Case: McMullin v ICI Australia Operations Pty Ltd [1996] FCA 991
Outcome: considered
Nor does it necessarily follow that in every representative proceeding the determination of questions concerning damage will be deferred until after liability has been determined. Of necessity, the Court has adopted a flexible approach to complex representative litigation. For example, in McMullin v ICI Australia Operations Pty Ltd [1996] FCA 991 , remoteness of loss and some questions pertaining to damages were determined as common questions. Accordingly, in the present case, even if the nature of the market resulted in only issues of causation and matters of damage being raised, it does not always mean that it is appropriate for common questions and discovery on these matters to be deferred. The reasons of Wilcox J in McMullin [1996] FCA 991 exemplify the particular complexity of representative actions and the need for flexible effective case management. 20 In my view, the material sought by way of discovery as to market structure may have a bearing on the question of liability, and production should not be deferred. Even if this conclusion is incorrect, it still does not follow that questions of market structure should be deferred until after liability questions have been determined. On closer examination it may be desirable as a matter of case management in this case to ensure that all common questions are resolved together. 21 Both Visy and Amcor submit that documents as to PPP are irrelevant because this case turns on behaviour in relation to CFP . Jarra Creek contends that the documents relating to PPP are relevant because, as is pleaded in paragraph [9B] of the Amended Statement of Claim, PPP is " the major physical input, by weight and cost, in CFP " and the major producers of PPP in Australia were related to or business units within Visy or Amcor, thereby having had a significant impact on the costs structure of CFP. 22 Paragraph [9B(d)(iii)] of the Amended Statement of Claim links PPP with CFP in relation to allegations concerning barriers to entry to the CFP market. This linkage is reinforced in paragraphs [12], [18(b)], [54(a)] and [100] of the Amended Statement of Claim. Paragraph [9B] alleges that Visy and Amcor not only have a major position with respect to CFP production and supply, but also with respect to the principal cost input into that product, namely PPP. It could be reasonably argued that this fact, if established, gives Amcor and Visy greater control of the input costs of CFP. On the face of the Amended Statement of Claim, documents concerning PPP are therefore relevant. In addition, it should be noted that Professor Rubinfeld referred to PPP as an item which would assist in deciding whether any CFP price rise occurred due to input cost variations or due to the alleged price fixing. 23 For these reasons, I am satisfied that documents relating to PPP as set out in the categories of discovery sought by Jarra Creek are relevant and should be produced subject to a variation in relation to the relevant period referred to in paragraph [14] above. 24 Visy objects to paragraph [9.2] of Jarra Creek's proposed categories to the extent that it seeks documents by reference to break-downs based on production facilities, regions, customer or industry segments and product categories. Visy contends that such detailed information has no relevance to issues in the proceedings. It also objects for similar reasons to category 9.2(c), which concerns financial analyses also involving detailed break-downs, and to category 9.2(d) on the ground that the reference to " indicator reports " is meaningless. 25 On the material presently before me I am not persuaded that the production of documents by reference to the detailed break-downs sought is appropriate or necessary at this stage. Neither am I persuaded that the financial analyses requested or the break-downs sought in relation to those analyses are appropriate for discovery. Furthermore, the expression " indicator reports " does not appear to describe or refer to any relevant documents. Accordingly, I will not require discovery of the break-down documents sought in category 9.2(c) and (d). In relation to the relevant period, I note in relation to these documents that Visy does not object to the period commencing on 1 January 1998 but says that it ought not to extend to 2006. For reasons given earlier, I consider that the appropriate period in the present case is between 1 January 1998 and mid-2006. 26 In summary, I consider that the relevant period is between 1 January 1998 and mid-2006. I do not think it ought to extend back to 1995. I am persuaded that documents relating to PPP may be relevant and that such documents ought to be produced. I do not consider it appropriate to defer questions relating to market structure on the basis that that issue only concerns damages and causation. I am of the view that the information sought relates to liability, and that, in any event, issues as to common questions concerning damages and causation ought be the subject of discovery at the same time. I also consider that category 9.2 proposed by Jarra Creek ought to be modified in the manner indicated above. 27 I direct the parties to bring in Short Minutes to give effect to these orders and I propose to reserve the question of costs until this matter has been finally determined. I certify that the preceding twenty-seven (27) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Tamberlin. Associate: Dated: 12 October 2007 Counsel for the Applicant: Mr I Wylie Solicitor for the Applicant: Maurice Blackburn Cashman Counsel for the Respondents/Cross-Claimants: Mr P Solomon Solicitor for the Respondents/Cross-Claimants: Allens Arthur Robinson Counsel for the Cross-Respondents: Mr M O'Bryan Solicitor for the Cross-Respondents: Arnold Bloch Leibler Date of Hearing: 2 October 2007 Date of Judgment: 12 October 2007 AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback URL: http://www.austlii.edu.au/au/cases/cth/FCA/2007/1559.html