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ARTICLE · 22 APRIL 2009

Cartel Confessions: The Gift That Keeps On Giving?

Clayton Utz
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Michael Corrigan and Michelle Schonstein explain why the decision in ACCC v Cadbury Schweppes doesn't mean parties should not take advantage of the ACCC's cartel leniency policy.

AustraliaAntitrust/Competition Law
Michael Corrigan
Michael Corrigan
Michelle Schonstien
Michelle Schonstien
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Key Points

  • The Court said that filed statements of evidence (which contained information arising from the ACCC's cartel leniency policy) are not privileged.
  • This should not deter companies from taking advantage of the leniency policy.

The Full Federal Court has held in ACCC v Cadbury Schweppes [2009] FCAFC 32 that the ACCC could not claim legal professional privilege over a number of witness statements (which it held as a consequence of its investigation into the Visy-Amcor cartel operation between 1999-2004), as it had filed and served those documents on its opponent, Visy, in earlier proceedings.

As those documents came into existence as a result of information provided under the ACCC's cartel leniency policy, does that mean companies should hesitate in taking advantage of the ACCC's leniency policy?

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