Case: Cadbury Schweppes Pty Limited v Amcor Limited [2008] FCA 88
Outcome: referred to
These reasons relate to orders sought in a Notice of Motion filed by the applicant ("Jarra Creek") on 6 February 2008 seeking leave for the parties and their respective solicitors and counsel to disclose and use for any purpose related to this proceeding any documents and/or information created, disclosed or obtained in two other proceedings before the Court concerning related issues, namely, Australian Competition and Consumer Commission v Visy Industries Holdings Pty Limited (VID 1650 of 2005) ("the ACCC proceeding") and Cadbury Schweppes Pty Limited v Amcor Limited (VID 1377 of 2006) ("the Cadbury proceeding"). Other orders relating to the form of Opt Out Notice proposed by Jarra Creek and general directions were made on the day of the hearing. In addition, the hearing of questions of privilege and confidentiality was stood over until 7 April 2008. 2 The motion is opposed by the fourth to sixth respondents ("the Visy parties") and the Australian Competition and Consumer Commission ("ACCC"), which is not a party to this proceeding but has made submissions on the basis that its interests are affected by the orders sought. The first to third respondents ("the Amcor parties") do not object to the orders sought, nor does Cadbury Schweppes Pty Limited, which is not a party to this proceeding. 3 The ACCC's position (and the reason it claims its interests are affected by the orders sought) is that to allow disclosure of proofs of evidence and other materials served on the Visy parties in the ACCC proceeding is premature because the implied undertaking which applies to those proofs of evidence are presently the subject of a reserved decision by Gordon J in the Cadbury proceeding. The implied undertaking, which arises from the production of documents under compulsion of a court order, is that the documents may not be used for purposes other than use in the proceeding in which they were required to be disclosed. 4 On 19 February 2008, Gordon J published reasons for decision (see Cadbury Schweppes Pty Limited v Amcor Limited [2008] FCA 88) in which her Honour invited further submissions from the Amcor parties, the Visy parties and the ACCC as to whether the Visy parties are bound by an implied undertaking given in the ACCC proceeding "not to produce the 111 documents enumerated in the Lists of Witnesses Statements filed and served by Visy dated 16 November 2007 and 21 November 2007". These submissions have been filed with the Court, but to date there has been no ruling by her Honour. 5 In these circumstances, I consider that I should await the ruling of her Honour in relation to the documents referred to by the ACCC rather than make a ruling without the benefit of her Honour's reasons in circumstances where there are common legal and factual issues. 6 In relation to the other documents which are not the subject of submissions by the ACCC, there are two questions for decision: &#8226; whether previous orders for discovery made in this proceeding have the effect of overriding the implied undertaking attaching to the documents so that the documents in question must be discovered by the Visy parties; and &#8226; whether the Court should grant leave to disclose the documents notwithstanding any implied undertaking.