has asked me to set out what legal strategies I might adopt if I were
working for Richard Pratt. I now do so, pro bono, the one caveat being
that I only know what has been in the media. The preferred order of
outcomes (best to worst) are:
1. Complete victory over the ACCC, an order for legal costs
and civil actions by customers thus defeated. This will involve
expensive, protracted litigation where the outcome is, at best, a
lottery. Possible but unlikely.
2. If the ACCC has a case, then
sacrifice the company but not Pratt. This is the most likely outcome.
Businessmen like Pratt do deals. Corporate regulators love deals. The
issue will be Pratt’s scalp. Side deals done with customers.
Do a Vizard – guilty with a mea culpa deal for the company and Pratt
(not necessarily followed by a home burglary). This would only occur if
the evidence was assessed to be overwhelming. Highly unlikely.
prediction is that the ACCC and Pratt will do a deal. Pratt will offer
up Visy and the ACCC will officially declare that Pratt himself did not
know about the price-fixing. This will happen later rather than sooner
– that is, many millions later.
How will Pratt’s lawyers achieve
the deal? By following the “Rich Man’s Strategy.” Pratt can deep-pocket
the ACCC. The latter probably have set aside a million or two to fight
this case. Pratt can budget for 20 million, 40 million or more. Pratt’s
lawyers will attack the ACCC case aggressively. Every point will be
taken – if it is lost, then appeal it.
It would be improper for
Pratt’s lawyers to delay the case for the sake of it, but on the other
hand, delays do occur. The two main areas of attack here will be the
ACCC legislation itself and the conduct of the ACCC. The ACCC
legislation will be challenged – if possible, by way of a
constitutional point. This would have to go to the High Court via the
Full Federal Court. Quick as a flash, three years have gone by. Another
High Court point could take another few years. An attempt to discredit
the investigatory conduct of the ACCC and have the conduct declared
illegal or unfair (with the possible consequence of the exclusion of
critical evidence) is another avenue. All of this, unfortunately, takes
The problems for the ACCC are manifold. Just one adverse
decision could destroy their case. The legal costs will be prohibitive
(will the Howard Government look kindly upon a request for special
funding?). And worst of all, over the appeal years, their investigation
teams will disintegrate. The investigators will have nothing to do so
will move on to other investigations or perhaps employment with other
agencies. The whole investigation loses its collective enthusiasm.
Nobody cares much any more – and that is the time for Pratt to settle.
Put shortly, give the ACCC a good kicking and then offer to settle. Works every time.