Cadbury Schweppes Pty Ltd v Amcor Limited (No 3)

• Jurisdiction: Australia Federal only
• Judgment Date: 06 November 2008
• Neutral Citation: [2008] FCA 1668
• Court: Federal Court

FEDERAL COURT OF AUSTRALIA

Cadbury Schweppes Pty Ltd v Amcor Limited (No 3) [2008] FCA 1668

PRIVILEGE – legal professional privilege – litigation privilege – whether confidentiality is required in order for litigation privilege to attach to a communication with a third-party witness – whether dominant purpose is to be assessed from standpoint of party causing the communication to be created

PRACTICE AND PROCEDURE –whether findings of fact in one proceeding are admissible as evidence in a subsequent proceeding – doctrine of stare decisis – whether previous decision compels similar or same result where similar or same facts are found and applicable legal principles have not changed – ratio decidendi – whether ratio of a case included all rulings on all issues necessary to the ultimate decision

COSTS – indemnity costs – subpoenas – whether respondent to a subpoena is entitled to indemnity costs in relation to successful defence of motion to compel subpoenaed document based on legal professional privilege claim

Evidence Act 1995 (Cth) s 91

Australian Competition and Consumer Commission v Visy Industries Holdings Pty Ltd (No 2) (2007) 239 ALR 762 followed

Bristol-Myers Squibb Company v FH Faulding & Co Limited (2000) 97 FCR 524 cited

Cadbury Schweppes Pty Ltd v Amcor Ltd (2008) 246 ALR 137 applied

National Mutual Life Association of Australasia Limited v Grosvenor Hill (Qld) (2001) 183 ALR 700 cited

Pratt Holdings Pty Ltd v Commissioner of Taxation (2004) 136 FCR 357 applied

Ryan v The Queen (2001) 206 CLR 267 applied

Re Tyler; ex parte Foley (1994) 181 CLR 18 cited

Visy Industries Holdings Pty Ltd v ACCC (2007) 161 FCR 122 followed

CADBURY SCHWEPPES PTY LTD (ACN 004 551 473) v AMCOR LIMITED (ABN 62 000 017 372) and AMCOR PACKAGING (AUSTRALIA) PTY LTD (ABN 55 004 275 165); AMCOR LIMITED (ABN 62 000 017 372) and AMCOR PACKAGING (AUSTRALIA) PTY LTD (ABN 55 004 275 165); VISY BOARD PTY LTD (ACN 005 787 913), VISY INDUSTRIES HOLDINGS PTY LTD (ACN 005 787 968) and VISY INDUSTRIES AUSTRALIA PTY LTD (ACN 004 337 615)

VID 1377 of 2006

GORDON J

6 NOVEMBER 2008

MELBOURNE

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY	VID 1377 of 2006

BETWEEN:	CADBURY SCHWEPPES PTY LTD (ACN 004 551 473) Applicant AMCOR LIMITED (ABN 62 000 017 372) First Cross-Claimant AMCOR PACKAGING (AUSTRALIA) PTY LTD (ABN 55 004 275 165) Second Cross-Claimant
AND:	AMCOR LIMITED (ABN 62 000 017 372) First Respondent AMCOR PACKAGING (AUSTRALIA) PTY LTD (ABN 55 004 275 165) Second Respondent VISY BOARD PTY LTD (ACN 005 787 913) First Cross-Respondent VISY INDUSTRIES HOLDINGS PTY LTD (ACN 005 787 968) Second Cross-Respondent VISY INDUSTRIES AUSTRALIA PTY LTD (ACN 004 337 615) Third Cross-Respondent

JUDGE:	GORDON J
DATE OF ORDER:	6 NOVEMBER 2008
WHERE MADE:	MELBOURNE

THE COURT ORDERS THAT:

1. The applicant’s notice of motion dated 3 October 2008 be dismissed.

2. The applicant pay the ACCC’s costs of and incidental to the notice of motion on a party-party basis, such costs to be taxed in default of agreement.

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 eSearch on the Court’s website.

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY	VID 1377 of 2006

BETWEEN:	CADBURY SCHWEPPES PTY LTD (ACN 004 551 473) Applicant AMCOR LIMITED (ABN 62 000 017 372) First Cross-Claimant AMCOR PACKAGING (AUSTRALIA) PTY LTD (ABN 55 004 275 165) Second Cross-Claimant
AND:	AMCOR LIMITED (ABN 62 000 017 372) First Respondent AMCOR PACKAGING (AUSTRALIA) PTY LTD (ABN 55 004 275 165) Second Respondent VISY BOARD PTY LTD (ACN 005 787 913) First Cross-Respondent VISY INDUSTRIES HOLDINGS PTY LTD (ACN 005 787 968) Second Cross-Respondent VISY INDUSTRIES AUSTRALIA PTY LTD (ACN 004 337 615) Third Cross-Respondent

JUDGE:	GORDON J
DATE:	6 NOVEMBER 2008
PLACE:	MELBOURNE

REASONS FOR JUDGMENT

1 This is another in a series of legal professional privilege disputes that have arisen between the applicant, Cadbury Schweppes Pty Ltd (“Cadbury”), and the Australian Competition and Consumer Commission (“the ACCC”) as Cadbury seeks to prosecute its civil claims against Amcor Limited and Amcor Packaging (Australia) Pty Ltd (collectively “Amcor”) for price-fixing. In the current notice of motion, Cadbury seeks orders that it have leave to uplift and inspect the transcript of an interview conducted by the ACCC on 17 December 2004 of Jim Hodgson, a former executive of Amcor (the “Hodgson Interview transcript”). The transcript was produced to the Court pursuant to a subpoena issued by Cadbury dated 9 September 2008. For the following reasons, Cadbury’s notice of motion will be dismissed with costs.

2 The ACCC opposes Cadbury being granted leave to uplift the transcript on the basis that the Hodgson Interview transcript is subject to a claim of legal professional privilege - specifically, litigation privilege - held by the ACCC. I previously considered at some length, in these proceedings, the legal principles and elements supporting a legal professional privilege claim: Cadbury Schweppes Pty Ltd v Amcor Ltd (2008) 246 ALR 137 (Cadbury I). In Cadbury I, I noted that it is settled that for a claim of litigation privilege to be upheld, the document or communication in question must have been made (1) in anticipation of (or during) litigation; and (2) for the dominant purpose of obtaining legal advice or evidence for the litigation: Cadbury I at [10]. I observed that there might be a third element of confidentiality, particularly with respect to communications with a third-party witness, but that that aspect of litigation privilege is still unsettled: Cadbury I at [10]. Due to a concession on the part of Cadbury, I did not need to consider the confidentiality question further in that decision.

3 In Australian Competition and Consumer Commission v Visy Industries Holdings Pty Ltd (No 2) (2007) 239 ALR 762 (Visy No 2), Heerey J was asked to consider claims of litigation privilege made with respect to 216 ACCC documents, including the Hodgson Interview transcript now at issue: Visy No 2 at [6]. His Honour found that litigation was reasonably anticipated as at 15 December 2004 - that is, prior to the Hodgson interview on 17 December 2004: Visy No 2 at [78]-[93]. Heerey J also found that the documents and communications in question were generated for the dominant purpose of amassing and assessing evidence to be used in contemplated civil penalty proceedings for price fixing against Visy: Visy No 2 at [97]-[101]. The Full Court of this Court upheld the judgment on appeal: Visy Industries Holdings Pty Ltd v ACCC (2007) 161 FCR 122.

4 A preliminary question involves the relevance, if any, of the findings of fact made by Heerey J in Visy No 2 to these proceedings, given that his Honour had before him among the 216 challenged documents the same Hodgson Interview transcript now sought here. It is trite that, as a matter of common and statutory law, findings of fact in one judgment are inadmissible in a subsequent proceeding as against a non-party to the prior proceeding except, where relevant, to ascertain the parties to those proceedings and the issues raised in that litigation as disclosed in the reasons: National Mutual Life Association of Australasia Limited v Grosvenor Hill (Qld) (2001) 183 ALR 700 at [48]; Evidence Act 1995 (Cth) s 91(1). However, the ACCC does not contend that I can or should simply rely on the facts found by Heerey J in deciding whether to uphold the ACCC’s claim of litigation privilege. Rather, the primary submission of the ACCC is that the principle of stare decisis should lead me to reach the same result when the settled elements of litigation privilege are applied to the facts relating to the Hodgson Interview transcript which I must independently find based on the evidence before me.

5 On the other hand, Cadbury objects to the application of stare decisis on three bases: (1) even assuming stare decisis applies, Heerey J was not asked to, and did not, consider the issues on a document-by-document basis but rather on a category level; (2) alternatively, stare decisis does not apply because there is evidence now before the Court that was not before Heerey J and the Full Court that should give rise to different findings of fact and thus a different result in the application of the legal principles governing a claim of litigation privilege; and (3) further, in the alternative, stare decisis only applies to the ratio decidendi of a case, and Heerey J’s application of the second element of litigation privilege was not part of the ratio. I reject these submissions.

6 Cadbury’s primary contention is its second - that stare decisis does not apply because the evidence now before the Court that was not before Heerey J should give rise to different findings of fact and compel a different result. The contents of the stare decisis principle are not in dispute: e.g. Re Tyler; ex parte Foley (1994) 181 CLR 18, 37-38 (per McHugh J) and Bristol-Myers Squibb Company v FH Faulding & Co Limited (2000) 97 FCR 524 at [148], [158]-[160]. In fact, as we are all taught at law school, the more closely the facts of a subsequent case are aligned to those of an earlier case, the more compelling is the case for the application of stare decisis.

7 In Ryan v The Queen (2001) 206 CLR 267, McHugh J quoted with approval the following views of the eminent US jurist Dean Roscoe Pound (at [58]) (emphasis added):

A single decision as an analogy, as a starting point to develop a principle, is...