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On 22 August 2011, the Federal Court handed down an interlocutory judgment in these proceedings requiring the ACCC to disclose the contents of certain documents received on a confidential basis from an immunity applicant, and to disclose the identity of a person who had provided information to the ACCC on a voluntary basis and had been granted derivative immunity.

The information in question (including the identity of Mr A) was contained in annexures to an affidavit filed by the ACCC and defined as the "Fourth Jacquier Affidavit".  The Jacquier Affidavit was filed by the ACCC in response to the first and second respondents applications to set aside service upon them of the principal proceedings. By way of background, the ACCC was granted leave in November 2009 to serve the initiating application and statement of claim upon the respondent Prysmian in Italy and the respondent Nexans in France.

The Issues

Three separate issues arose for decision in these proceedings:

  • First, whether the contents of and annexures to the Fourth Jacquier Affidavit and Mr A's identity should be treated as confidential and not disclosed other than to the persons mentioned in paragraph 1 of the Amended Notice of Motion, because of public interest immunity.
  • Secondly, if the documents and Mr A's identity are not protected by public interest immunity, whether an order should be made under section 50 of the Federal Court Act forbidding or restricting the publication of the documents except in accordance with the regime proposed in ACCC's Amended Notice of Motion, and forbidding or restricting the publication of Mr A's identity in order to prevent prejudice to the administration of justice.
  • Thirdly, whether the Notices to Produce should be set aside because they were not served for a legitimate purpose and are "fishing"; or they are oppressive and not confined to relevant material; or whether an order should be made excusing the ACCC from complying with the Notices.  

On the issue of public interest, His Honour ruled that the public interest in ensuring the Respondents receive a fair trial required disclosure of the documents and the identity of Mr A and thus outweighed (in this case) the public interest in not allowing disclosure of the documents to encourage future informers to cooperate with the ACCC.  He reached the view that the information was necessary to allow the respondents to test the allegations made by the ACCC that it has a prima facie case.

As to the section 50 issue, the Court was not satisfied that such an order would be necessary in order to prevent prejudice (by disclosure) to the administration of justice and therefore declined to make such an order.

As a consequence of the Court's decision, time for filing the Fourth Jacquier Affidavit was extended to 5 September 2011 but the operation of that order has been stayed until 13 September 2011 when the matter was next listed for directions.   On 13 September 2011, orders were made for the production of documents by the ACCC subject to any claims it may have for legal professional privilege and the matter was listed for further directions on 17 October 2011.