian Crime Commission (2009) 177 FCR 205 at [42] where their Honours said: There are, of course, all manner of situations in which a claim to keep a particular document confidential will be recognised by a Court. For example, equity recognises that the information contained in certain documents is, of its nature and by reason of the circumstances of its communication, subject to a duty of confidence. So too will the law protect trade secrets in well-recognised situations. And it is commonly the case that the court will protect from the public eye personal or commercial information the value of which as an asset would be seriously compromised by disclosure. In this latter category, the source of the jurisdiction (in this court) to provide such protection is s 50 itself. That is to say, the question will always be: is an order necessary to prevent prejudice to the administration of justice? 4 On the application for the order pursuant to s 50 the first to fifth respondents called a Mr Toh who was the respondents' general manager. Before me he gave evidence that if the turnover and profit figures were to be released into the public domain then there were likely to be two effects. The first was that it would provide information in relation to the financial position of the group of companies to its creditors, and the provision of that information might well have an effect upon the credit limits which would be available to the first to fifth respondents. It was a downstream possibility that this would then have an effect upon the ability of the first to fifth respondents to purchase stock, or at least on the terms upon which the first to fifth respondents might purchase stock. 5 The second matter was that the provision of the profit and turnover figures would more effectively equip the first to fifth respondents' competitors with knowledge of the first to fifth respondents' capacity to engage in a price war. Put another way, what he was saying was that it would arm the first to fifth respondents' competitors with advance knowledge of just how far the first to fifth respondents could go in their pricing efforts. I accept Mr Toh's evidence, and I accept that that brings it within the category of information where it could be said that its disclosure would seriously threaten, or pose the potential for a serious threat to, the commercial value of the business conducted by the first to fifth respondents. 6 In those circumstances, I propose to make the orders. The orders I make are: 1. Pursuant to s 50 of the Federal Court of Australia Act, the 2009-2010 financial figures contained in Confidential Annexure A to the document marked Statement of Agreed Facts filed on 22 February 2011 are to be kept confidential and not disclosed or published to any person without leave of the Court for a period of 21 months from the date of 3 March 2011. 2. Order (1) does not affect the existing access of the parties to this proceeding. I certify that the preceding six (6) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Perram. Associate: Dated: 3 March 2011