FEDERAL COURT OF AUSTRALIA De Brett Seafood Pty Ltd v Qantas Airways Limited [2011] FCA 440 Citation: De Brett Seafood Pty Ltd v Qantas Airways Limited [2011] FCA 440 Parties: DE BRETT SEAFOOD PTY LTD v QANTAS AIRWAYS LIMITED (ACN 009 661 901), DEUTSCHE LUFTHANSA AKTIENGESELLSCHAFT (ARBN 495232), SINGAPORE AIRLINES LTD (ARBN 1056195), SINGAPORE AIRLINES CARGO PTY LTD (ARBN 95934857), CATHAY PACIFIC AIRWAYS LIMITED (ARBN 479514), AIR NEW ZEALAND LT (ARBN 000 312 685), AIR NEW ZEALAND (AUSTRALIA) PTY LTD (ACN 084 974 569), JAPAN AIRLINES INTERNATIONAL CO LIMITED (ARBN 564358) and BRITISH AIRWAYS PLC (ARBN 2747597) File number: 12 of 2007 Judge: TRACEY J Date of judgment: 27 April 2011 Legislation: Trade Practices Act 1974 (Cth) s 155 Cases cited: Cadbury Schweppes Proprietary Limited v Amcor Limited (2008) 246 ALR 137 cited Date of hearing: 27 April 2011 Place: Melbourne Division: GENERAL DIVISION Category: No catchwords Number of paragraphs: 18 Counsel for the Applicant: Mr M Pesman Solicitor for the Applicant: Maurice Blackburn Counsel for the First Respondent: Mr C J Connor Solicitor for the First Respondent: Johnson, Winter & Slattery Counsel for the Sixth and Seventh Respondents: Mr R Yezerski Counsel for the Sixth and Seventh Respondents: Corrs Chambers Westgarth IN THE FEDERAL COURT OF AUSTRALIA VICTORIA DISTRICT REGISTRY GENERAL DIVISION 12 of 2007 BETWEEN: DE BRETT SEAFOOD PTY LTD Applicant AND: QANTAS AIRWAYS LIMITED (ACN 009 661 901) First Respondent DEUTSCHE LUFTHANSA AKTIENGESELLSCHAFT (ARBN 495232) Second Respondent SINGAPORE AIRLINES LTD (ARBN 1056195) Third Respondent SINGAPORE AIRLINES CARGO PTY LTD (ARBN 95934857) Fourth Respondent CATHAY PACIFIC AIRWAYS LIMITED (ARBN 479514) Fifth Respondent AIR NEW ZEALAND LT (ARBN 000 312 685) Sixth Respondent AIR NEW ZEALAND (AUSTRALIA) PTY LTD (ACN 084 974 569) Seventh Respondent JAPAN AIRLINES INTERNATIONAL CO LIMITED (ARBN 564358) Eighth Respondent BRITISH AIRWAYS PLC (ARBN 2747597) Ninth Respondent JUDGE: TRACEY J DATE OF ORDER: 27 APRIL 2011 WHERE MADE: MELBOURNE THE COURT ORDERS THAT: 1. On or before 4 May 2011 the Applicant and the First, Sixth and Seventh Respondents file and serve minutes of orders providing for inspection of the documents produced by the Australian Competition and Consumer Commission in answer to the subpoena directed to it and dated 1 April 2011, consistently with my reasons for decision delivered on 27 April 2011. 2. Liberty to apply. 3. Costs reserved. 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 VICTORIA DISTRICT REGISTRY GENERAL DIVISION 12 of 2007 BETWEEN: DE BRETT SEAFOOD PTY LTD Applicant AND: QANTAS AIRWAYS LIMITED (ACN 009 661 901) First Respondent DEUTSCHE LUFTHANSA AKTIENGESELLSCHAFT (ARBN 495232) Second Respondent SINGAPORE AIRLINES LTD (ARBN 1056195) Third Respondent SINGAPORE AIRLINES CARGO PTY LTD (ARBN 95934857) Fourth Respondent CATHAY PACIFIC AIRWAYS LIMITED (ARBN 479514) Fifth Respondent AIR NEW ZEALAND LT (ARBN 000 312 685) Sixth Respondent AIR NEW ZEALAND (AUSTRALIA) PTY LTD (ACN 084 974 569) Seventh Respondent JAPAN AIRLINES INTERNATIONAL CO LIMITED (ARBN 564358) Eighth Respondent BRITISH AIRWAYS PLC (ARBN 2747597) Ninth Respondent JUDGE: TRACEY J DATE: 27 APRIL 2011 PLACE: MELBOURNE REASONS FOR JUDGMENT 1 By subpoena, dated 1 April 2011, and directed to the proper officer of the Australian Competition and Consumer Commission ("the ACCC"), the Applicant, De Brett Seafood Proprietary Limited, has sought the production of documents, described in the Schedule as being the computer disk containing documents which constitute the first tranche of the ACCC's conduct case in-chief, filed and served in accordance with orders made by Jacobson J on 19 November 2010, in each of four proceedings. 2 They are, respectively, proceedings brought by the ACCC against Air New Zealand Limited, Cathay Pacific Airways Limited, Japan Airways International Company Limited, and Singapore Airlines Cargo Pty Limited. The subpoena was returnable before a Registrar of this Court on 27 April 2011. 3 The Registrar was advised by counsel appearing for the Sixth and Seventh Respondents, Air New Zealand Limited and Air New Zealand Australia Proprietary Limited ("Air New Zealand"), that objection was taken to the making of orders for inspection of the documents produced by the ACCC. 4 The objections were advanced on three bases. The first was a policy argument which asserted that the granting of access to such material would allow private litigants to take advantage of the investigative product which the ACCC had obtained through the exercise of coercive powers conferred on it by s 155 of the Trade Practices Act 1974 (Cth) ("the TPA Act"). 5 The second argument, advanced in opposition to the making of orders for inspection, was that the material produced by Air New Zealand, in response to the ACCC's demand, was regarded by the airline as confidential. 6 The third argument contended that the documents were irrelevant and that, accordingly, they should not be made available for inspection by the Applicant. 7 None of the other airline Respondents, whose documents have been produced pursuant to the subpoena, have objected to inspection orders being made. 8 I understand the position to be that the material has been assembled on two computer disks. Those disks contain all of the material, falling within the terms of the schedule to the subpoena, that has been produced by each of the four airlines. It is, therefore, possible, as I understand it, to discriminate between the material supplied by Air New Zealand and that supplied by the other airlines. 9 I have considered Air New Zealand's objections to the making of the inspection orders sought by the Applicant and I am not persuaded that they justify the refusal which is sought. 10 As to the first argument, it is true that the material, to which objection is directed, had been obtained by the ACCC from Air New Zealand by the coercive process provided for in the TP Act. It is, however, to be borne in mind that the TP Act has very strong public interest objectives, and as Gordon J has observed in Cadbury Schweppes Proprietary Limited v Amcor Limited (2008) 246 ALR 137 at 146: "[The] public interest in allowing private litigants to rely on the output of regulatory investigations, which are undertaken by public regulators at least in part on their behalf [is compelling]." 11 It may well be that the Applicant's reliance on the coercive process of this Court to obtain the material from the ACCC means that it is spared a good deal of work in assembling material in relation to the case it seeks to put in the class action which it brings. That is not, however, a reason for refusing inspection. Indeed, if that work was required and ultimately the applicant is successful in the proceeding, the resources devoted to the duplication of the inquiries would almost certainly lead to higher costs orders against the Respondents than might otherwise have been made. 12 As to the second ground, the Applicant acknowledges that Air New Zealand, and indeed the other airline Respondents who have produced material that is subject to the subpoena, may wish, for proper reasons, to maintain and retain confidentiality in the material. 13 To this end a regime has been proposed under which production would be restricted to certain persons who it may properly be accepted would honour the obligation to retain such material in confidence. The terms of that regime have, I have been advised, been the subject of correspondence between solicitors and a summary of orders designed to enforce such a regime was handed to the Court this afternoon. Counsel for Air New Zealand and the first respondent, Qantas Airways Limited, who are present in Court this afternoon, have not had an opportunity to obtain instructions in relation to the adequacy of this regime. 14 Nonetheless, I consider that there is no reason why such a regime cannot be agreed on by the relevant parties such as to ensure that the commercial and other interests of the airline Respondents are adequately protected should an order for inspection be made. 15 The third argument advanced in support of a refusal of an inspection order suggests that any material produced by the ACCC in answer to the subpoena would be of no relevance to the proceeding. 16 This was an issue pursued before me in the course of argument on 1 April 2011 in which objection was taken to the issuing of the subpoenas. On that occasion I rejected the argument. I have not, of course, had access to the material that has been produced by the ACCC and I am not in a position to form a judgment at this point as to whether the contents of any particular document or part thereof is relevant or irrelevant in the proceeding. 17 If an application is made to rely on any such material in the course of the hearing, then will be the occasion for me to make an informed judgment on any argument based on alleged irrelevance of the material. In the meantime the material will retain its confidential status. 18 Given the centrality of the need to maintain the confidentiality of the documents in the course of the inspection exercise, I propose to do no more at the moment than to indicate that I reject the arguments advanced by Air New Zealand against the making of the customary orders for inspection of the material produced by way of the subpoenas directed to the ACCC, and to direct the parties to bring in minutes of orders for my consideration that will, consistently with the reasons that I have just given, ensure that inspection is provided, subject to what I hope will be a mutually agreed confidentiality regime. I will reserve liberty to apply lest there be any difficulty encountered by the parties in agreeing on such a regime. I certify that the preceding eighteen (18) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Tracey. Associate: Dated: 27 April 2011