AUSTRALIA Law and Practice Contributed by: Elizabeth Avery, Simon Muys, Jacqueline Reid and Owen Fischbein, Gilbert + Tobin
6. Disclosure/Discovery 6.1 Disclosure/Discovery Procedure Access to Documents Pre-Commencement The ACCC has broad statutory powers to compel the provision of information and documents, and conduct oral examinations of individuals, if it has reason to believe that a person is capable of providing informa - tion or documents regarding a matter that constitutes or may constitute a contravention of the CCA (Section 155, CCA). These investigatory powers cease to apply after the commencement of proceedings, from which point the ACCC must use court-ordered discovery. A private party generally has limited ability to obtain documents from the ACCC before proceedings have begun. However, where the ACCC has commenced proceedings, the respondent is entitled to request that the ACCC provide it with every document in connec - tion with the matter that tends to establish the cor - poration or other person’s case (Section 157, CCA), subject to some exceptions. For private civil actions, there is the ability under the Federal Court Rules for parties to apply to the court for preliminary discovery before commencing a substantive claim. To do this, the applicant must show that, after making reasonable enquiries, they do not have sufficient information to decide whether to commence a proceeding and they reasonably believe that they may have a right to relief (see Pfizer Ireland Pharmaceuticals v Samsung Bioepis AU Pty Ltd [2017] FCAFC 193). Discovery in Civil Proceedings All parties (whether ACCC or private litigants) to civil proceedings are also able to seek standard discovery once proceedings have commenced. There is a range of discovery orders available to litigants, and the court will generally grant discovery if doing so will facilitate the just resolution of the proceeding and is necessary for the determination of issues in the proceeding. Outside of formal discovery, a party to a proceed - ing can also obtain documents from another party by issuing a notice to produce. A notice to produce can seek documents that are mentioned in pleadings or
affidavits, or require the production of documents at trial or during a hearing. Discovery in Criminal Proceedings Unlike civil matters, the prosecutor in a criminal matter has a duty of disclosure, which derives from the cen - tral tenet of the Australian criminal justice system that accused persons are entitled to know the case against them. The duty of disclosure arises from the combina - tion of the common law, statute, professional conduct rules, prosecution policies and practice directions of the courts. If a prosecutor does not comply with this obligation, it can result in a miscarriage of justice. In prosecuting criminal cartel matters, the CDPP must comply with any applicable State or Territory laws and any court directions regarding disclosure (this will depend on the State or Territory in which the proceedings are commenced) as well as profes - sional conduct rules. If not already required by those laws, the CDPP must comply with the requirements set out in the “Statement on Disclosure in Prosecu - tions Conducted by the Commonwealth” (Statement of Disclosure), which requires the CDPP to disclose any material that: • can be seen on a sensible appraisal by the pros - ecution to run counter to the prosecution’s case; • might reasonably be expected to assist the accused to advance a defence; or • might reasonably be expected to undermine the credibility or reliability of a material prosecution wit - ness. Ordinarily, the CDPP’s case will be provided to the accused by way of a “Brief of Evidence” (Brief). The timing of the provision of the Brief will depend on the jurisdiction in which the claim is first commenced, but often this will be during committal proceedings. Subpoenas Third-party evidence can be compelled through the issuance of subpoenas in both civil and criminal pro - ceedings. A subpoena can be issued in relation to the production of documents or to compel a witness to appear to give evidence (or both).
15 A NTITRUST LI T IGATI O N 2026
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