Warning: Anything You Say May Be Used Against You

Article by Calum Henderson and Merridy Woodroffe

In a decision that has expanded the evidence available to private litigants and class actions in competition law cases, the Full Federal Court has ordered that documents created by the ACCC and produced to an opposing party in a cartel case are available to a plaintiff in separate proceedings.

The Court's decision in ACCC v Cadbury Schweppes Pty Ltd & Ors, handed down on 20 March 2009, denied the ACCC's claim for legal professional privilege over documents it created for litigation and produced to an opposing party (Visy) but never used in open court.

The issue had its origins in the ACCC's proceedings against Visy for price fixing with Amcor in respect of cardboard packaging products. In that case, the court ordered the ACCC to file and serve upon Visy some 111 proofs of evidence of lay witnesses on which it proposed to rely. However, the case settled and the proofs were never read in open court; nor were the