Mr Pratt's fall from grace

... in late 2004 Amcor approached the Commission and admitted liability. The Commission applied its Leniency Policy for Cartel Conduct, published in 2003, under which the first party to disclose a cartel of which the Commission is unaware will receive an immunity, provided it is not the "clear leader", gives full and frank disclosure, and continues to cooperate with the Commission. In unrelated litigation Amcor had sued former executives and obtained a Court order for a search of their premises. Incriminating material, including tape recordings of conversations, was discovered and on its solicitors’ advice Amcor approached the Commission.

Second, it seems that neither Visy, Mr Pratt, Mr McHugh QC (the arbitrator) or Heerey J was told that the ACCC was intending to use the Agreed Statement of Facts in criminal proceedings. Heerey J's judgment explicitly states that the parties agreed that the Agreed Statement of Facts would not be used in any proceeding other than the civil penalty proceeding. Therefore, the ACCC's decision to use it in subsequent criminal proceedings looks duplicitous, particularly in the context of allegations by Mr Pratt's legal team that while the 2007 proceeding was being settled, the ACCC was already plotting laying criminal charges.

Mr Pratt's lawyers said that he maintained his innocence and signed the statement of agreed facts only in order to expedite a settlement deal.

Mr McHugh (another former High Court Judge) said that during the mediation, Mr Pratt again denied meeting Mr Jones, but Mr Pratt was told by Mr McHugh that he would have difficulty proving his word against Mr Jones' word, as a court would want to know why Mr Jones would make something like that up. Mr McHugh also told the prosecution that the main concern of Mr Pratt was as to how to protect his reputation. Ryan J excerpts a section of Mr McHugh’s statement at [30] of his judgment which states:

Neither the ACCC executives nor any of their legal advisers said to me at that time (or any time) that they had in mind an intention, or considered it a possibility that the ACCC might prosecute Mr Pratt under s 155 of the Trade Practices Act or refer that issue to the Commonwealth DPP for advice.

…

The ACCC did not in my presence inform Mr Pratt or his legal advisers, or say to me, that it had in mind an intention, or considered it a possibility, that it might prosecute Mr Pratt under s 155 of the Trade Practices Act or refer that issue to the Commonwealth DPP for advice. Had the ACCC informed me of such risks or possibilities, I would have regarded that as a relevant matter to put to Mr Pratt in considering whether to compromise the civil Penalty Proceeding.

Mr McHugh infers that the advice he would have given to Mr Pratt with regard to the wisdom of settling the proceeding would have been quite different if he had known about the possibility of prosecution.

Third, doubts were cast on the state of Mr Pratt's health at the time when he signed the Agreement Statement of Facts in 2007Mr McHugh’s statement said that “During my time in the Pratt room, Mr Pratt was not engaged with the process. He did not act as I had expected that he would, given his status as a leading businessman, and he appeared distracted.” It was inferred that his health problems contributed to his lack of engagement.

Ultimately, Ryan J decided the case simply on the matter of whether or not the Agreed Statement of Facts was admissible. His conclusion, at [83], was that:

The definition of “agreed fact” in s 191 of the Evidence Act, because of its terms, is not limited to a fact which is true or which the parties believe to be true. It includes a matter capable of being the subject of a finding by a court or tribunal which the parties agree, for the purposes of the proceeding, is not to be disputed. It follows that the inclusion of a statement in an agreed statement pursuant to s 191 is not a representation of fact for all purposes. It is no more than a representation by each party to the proceeding that he, she or it will not dispute the asserted fact in that proceeding. In other words, the only representation in the sense used in the definition of “admission” in the Evidence Act is as to the intention or state of mind of the parties to the Agreed Statement.

No one comes out of this saga looking good. Mr Pratt admitted that he contravened anti-cartel laws in the original proceeding, and his reputation was severely tarnished as a result.

However, the ACCC's subsequent pursuit of Mr Pratt has been a public relations disaster, with friends claiming Mr Samuel hounded Mr Pratt into an early grave. And Mr Pratt's friends include some very powerful people on both sides of politics. It is noteworthy that Prime Minister Kevin Rudd was among those who chose to visit Mr Pratt at his bedside last week. As this article by Katharine Murphy in The Age states:

Head of Government visits to a man who is being prosecuted by the Government via one of its regulators - what a bizarre position for Mr Samuel to find himself in. It's hard to think of a precedent.