Case: Australian Competition and Consumer Commission v Allphones Retail Pty Ltd (No 2) (2009) 253 ALR 324
Outcome: related
in November 2008, in proceedings NSD 1567 of 2008, the ACCC made a further application for interim injunctive relief. The ACCC brought this second application for interlocutory relief in order to address further concerns which it had in relation to the conduct of Allphones in connection with its ongoing negotiations with its franchisees. On 19 January 2009, I delivered judgment in respect of that application ( Australian Competition and Consumer Commission v Allphones Retail Pty Ltd (No 2) (2009) 253 ALR 324). This second interlocutory application is not presently relevant. At 8.53 am on 9 October 2008, shortly before proceedings NSD 1567 of 2008 were called on before me on that day, the solicitors for the ACCC sent by way of email to my Associate and, at the same time, to the solicitor for Allphones, a document styled Applicant's Submissions in Support of Motion for Interlocutory Injunctions dated 9 October 2008 ( the ACCC's Written Submission ). Plainly, this document was intended to be referred to and relied upon by the ACCC at the interlocutory hearing in those proceedings fixed for that day. At the time when the ACCC's Written Submission was sent, the ACCC's application for interlocutory relief had not been resolved and the ACCC was entitled to assume that that application would proceed at 10.15 am as scheduled. Because the ACCC's claim for interlocutory relief was ultimately resolved on 9 October 2008 on a basis satisfactory to the parties and to the Court, no reference was made to the ACCC's Written Submission in open Court on 9 October 2008 nor was it relied upon by the ACCC on that occasion. I had not previously directed that a written submission be lodged. I did not grant leave to the ACCC to file in Court the ACCC's Written Submission on that occasion, nor was I asked to do so. However, on the same day, the ACCC's Written Submission was marked by my Associate as having been filed in Chambers so that a formal record of the date when the document was received would be made in the Court file. It is the practice of the Court to record the receipt by the Court of a written submission by noting that such a document has been "filed". A written submission may be filed over the counter at the Registry, in Court (with the leave of the presiding judge) or in Chambers. The ACCC's Written Submission in the present case was marked as "Filed in Chambers" on 9 October 2008. No prior leave had been granted to the ACCC to forward that document to my Chambers. At the hearing of these proceedings, Allphones submitted that, in pars 6, 13, 14, 15 and 37 of the ACCC's Written Submission, the authors of the document set out certain information which was contained in, or derived from, several monthly management accounts prepared by Allphones in respect of the period from 1 March 2004 to 6 December 2007 ( the Management Accounts ). This submission is correct, at least in respect of some of the paragraphs referred to. Allphones also contended that the Management Accounts and certain other workbooks are confidential internal business records of Allphones and that the information contained in them is confidential to Allphones. Allphones contended that I should find that the only way in which officials of the ACCC might have gained access to this information was by inspecting documents produced to the ACCC by Allphones under compulsion pursuant to a notice served upon Allphones by the ACCC on or about 6 December 2007 pursuant to the provisions of s 155 of the Act ( the s 155 Notice ). On the evidence before me, I am prepared to make that finding. In the ACCC's Written Submission, Counsel for the ACCC made reference to several paragraphs in an affidavit filed in support of the ACCC's initial interlocutory application and to several documents exhibited to that affidavit. Some of those paragraphs and documents contain material which is of a financial character and which has plainly been derived from financial material furnished to the ACCC by Allphones in response to the s 155 Notice.