case_text: In Ascot Investments Pty Ltd v Harper [1981] HCA 1 ; (1981) 148 CLR 337 Gibbs CJ said (at 354): 'The general words of ss. 80 and 114 must be understood in the context of the Act, which confers jurisdiction on the Family Court in matrimonial causes and associated matters, and in that context it would be unreasonable to impute to the Parliament an intention to give power to the Family Court to extinguish the rights, and enlarge the obligations, of third parties, in the absence of clear and unambiguous words. It can safely be assumed that the Parliament intended that the powers of the Family Court should be wide enough to prevent either of the parties to a marriage from evading his or her obligations to the other party, but it does not follow that the Parliament intended that the legitimate interests of third parties should be subordinated to the interests of a party to a marriage, or that the Family Court should be able to make orders that would operate to the detriment of third parties. There is nothing in the words of the sections that suggests that the Family Court is intended to have power to defeat or prejudice the rights, or nullify the powers, of third parties, or to require them to perform duties which they were not previously liable to perform. It is one thing to order a party to a marriage to do whatever is within his power to comply with an order of the court, even if what he does may have some effect on the position of third parties, but it is quite another to order third parties to do what they are not legally bound to do.'


case_outcome: referred to

case_text: In The Queen v Ross-Jones; Ex parte Green [1984] HCA 82 ; (1984) 156 CLR 185, Wilson and Dawson JJ said (at 211) (footnotes omitted): 'We should add that even if those proceedings were a matrimonial cause, the Family Court would nevertheless lack the power to grant the relief sought. Apart from any constitutional limitation, it is now authoritatively established that as a matter of construction the general powers of the Family Court are to be understood in the context of the Family Law Act which confers jurisdiction upon the Court in matrimonial causes and associated matters. Those powers, which include the power to grant injunctive relief under s. 114 , are not to be construed so as to confer jurisdiction to defeat the rights, or enlarge the obligations, of persons who are not parties to the marriage involved in the relevant matrimonial cause: Ascot Investments Pty. Ltd. v. Harper .' The principle referred to in the above passages has been applied in a number of cases in this Court and, in particular, it was applied in a context involving the provisions of the Bankruptcy Act in Deputy Commissioner of Taxation v Swain (1988) 20 FCR 507. Davies, Lockhart and Burchett JJ said (at 514): 'A sequestration order reflects a right of a creditor, and creates rights as between a debtor and his creditors and trustee. The Family Court, in the pursuit of its duty (in an appropriate case) to adjust rights as between the parties to a marriage, has no power to deprive other parties of their rights. Its power to deal with the property of the parties over whom it has jurisdiction must start with the property that is theirs, not with property that the law (whether the Bankruptcy Act or some other law) has vested in another.'


case_text: Thirdly, (in terms of the position before the Amending Act) s 35A of the Bankruptcy Act has been in the Act since 1988 and the above principles did not mean that this Court would never exercise its discretion to transfer proceedings under the Bankruptcy Act to the Family Court. The circumstances of the case might suggest that that course was appropriate even though, once transferred, the Family Court was bound to give full force and effect to the provisions of the Bankruptcy Act : Re Sabri; Ex parte Sabri v Brien (1995) 60 FCR 131. I also refer to Re Boscolo; Ex parte Botany Council (1996) 62 FCR 397 as an example of a case where this Court refused to transfer proceedings to the Family Court.


case_text: Thirdly, (in terms of the position before the Amending Act) s 35A of the Bankruptcy Act has been in the Act since 1988 and the above principles did not mean that this Court would never exercise its discretion to transfer proceedings under the Bankruptcy Act to the Family Court. The circumstances of the case might suggest that that course was appropriate even though, once transferred, the Family Court was bound to give full force and effect to the provisions of the Bankruptcy Act : Re Sabri; Ex parte Sabri v Brien (1995) 60 FCR 131. I also refer to Re Boscolo; Ex parte Botany Council (1996) 62 FCR 397 as an example of a case where this Court refused to transfer proceedings to the Family Court. 26 Had this application been made under the law as it stood prior to the enactment of the Amending Act, I would have seen no reason to transfer the proceedings to the Family Court. It is true that the Family Court would have had jurisdiction to hear the trustee's claim by reason of the order for transfer and the provisions of s 35A, but the Family Court would have had no power to make orders altering the ownership interests in the freehold property, leasehold property and speedboat if and once the trustee had brought the transfers within the provisions of s 120 or s 121 of the Bankruptcy Act . If he was unsuccessful in doing that then the ownership interests would remain as they are. Furthermore, there is no existing order of the Family Court that might suggest, as it did in Re Sabri; Ex parte Sabri v Brien , that to avoid the appearance of conflict between orders, the proceedings should be transferred to the Family Court. 27 For the purposes of this case, the important change introduced by the Amending Act is that it gives the Family Court the power to make such orders as it considers appropriate, altering the interests of the bankruptcy trustee in what is referred to as 'the vested bankruptcy property'. It is necessary to examine the amendments in some detail because, as the submissions developed, counsel for Mrs Edge submitted that in pursuing a matrimonial cause the trustee 'had simply issued in the wrong court'. 28 The starting point is the introduction into the Family Law Act of two new paragraphs in the definition of 'matrimonial cause'. For present purposes, paragraph (cb) is the relevant paragraph and it is in the following terms: '(cb) proceedings between: (i) a party to a marriage; (ii) the bankruptcy trustee of a bankrupt party to the marriage; with respect to any vested bankruptcy property in relation to the bankrupt party, being proceedings: (iii) arising out of the marital relationship; or (iv) in relation to concurrent, pending or completed divorce or validity of marriage proceedings between the parties to the marriage; or (v) in relation to the divorce of the parties to the marriage, the annulment of the marriage or the legal separation of the parties to the marriage, being a divorce, annulment or legal separation effected in accordance with the law of an overseas jurisdiction, where that divorce, annulment or legal separation is recognised as valid in Australia under section 104 ;' 29 The term 'vested bankruptcy property' is defined in s 4 of the Family Law Act as follows: '"vested bankruptcy property" , in relation to a bankrupt, means property of the bankrupt that has vested in the bankruptcy trustee under the Bankruptcy Act 1966 . For this purpose, property has the same meaning as in the Bankruptcy Act 1966 .' 30 By reason of the Amending Act, s 79(1) of the Family Law Act (which is in Part VIII) now reads: '(1) In property settlement proceedings, the court may make such order as it considers appropriate: (a) in the case of proceedings with respect to the property of the parties to the marriage or either of them--altering the interests of the parties to the marriage in the property; or (b) in the case of proceedings with respect to the vested bankruptcy property in relation to a bankrupt party to the marriage--altering the interests of the bankruptcy trustee in the vested bankruptcy property; including: (c) an order for a settlement of property in substitution for any interest in the property; and (d) an order requiring: (i) either or both of the parties to the marriage; or (ii) the relevant bankruptcy trustee (if any); to make, for the benefit of either or both of the parties to the marriage or a child of the marriage, such settlement or transfer of property as the court determines.'


case_text: On 18 May 2006, Mrs Edge issued proceedings in the Family Court of Australia against the trustee and the bankrupt seeking certain orders under the Family Law Act 1975 (Cth) ('the Family Law Act '). During the course of the submissions on the application, counsel for Mrs Edge indicated that the orders sought in the proceedings in the Family Court may need to be amended. After the submissions, a member of the firm of solicitors acting for Mrs Edge filed an affidavit in which it is said that Mrs Edge has amended the application in the proceedings in the Family Court in terms of the orders sought. Subject to the question of costs, I am prepared to decide this application on the basis of the orders sought in the amended application. Those orders are as follows: '1. That pursuant to section 44(3) of the Family Law Act 1975 , leave of the Court be granted to institute proceedings for the orders applied for hereinafter. 2. That pursuant to section 78 of the Family Law Act 1975 a declaration be made that: 2.1 Pursuant to section 90KA of the Family Law Act 1975 , the Binding Financial Agreement entered into between the husband and wife on 22 May 2003 is valid and binding, and 2.2 The transfers executed on 18 and 19 September 2002 respectively pursuant to the Binding Financial Agreement entered into between the husband and wife on 22 May 2003 are valid and binding. 2.3 In the alternative to 2.2, that the transfers effected on 18 and 19 September 2002 respectively were in contemplation of the Binding Financial Agreement entered into between the husband and wife on 22 May 2003 and thus valid and binding. 2.4 As a consequence thereof the wife is entitled to be and remain registered as the sole proprietor both at law and in equity of the properties situate at and known as 68 Range Road North, Upper Hermitage in the State of South Australia being all the land comprised in Certificate of Title Volume 5711 Folio 494 and 32 & 33 Pelican Point, Morgan in the State of South Australia being all the land comprised in Certificate of Title Volume 5203 folio 799. 3. In the alternative, that if the Transfers referred to in paragraphs 2.2 and 2.3 above are void against the first respondent by reason of the operation of either or both of sections 120 and 121 of the Bankruptcy Act 1966 : - 3.1 An order pursuant to sub-sections 90K(1)(b) and (c) of the Family Law Act terminating the binding financial agreement entered into between the husband and wife on 22 May 2003. 3.2 Such order as is just and equitable pursuant to section 90K(3) of the Family Law Act 1975 preserving or adjusting the rights of the wife in relation to the property the subject of the terminated binding financial agreement. 4 In the further alternative to 2 and 3, that pursuant to section 79 of the Family Law Act 1975 , the net matrimonial assets of the parties be divided as to 75% to the applicant wife and 25% to the respondent husband. 5 That the husband's Trustee in Bankruptcy PETER IVAN MACKS be substituted as the Respondent in these proceedings in respect of the husband's property that may vest in the Trustee in Bankruptcy.' 15 The trustee submits that, insofar as an order is sought under s 79(1) of the Family Law Act , the application is out of time, and it will be necessary for Mrs Edge to obtain an extension of time. I have no information before me as to whether an extension of time will be granted, and I think it is appropriate to proceed on the basis that it may be granted. 16 Significant amendments were made to the Bankruptcy Act and Family Law Act by the Bankruptcy and Family Law Legislation Amendment Act 2005 (Cth). I will refer to this Act as 'the Amending Act'. In terms of the issues in this case, it was not suggested that the relevant provisions of the Amending Act did not apply by reason of the fact that the relevant provisions came into effect during the course of 2005. I note that the amendments in Schedule 1 came into operation on 18 September 2005, those in Schedule 2 on 18 March 2005 and the balance on 15 April 2005. 17 In order to explain the effect of the Amending Act on the legal rights and interests between a non-bankrupt spouse and the trustee in bankruptcy of a bankrupt spouse, it is necessary to briefly examine the position before that Act. For present purposes, the previous position may be summarised as follows. 18 First, s 120(2) excludes from the operation of subsection (1) (among other things) a transfer to meet all or part of a liability under a maintenance agreement. Before 15 April 2005, 'maintenance agreement' was defined to include a financial agreement within the meaning of the Family Law Act . A similar exclusion or exception applied in relation to other provisions in the Bankruptcy Act , but it was not an exclusion or exception in the case of the operation of s 121 where the main purpose of the transfer was to prevent the transferred property from becoming divisible among the transferor's creditors or to hinder or delay the process of making property available for division among the transferor's creditors (s 123(6)). Before the introduction of the Amending Act, Mrs Edge could have raised as a defence or exception to the trustee's claim under s 120, but not s 121, an allegation that the transfers were to meet liabilities under a financial agreement. 23 In The Queen v Ross-Jones; Ex parte Green [1984] HCA 82 ; (1984) 156 CLR 185, Wilson and Dawson JJ said (at 211) (footnotes omitted): 'We should add that even if those proceedings were a matrimonial cause, the Family Court would nevertheless lack the power to grant the relief sought. Apart from any constitutional limitation, it is now authoritatively established that as a matter of construction the general powers of the Family Court are to be understood in the context of the Family Law Act which confers jurisdiction upon the Court in matrimonial causes and associated matters. Those powers, which include the power to grant injunctive relief under s. 114 , are not to be construed so as to confer jurisdiction to defeat the rights, or enlarge the obligations, of persons who are not parties to the marriage involved in the relevant matrimonial cause: Ascot Investments Pty. Ltd. v. Harper .' The principle referred to in the above passages has been applied in a number of cases in this Court and, in particular, it was applied in a context involving the provisions of the Bankruptcy Act in Deputy Commissioner of Taxation v Swain (1988) 20 FCR 507. Davies, Lockhart and Burchett JJ said (at 514): 'A sequestration order reflects a right of a creditor, and creates rights as between a debtor and his creditors and trustee. The Family Court, in the pursuit of its duty (in an appropriate case) to adjust rights as between the parties to a marriage, has no power to deprive other parties of their rights. Its power to deal with the property of the parties over whom it has jurisdiction must start with the property that is theirs, not with property that the law (whether the Bankruptcy Act or some other law) has vested in another.'


case_outcome: followed

case_text: However, the decision of Scarlett FM was handed down before the decision of a Full Federal Court in Minister for Immigration & Citizenship v SZKKC (2007) 159 FCR 565. That case is authority for the proposition that s 477 of the Act requires actual notification of the written statement required by s 430(1). Buchanan J, with whom Gyles J and I agreed, said at [37] that the sole method of actual notification is physical delivery by hand. 5 His Honour also said at [47] that: "Before their [i.e. the applicants'] right to apply for judicial review of a decision of the RRT which is alleged to be beyond jurisdiction is extinguished it will be necessary for the periods of time prescribed by s 477 to pass after an applicant is given personally the written statement required by s 430(1) of the Act..." 6 Justice Gyles, at [1] and [4], pointed to the serious practical difficulties which flow from the reasons of the Full Court. 7 The decision in SZKKC is now the subject of an application for special leave to appeal to the High Court. However, plainly enough, I am bound by the decision of the Full Court unless and until it is overturned by the High Court. 8 The Minister, in his written submissions, pointed to a number of discretionary considerations as to why I ought not to grant leave to appeal. Mr Chami also pointed to the fact that ordinarily presumptions would be raised against the applicant on the question of receipt of the reasons of the Tribunal. However, it seems to me that none of the matters to which reference is made in the Minister's submissions go to the question which was before Scarlett FM as to whether the Federal Magistrates Court had jurisdiction to entertain the application for judicial review. 9 In light of the decision of the Full Court in SZKKC there can be no real argument but that the decision of the Federal Magistrate is attended by sufficient doubt to warrant the grant of leave to appeal. There would, of course, be an injustice to the applicant if leave were denied because he would be shut out from a substantive hearing of his application for review. 10 It follows that I propose to grant leave to appeal against the decision of Scarlett FM. Moreover, it seems to me that the practical course is to allow the appeal because the matter cannot be distinguished from the decision of the Full Court in SZKKC . 11 After some debate, Mr Chami accepted the inevitability of this outcome and did not really oppose an order that the appeal be allowed because the effect of this will be that the matter is to be remitted to the Federal Magistrates Court for hearing of the application for review of the decision of the Refugee Review Tribunal. 12 In his reasons for judgment Scarlett FM drew attention to the delays in this matter. He expressed the view that the delays on the part of the Minister's Department are "nothing short of astonishing". Whether or not this is so, it does seem to me that this is a case which calls out for an urgent hearing. I would therefore make the following orders: (1) Leave to appeal against the decision of Scarlett FM of 18 June 2007 be granted. (2) The appeal be heard instanter. (3) The appeal be allowed, to the intent that the decision of Scarlett FM that the application be dismissed as incompetent is to be set aside. (4) The order made by Scarlett FM on 18 June 2007 be set aside. (5) The application in this matter be remitted to the Federal Magistrates Court for hearing.


case_outcome: cited

case_text: The High Court looked at an aspect of waiver of legal professional privilege in Mann v Carnell [1999] HCA 66 ; (1999) 201 CLR 1. The test applied there was whether there was " conduct inconsistent with the maintenance of the confidentiality which the privilege is intended to protect ": Mann v Carnell [1999] HCA 66 ; (1999) 201 CLR 1 at [29] . The High Court has not looked directly at the immediate question now in issue. And decisions of trial and intermediate courts both pre and post Mann v Carnell have looked at the question but have not spoken with one voice. On the one hand, there is a body of authority supporting the proposition that " statements or affidavits filed and served in proceedings, but not read in open court, remain ... subject to legal professional privilege ": Liberty Funding Pty Ltd v Phoenix Capital Ltd (2005) 218 ALR 283 at [15] (citing Nilsen Industrial Electronics Pty Ltd v National Semiconductor Corporation (1994) 48 FCR 337; State Bank of South Australia v Smoothdale Ltd (No 2) (1995) 64 SASR 224; Akins v Abigroup Ltd (1998) 43 NSWLR 539; Sevic v Roarty [1998] NSWSC 462 ; (1998) 44 NSWLR 287); Spotless Group Ltd v Premier Building & Consulting Pty Ltd [2006] VSCA 201 ; AMP Financial Planning Pty Ltd v CGU Insurance Ltd [2004] FCA 1196 ; Polyaire Pty Ltd v K-Aire Pty Ltd (2003) 226 LSJS 109 and ACCC v Telstra Corp Ltd [2000] FCA 28 ; (2000) 96 FCR 317.


case_text: A court will not order the production of a document if disclosure of the document would be injurious to the public interest: Alister v The Queen [1983] HCA 45 ; (1984) 154 CLR 404; Sankey v Whitlam [1978] HCA 43 ; (1978) 142 CLR 1. The court must undertake a balancing test, considering "whether the public interest which requires that [a] document should not be produced outweighs the public interest that a court of justice in performing its functions should not be denied access to relevant evidence" : Sankey [1978] HCA 43 ; (1978) 142 CLR 1 at 38-39. As this formulation of the test makes clear, the onus is on the party seeking to prevent disclosure of a document. 26 This onus has been described by Lindgren J as a "heavy burden" requiring the proponent of immunity to "establish a 'real' rather than merely 'some' or 'any' detriment to the public interest from disclosure" of the documents: Somerville v ASC (1995) 60 FCR 319 at 354. If the proponent cannot establish any such interest as a threshold matter, then the balancing test never arises, and the immunity claim will fail at the outset: As the High Court said in Alister v The Queen [1983] HCA 45 ; (1983) 154 CLR 404 at 412, " the balancing exercise ... can only be taken when it appears that both aspects of the public interest do require consideration " (Emphasis added).


case_title: AMP Financial Planning Pty Ltd v CGU Insurance Ltd [2004] FCA 1196


case_title: Australian Competition and Consumer Commission v ABB Power Transmission Pty Ltd [2003] FCA 626

case_text: The "public interest" claimed by the ACCC to require protection of Category III documents from disclosure was said to be to encourage, by ensuring the confidentiality of information they provide, cartel whistleblowers to come forward. In ACCC v ABB Power Transmission Pty Ltd [2003] FCA 626 at [43] , the Court suggested in obiter dicta that such a public interest might exist. In the present case, Counsel for the ACCC put it this way: The public interest ... is to induce the Amcors of this world - those who come forward early, under the immunity policy - to give the fullest possible assistance to the [ACCC] to ensure that the cartel is put at an end as quickly as possible, prosecuted, and brought to finality quickly. The more assistance that Amcor gives the [ACCC] in that regard, the better the quality of the admissions and the evidence ... 28 Counsel for the ACCC conceded that confidentiality could not be absolute, in that both the ACCC and any potential whistleblower should reasonably expect that the whistleblower might have to testify in open court (ie, the whistleblower's statements might ultimately come into the public domain). Nevertheless, counsel for the ACCC maintained that this expectation was not inconsistent with a reasonable expectation that statements provided to the ACCC will remain confidential because most cartel cases settle with the result that: (1) it never becomes necessary for witness statements of whistleblowers to be used in court; and (2) the entry into the public domain of witness statements of whistleblowers is the exception rather than the rule. Without being able to rely on the confidentiality of statements not used in court, counsel for the ACCC submitted that whistleblowers might be dissuaded from coming forward and the public interest in rooting out cartel conduct correspondingly injured. 29 Regardless of whatever theoretical merit the argument may have (which I will address shortly), the force of the ACCC's submission was undercut by the evidence of its own witness Mr Cassidy (the officer in charge of the leniency program for cartel whistleblowers) that in the present case Amcor did not seek confidentiality guarantees in its immunity application. In ACCC v ABB Power Transmission Pty Ltd [2003] FCA 626 at [44] , the Court suggested that the force of any public interest immunity claim will be vitiated where the independent witnesses cooperating with the ACCC did not even seek confidentiality. I agree. Moreover, even the broader factual merit of the claim is suspect, as the ACCC led no evidence that any cartel whistleblower, whether in this case or otherwise, has demonstrated reluctance to come forward based on a concern that information provided might become public. 30 The theoretical merit of the ACCC's confidentiality contentions is even more deficient. A cartel claim, by definition, involves collusion between two or more actors. In the same way that it is both inevitable and self-evident that the statements of a cooperating criminal conspirator will be used against (ie, disclosed to) the non-cooperating conspirators, it must be taken for granted that a cartel participant contemplating a confession to the authorities knows, or should know, that his statements will be used by the authorities to prosecute the other party or parties. As such, the ACCC's claim that a party like Amcor can have a reasonable expectation of confidentiality with respect to statements made to investigators is devoid of substance. And without such a reasonable expectation, the ACCC's contention that non-disclosure of the documents is required to protect the public interest cannot stand.


case_title: Australian Competition and Consumer Commission v Dataline.Net.Au Pty Ltd (2006) 236 ALR 665

case_text: First, there is at least an equal, if not more compelling, public interest in allowing private litigants to rely on the output of regulatory investigations, which are undertaken by public regulators at least in part on their behalf. The ACCC should be " motivated by a desire to do its duty, both towards the public and towards individual investors " ( ACCC v Michigan Group Pty Ltd [2002] FCA 1439 at [22] ). It is not motivated by corporate profit motives or competitive concerns. Indeed, the ACCC often justifies requests for findings of fact, declarations, and injunctions that may be of little or no importance in the matter before the court on the grounds that they will be useful to follow-on private litigants: ACCC v Michigan Group Pty Ltd [2002] FCA 1439 at [24] ; ACCC v Dataline.Net.Au Pty Ltd (2006) 236 ALR 665 at [105]-[107] (discussing s 83 of the Trade Practices Act 1974 (Cth), which outlines the circumstances in which findings made in penalty proceedings under s 77 may be used as prima facie evidence in damages proceedings brought under s 82).


case_title: Australian Competition and Consumer Commission v FFE Building Services Ltd [2003] ATPR 41-967

case_text: In Trade Practices Commission v Sterling (1979) 36 FLR 244, 246, Lockhart J described the litigation privilege rule as follows: Communications passing between the party and a third person (who is not the agent of the solicitor to receive the communication from the party) if they are made with reference to litigation either anticipated or commenced, and at the request or suggestion of the party's solicitor; or, even without any such request or suggestion, they are made for the purpose of being put before the solicitor with the object of obtaining his advice or enabling him to prosecute or defend an action. See also ACCC v FFE Building Services [2003] ATPR 41-967 at [24]-[33]; Leighton [2007] WASCA 151 at [12] ; Pratt Holdings [2004] FCAFC 122 ; (2004) 136 FCR 357 at [1] , [89] and [96].


case_title: Australian Competition and Consumer Commission v Michigan Group Pty Ltd [2002] FCA 1439


case_title: Australian Competition and Consumer Commission v Telstra Corp Ltd [2000] FCA 28 ; (2000) 96 FCR 317


case_text: As is now well known, Visy Industries Holdings Pty Limited and related entities ("Visy") were ordered to pay approximately $36 million in penalties as a result of those entities colluding with Amcor Limited ("Amcor") to fix prices in the cardboard box market: Australian Competition and Consumer Commission v Visy Industries Holdings Pty Limited (No 3) (2007) ATPR 42-185 ("the ACCC proceeding" or "penalty proceeding"). This proceeding is one of a number of ancillary proceedings in which allegations of the same or similar conduct are made. It is an action brought by the applicant, Cadbury Schweppes Pty Ltd ("Cadbury"), against Amcor for damages under the Trade Practices Act 1974 (Cth) ("the damages proceedings"). Visy has been joined by Amcor as a respondent to Amcor's cross claim in the damages proceedings. 2 An interlocutory dispute has arisen in the damages proceedings. The Australian Competition and Consumer Commission ("ACCC") makes a claim for legal professional privilege and public interest immunity privilege in relation to specified documents created in connection with the ACCC proceeding. Amcor and Visy have discovered the documents in the damages proceedings, but the ACCC seeks to prevent them from producing those documents to Cadbury on discovery. 3 Specifically, the ACCC contends that legal professional privilege held by it prevents Amcor and Visy's production to Cadbury of the following three categories of documents: (1) Six witness statements - of which three were drafted by Amcor's external solicitors at the direction of the ACCC and three were drafted by ACCC staff and then forwarded to Amcor's in-house counsel. Copies of the statements were retained by Amcor's external solicitors and Amcor respectively. Each of the 6 statements summarises statements made by Amcor employees to ACCC investigators in the course of the Visy investigation (Category I); (2) 111 witness proofs, summarizing statements made to ACCC investigators, drafted by the ACCC in the ACCC proceedings and, at the direction of the Court, filed and served on Visy in those proceedings (Category II); and (3) Eight specified witness proofs from Amcor employees which, although a subset of the 111 witness proofs in Category II, are alleged to be protected from disclosure by public interest immunity in addition to legal professional privilege (Category III). The documents in each category are listed in Appendix A.


case_outcome: discussed

case_text: On the other hand, there is also authority for the proposition that filing and service, without more, operates as a full or limited waiver: eg, Complete Technology Pty Ltd v Toshiba (Australia) Pty Ltd (1994) 53 FCR 125; Austress v Marlin [2002] NSWSC 958 ; Chief Executive Officer of Customs v Neate (1998) 144 FLR 373; Black & Decker Inc v Flymo Ltd [1991] 1 WLR 753; In the Marriage of Crowe [1988] FLC 91-983 and Leaders Shoes (Aust) Pty Ltd v National Insurance Co of New Zealand Ltd [1968] 1 NSWR 344. As one would expect, Cadbury relies on these cases. Cadbury also relies on Liberty Funding (2005) 218 ALR 283, where the Full Court of the Federal Court considered this conflicting authority. Although the Full Court did not formally decide the issue, it did suggest that the proper approach must recognize the distinction between legal professional privilege and the implied undertaking (with respect to the implied undertaking, see [19-22] below). The Full Court's criticism of the Smoothdale line of cases (at [25]) was in the following terms: The difficulty with the approach in Smoothdale is highlighted by the approach of Barrett J in Austress Freyssinet Pty Ltd v Marlin International Pty Ltd [2002] NSWSC 958 in which his Honour distinguished cases such as Smoothdale on the basis that they were concerned with use in one proceedings of a statement or an affidavit filed and served in another. Barrett J, on the other hand, was dealing with the question whether a party could tender, as an admission, parts of an affidavit sworn by the opposing party in the same proceeding. Barrett J said, buttressed by ample authority, that this could be done, because it was within the range of permitted use the purpose of the proceedings. Barrett J was undoubtedly correct. Thus, it is necessary to posit a limited waiver, within a broad framework of the conduct of proceedings, which may bring about the result (as in Austress ) that it is in the other side's power to destroy the privilege entirely by putting the statement or affidavit into evidence or examining or cross-examining on its contents. (Emphasis added.)


case_text: It is sufficient for present purposes to begin by stating that in order to maintain a claim of legal professional privilege, a proponent must demonstrate the communication is protected by "advice privilege" or "litigation privilege." The relationship between the two types of legal professional privilege is just one of the matters that is unclear in Australian privilege law. Some cases support the proposition that "litigation privilege is a separate category of legal professional privilege ": Public Transport Authority of Western Australia v Leighton Contractors Pty Ltd [2007] WASCA 151 at [18] ; See also R v King [2007] 2 NZLR 137; Westgold Resources NL v St Barbara Mines Ltd [2007] WASC 47 ; Mitsubishi Electric Australia Pty Ltd v Victorian Work Cover Authority [2002] VSCA 59 ; (2002) 4 VR 332; Southern Equities Corporation Ltd v West Australian Government Holdings Ltd (1993) 10 WAR 1 and Dingle v Commonwealth Development Bank of Australia (1989) 23 FCR 63. On the other hand, it is also true that the " High Court has yet to make clear whether litigation privilege has an existence and rationale distinct from the advice privilege ": eg, Leighton [2007] WASCA 151 at [20] ; AWB Ltd v Cole [2006] FCA 571 ; (2006) 152 FCR 382; Ingot Capital Investments Pty Ltd v Macquarie Equity Capital Markets Ltd (2006) 67 NSWLR 91; Westpac Banking Corporation v 789Ten Pty Ltd (2005) 55 ACSR 519 and Pratt Holdings Pty Ltd v Commissioner of Taxation [2004] FCAFC 122 ; (2004) 136 FCR 357.


case_title: Black & Decker Inc v Flymo Ltd [1991] 1 WLR 753


case_title: Chief Executive Officer of Customs v Neate (1998) 144 FLR 373


case_outcome: applied

case_text: With respect to advice privilege it was, until recently, uncontroversial that the proponent had to establish three elements: (1) a confidential communication, (2) between a lawyer and client, (3) made for the dominant purpose of giving or receiving legal advice: see Commissioner of Australian Federal Police v Propend Finance Pty Ltd [1997] HCA 3 ; (1997) 188 CLR 501, 508-09 (stating that a confidential lawyer-client relationship is required) and Esso Australia Resources Ltd v Commissioner of Taxation (Cth) [1999] HCA 67 ; (1999) 201 CLR 49 at [61] (adopting the dominant purpose test). The Full Court of the Federal Court has now dispensed with the second requirement, holding that third-party communications may come within the ambit of advice privilege: Pratt Holdings [2004] FCAFC 122 ; (2004) 136 FCR 357 at [49] , and [105]. 9 However, the witnesses whose statements are at issue here had no express agreement or arrangement relating to confidentiality at the time the statements were made. Indeed, the ACCC's own witness in the present application confirmed that Amcor made no attempt to seek confidentiality: see [28] below. And it was not suggested that any implied agreement relating to confidentiality of communications between any of the witnesses and the investigators can be identified. It follows that advice privilege cannot attach to communications between the witnesses and investigators. And it also follows that no advice privilege inherently attaches to any documents (ie, the witness statements) summarizing those communications (which is not to say that privilege could never attach to copies or summaries of the communications depending on the purpose for which the copies or summaries were created: see Propend [1997] HCA 3 ; (1997) 188 CLR 501). Accordingly, a claim of advice privilege fails with respect to all three categories of disputed documents. 11 It is at this point that the doctrinal relationship between the advice and litigation branches of the privilege becomes relevant. As McLure JA noted in Leighton , the " High Court has made numerous general statements which, on their face, are capable of applying to all categories of legal professional privilege, to the effect that the privilege only attaches to confidential communications ": Leighton [2007] WASCA 151 at [22] . In fact, some of those general statements can be fairly read to support the view that confidentiality is required for all categories of legal professional privilege. For example, in remarks quoted by Brennan CJ in Propend [1997] HCA 3 ; (1997) 188 CLR 501 (at 508-09), Mason J stated in O'Reilly v State Bank of Victoria [1982] HCA 74 ; (1983) 153 CLR 1 at 22-23: But if communications in written form are to be privileged they must still be confidential communications between solicitor and client made for the purpose of advice or for the purpose of use in existing or anticipated litigation. Be that as it may, I agree with McLure JA that the High Court has never squarely confronted the issue, leaving the field open for lower courts to take opposing views. 33 Second, the "free rider" argument fails because it is, ultimately, founded on a theory of "work product" privilege not accepted in Australia. The work product doctrine, recognized by the United States Supreme Court, states that information or material prepared by attorneys reflecting attorney mental impressions, strategy, or other "work product," even though not documenting lawyer-client communications or otherwise within the ambit of ordinary legal professional privilege, may be independently protected from discovery: Hickman v Taylor (1947) 329 US 495. The problem for the ACCC, however, is that work product is not recognized in Australia as an independent head of privilege: Commissioner of Propend [1997] HCA 3 ; (1997) 188 CLR 501 at 570 (describing the US work product doctrine as part of general privilege law in Australia) (Gummow J); Leighton [2007] WASCA 151 at [17] (stating in Australia that the work product doctrine is recognised in the context of the litigation privilege). The ACCC itself has acknowledged this state of affairs: ACCC Position Paper, "Review of Leniency Policy for Cartel Conduct" (26 August 2005) at 19 n 21, available at http://www.accc.gov.au/content/item.phtml?itemId=725616&nodeId=3a1faa8ec1e755f25adef02560676bf5&fn=Leniency%20position%20paper.pdf (viewed 1 February 2008). 37 For the sake of completeness, I should first note Cadbury's overall argument regarding the Category I documents. It was based on the fact that the copy witness statements retained by Amcor were just that - copies - and thus under Propend , their privilege status may differ from that of the original. To the extent that I have correctly understood the argument put by counsel, it misunderstands Propend . Propend established that the copy of a document may under some circumstances (ie depending on the dominant purpose for which it was created) be privileged even though the original is not privileged: Propend [1997] HCA 3 ; (1997) 188 CLR 501 at 508 per Brennan CJ, 543-544 per Gaudron J, and 554 per McHugh J. I do not, however, consider that Propend also establishes the converse; that is, the copy of a document may be unprivileged even though the original is. 38 Instead, I understand Propend to say that a copy of a privileged document will also be privileged unless the privilege has been expressly or impliedly waived (although it may be that allowing a copy to be made in certain circumstances is capable of being conduct constituting such a waiver, such as when a copy is made and communicated to a third party for purposes not related to legal advice or litigation): cf Spotless Group Ltd v Premier Building Pty Ltd [2006] VSCA 201 at [60] - [66] (noting that Propend left the issue open but concluding that whether a copy of a privileged document is privileged is distinct from whether privilege has been waived). As such, Cadbury's argument, notwithstanding the way in which counsel sought to frame it, may be reduced to two questions: (1) are the documents privileged; and (2) has privilege been waived? 43 Against that background, I now turn to the question of waiver. Cadbury correctly notes that there is no evidence as to how or why copies of Category I documents were made and retained by Amcor or Amcor's external solicitors. As noted earlier, Cadbury agitated this argument as a reverse Propend claim. It is, however, more properly understood as a waiver claim. That is to say, Cadbury appears to argue that although the original documents may have been created by or provided to Amcor under circumstances of confidentiality and even express claims of privilege, allowing Amcor to make or retain copies for its own use is conduct by ACCC inconsistent with its privilege claim.


case_title: Complete Technology Pty Ltd v Toshiba (Australia) Pty Ltd (1994) 53 FCR 125


case_title: Dingle v Commonwealth Development Bank of Australia (1989) 23 FCR 63


case_text: With respect to advice privilege it was, until recently, uncontroversial that the proponent had to establish three elements: (1) a confidential communication, (2) between a lawyer and client, (3) made for the dominant purpose of giving or receiving legal advice: see Commissioner of Australian Federal Police v Propend Finance Pty Ltd [1997] HCA 3 ; (1997) 188 CLR 501, 508-09 (stating that a confidential lawyer-client relationship is required) and Esso Australia Resources Ltd v Commissioner of Taxation (Cth) [1999] HCA 67 ; (1999) 201 CLR 49 at [61] (adopting the dominant purpose test). The Full Court of the Federal Court has now dispensed with the second requirement, holding that third-party communications may come within the ambit of advice privilege: Pratt Holdings [2004] FCAFC 122 ; (2004) 136 FCR 357 at [49] , and [105].


case_text: A basic principle of Australian litigation is that parties give an implied undertaking to the court not to use any document produced to them in the course of litigation except in the context of that litigation: Esso Australia Resources Ltd v Plowman [1995] HCA 19 ; (1995) 183 CLR 10, 32, 36-37, 46; see also Harman v Secretary of State for the Home Department [1983] 1 AC 280. Where other courts have erred doctrinally is in failing to distinguish the implied undertaking analysis from the waiver analysis. The Full Court in Liberty Funding recognized this error when it stated (at [26]): " This so-called 'limited waiver' by service such that the privilege is waived only for the purpose of the legal proceedings in question might be seen to be no more than the operation of the implied undertaking dealt with in Harman ": Liberty Funding (2005) 218 ALR 283. In other words, the limitation on Visy's use of the witness proofs stems not from limitations to be inferred from the conduct of the ACCC in serving them, but in Visy's own obligations to the Court. 22 Depending on whether the restrictions on Visy's use of the witness proofs is sourced doctrinally to the legal professional privilege of the ACCC or, instead, the implied undertaking, is vital. It is vital because the implied undertaking is not absolute but the privilege is. The Plowman Court in dicta stated (at 33): No doubt the implied obligation must yield to inconsistent statutory provisions and to the requirements of curial process in other litigation, eg, discovery and inspection, but that circumstance is not a reason for denying the existence of the implied obligation. In Patrick v Capital Finance Pty Ltd (No4) [2003] FCA 436 at [15] - [22] , these dicta were applied in support of the proposition that a party is released from the implied undertaking when faced with a conflicting discovery obligation in a subsequent litigation.


case_text: This is not to say that there could never be something less than a full waiver of privilege; rather, the point is that for there to be only a limited waiver, the original holder must still retain full control as to further dissemination of the document. So, for example, providing a witness statement to a party but subject to conditions that the party may use it only for internal purposes, may not read it in court, may not place it into evidence and may not otherwise rely on it in examination or the proceedings generally might constitute a limited waiver only: see Goldberg v Ng [1995] HCA 39 ; (1995) 185 CLR 83, 96 (stating that the waiver "can be limited so that it applies only in relation to particular persons, materials or purposes" ); Goldman v Hesper [1988] 3 All ER 97 (cited in Mann v Carnell [1999] HCA 66 ; (1988) 201 CLR 1 at [29] for the proposition that disclosure "for a limited and specific purpose" will not lead to loss of the privilege).


case_title: Goldman v Hesper [1988] 3 All ER 97


case_text: A basic principle of Australian litigation is that parties give an implied undertaking to the court not to use any document produced to them in the course of litigation except in the context of that litigation: Esso Australia Resources Ltd v Plowman [1995] HCA 19 ; (1995) 183 CLR 10, 32, 36-37, 46; see also Harman v Secretary of State for the Home Department [1983] 1 AC 280. Where other courts have erred doctrinally is in failing to distinguish the implied undertaking analysis from the waiver analysis. The Full Court in Liberty Funding recognized this error when it stated (at [26]): " This so-called 'limited waiver' by service such that the privilege is waived only for the purpose of the legal proceedings in question might be seen to be no more than the operation of the implied undertaking dealt with in Harman ": Liberty Funding (2005) 218 ALR 283. In other words, the limitation on Visy's use of the witness proofs stems not from limitations to be inferred from the conduct of the ACCC in serving them, but in Visy's own obligations to the Court.


case_title: Hickman v Taylor (1946) 329 US 495

case_text: Second, the "free rider" argument fails because it is, ultimately, founded on a theory of "work product" privilege not accepted in Australia. The work product doctrine, recognized by the United States Supreme Court, states that information or material prepared by attorneys reflecting attorney mental impressions, strategy, or other "work product," even though not documenting lawyer-client communications or otherwise within the ambit of ordinary legal professional privilege, may be independently protected from discovery: Hickman v Taylor (1947) 329 US 495. The problem for the ACCC, however, is that work product is not recognized in Australia as an independent head of privilege: Commissioner of Propend [1997] HCA 3 ; (1997) 188 CLR 501 at 570 (describing the US work product doctrine as part of general privilege law in Australia) (Gummow J); Leighton [2007] WASCA 151 at [17] (stating in Australia that the work product doctrine is recognised in the context of the litigation privilege). The ACCC itself has acknowledged this state of affairs: ACCC Position Paper, "Review of Leniency Policy for Cartel Conduct" (26 August 2005) at 19 n 21, available at http://www.accc.gov.au/content/item.phtml?itemId=725616&nodeId=3a1faa8ec1e755f25adef02560676bf5&fn=Leniency%20position%20paper.pdf (viewed 1 February 2008).


case_title: In the Marriage of Crowe [1988] FLC 91-983


case_title: Ingot Capital Investments Pty Ltd v Macquarie Equity Capital Markets Ltd (2006) 67 NSWLR 91


case_title: Leaders Shoes (Aust) Pty Ltd v National Insurance Co of New Zealand Ltd [1968] 1 NSWR 344


case_text: The High Court looked at an aspect of waiver of legal professional privilege in Mann v Carnell [1999] HCA 66 ; (1999) 201 CLR 1. The test applied there was whether there was " conduct inconsistent with the maintenance of the confidentiality which the privilege is intended to protect ": Mann v Carnell [1999] HCA 66 ; (1999) 201 CLR 1 at [29] . The High Court has not looked directly at the immediate question now in issue. And decisions of trial and intermediate courts both pre and post Mann v Carnell have looked at the question but have not spoken with one voice. On the one hand, there is a body of authority supporting the proposition that " statements or affidavits filed and served in proceedings, but not read in open court, remain ... subject to legal professional privilege ": Liberty Funding Pty Ltd v Phoenix Capital Ltd (2005) 218 ALR 283 at [15] (citing Nilsen Industrial Electronics Pty Ltd v National Semiconductor Corporation (1994) 48 FCR 337; State Bank of South Australia v Smoothdale Ltd (No 2) (1995) 64 SASR 224; Akins v Abigroup Ltd (1998) 43 NSWLR 539; Sevic v Roarty [1998] NSWSC 462 ; (1998) 44 NSWLR 287); Spotless Group Ltd v Premier Building & Consulting Pty Ltd [2006] VSCA 201 ; AMP Financial Planning Pty Ltd v CGU Insurance Ltd [2004] FCA 1196 ; Polyaire Pty Ltd v K-Aire Pty Ltd (2003) 226 LSJS 109 and ACCC v Telstra Corp Ltd [2000] FCA 28 ; (2000) 96 FCR 317. 15 On the other hand, there is also authority for the proposition that filing and service, without more, operates as a full or limited waiver: eg, Complete Technology Pty Ltd v Toshiba (Australia) Pty Ltd (1994) 53 FCR 125; Austress v Marlin [2002] NSWSC 958 ; Chief Executive Officer of Customs v Neate (1998) 144 FLR 373; Black & Decker Inc v Flymo Ltd [1991] 1 WLR 753; In the Marriage of Crowe [1988] FLC 91-983 and Leaders Shoes (Aust) Pty Ltd v National Insurance Co of New Zealand Ltd [1968] 1 NSWR 344. As one would expect, Cadbury relies on these cases. Cadbury also relies on Liberty Funding (2005) 218 ALR 283, where the Full Court of the Federal Court considered this conflicting authority. Although the Full Court did not formally decide the issue, it did suggest that the proper approach must recognize the distinction between legal professional privilege and the implied undertaking (with respect to the implied undertaking, see [19-22] below). The Full Court's criticism of the Smoothdale line of cases (at [25]) was in the following terms: The difficulty with the approach in Smoothdale is highlighted by the approach of Barrett J in Austress Freyssinet Pty Ltd v Marlin International Pty Ltd [2002] NSWSC 958 in which his Honour distinguished cases such as Smoothdale on the basis that they were concerned with use in one proceedings of a statement or an affidavit filed and served in another. Barrett J, on the other hand, was dealing with the question whether a party could tender, as an admission, parts of an affidavit sworn by the opposing party in the same proceeding. Barrett J said, buttressed by ample authority, that this could be done, because it was within the range of permitted use the purpose of the proceedings. Barrett J was undoubtedly correct. Thus, it is necessary to posit a limited waiver, within a broad framework of the conduct of proceedings, which may bring about the result (as in Austress ) that it is in the other side's power to destroy the privilege entirely by putting the statement or affidavit into evidence or examining or cross-examining on its contents. (Emphasis added.) 16 What was said by the Full Court may or may not be regarded as being dicta. I need not decide that question. The decision in Liberty Funding (2005) 218 ALR 283 was a decision of the Full Court of the Federal Court. The reasoning, if I may say so, is both persuasive and sensible. If it is conceded, as it must be, that a party upon whom a witness statement is served may use that statement in any way within the context of those proceedings (that is the whole reason why it is filed and served), it follows that it is conduct "inconsistent with the maintenance of the confidentiality which the privilege is intended to protect " ( Mann v Carnell [1999] HCA 66 ; (1999) 201 CLR 1 at [29] ) and an implied waiver of privilege has occurred. Indeed, if one follows the Full Court's reasoning to its logical conclusion, the filing and service operates as a complete, not simply limited, waiver of legal privilege. 21 A basic principle of Australian litigation is that parties give an implied undertaking to the court not to use any document produced to them in the course of litigation except in the context of that litigation: Esso Australia Resources Ltd v Plowman [1995] HCA 19 ; (1995) 183 CLR 10, 32, 36-37, 46; see also Harman v Secretary of State for the Home Department [1983] 1 AC 280. Where other courts have erred doctrinally is in failing to distinguish the implied undertaking analysis from the waiver analysis. The Full Court in Liberty Funding recognized this error when it stated (at [26]): " This so-called 'limited waiver' by service such that the privilege is waived only for the purpose of the legal proceedings in question might be seen to be no more than the operation of the implied undertaking dealt with in Harman ": Liberty Funding (2005) 218 ALR 283. In other words, the limitation on Visy's use of the witness proofs stems not from limitations to be inferred from the conduct of the ACCC in serving them, but in Visy's own obligations to the Court. 23 Moreover, even if the implied undertaking does not automatically give way, a party may still be released from it in the court's discretion upon showing "special circumstances": Liberty Funding (2005) 218 ALR 283 at [31]. Although Cadbury anticipated the implied undertaking issue in its written submissions in these proceedings, the ACCC did not address the implied undertaking in its submissions, nor was the issue fully ventilated in oral submissions by any party . Accordingly, the parties in the damages proceeding and the ACCC will be invited, though not required, to make further written and oral submissions about whether Visy's implied undertaking in the ACCC proceedings prevents Visy producing the Category II and Category III documents and, if the implied undertaking is not overridden, whether Visy should be released from it. 24 I now turn to the ACCC's separate claim of public interest immunity with respect to 8 of the 111 witness proofs, the Category III documents.


case_text: The High Court looked at an aspect of waiver of legal professional privilege in Mann v Carnell [1999] HCA 66 ; (1999) 201 CLR 1. The test applied there was whether there was " conduct inconsistent with the maintenance of the confidentiality which the privilege is intended to protect ": Mann v Carnell [1999] HCA 66 ; (1999) 201 CLR 1 at [29] . The High Court has not looked directly at the immediate question now in issue. And decisions of trial and intermediate courts both pre and post Mann v Carnell have looked at the question but have not spoken with one voice. On the one hand, there is a body of authority supporting the proposition that " statements or affidavits filed and served in proceedings, but not read in open court, remain ... subject to legal professional privilege ": Liberty Funding Pty Ltd v Phoenix Capital Ltd (2005) 218 ALR 283 at [15] (citing Nilsen Industrial Electronics Pty Ltd v National Semiconductor Corporation (1994) 48 FCR 337; State Bank of South Australia v Smoothdale Ltd (No 2) (1995) 64 SASR 224; Akins v Abigroup Ltd (1998) 43 NSWLR 539; Sevic v Roarty [1998] NSWSC 462 ; (1998) 44 NSWLR 287); Spotless Group Ltd v Premier Building & Consulting Pty Ltd [2006] VSCA 201 ; AMP Financial Planning Pty Ltd v CGU Insurance Ltd [2004] FCA 1196 ; Polyaire Pty Ltd v K-Aire Pty Ltd (2003) 226 LSJS 109 and ACCC v Telstra Corp Ltd [2000] FCA 28 ; (2000) 96 FCR 317. 16 What was said by the Full Court may or may not be regarded as being dicta. I need not decide that question. The decision in Liberty Funding (2005) 218 ALR 283 was a decision of the Full Court of the Federal Court. The reasoning, if I may say so, is both persuasive and sensible. If it is conceded, as it must be, that a party upon whom a witness statement is served may use that statement in any way within the context of those proceedings (that is the whole reason why it is filed and served), it follows that it is conduct "inconsistent with the maintenance of the confidentiality which the privilege is intended to protect " ( Mann v Carnell [1999] HCA 66 ; (1999) 201 CLR 1 at [29] ) and an implied waiver of privilege has occurred. Indeed, if one follows the Full Court's reasoning to its logical conclusion, the filing and service operates as a complete, not simply limited, waiver of legal privilege. 18 This is not to say that there could never be something less than a full waiver of privilege; rather, the point is that for there to be only a limited waiver, the original holder must still retain full control as to further dissemination of the document. So, for example, providing a witness statement to a party but subject to conditions that the party may use it only for internal purposes, may not read it in court, may not place it into evidence and may not otherwise rely on it in examination or the proceedings generally might constitute a limited waiver only: see Goldberg v Ng [1995] HCA 39 ; (1995) 185 CLR 83, 96 (stating that the waiver "can be limited so that it applies only in relation to particular persons, materials or purposes" ); Goldman v Hesper [1988] 3 All ER 97 (cited in Mann v Carnell [1999] HCA 66 ; (1988) 201 CLR 1 at [29] for the proposition that disclosure "for a limited and specific purpose" will not lead to loss of the privilege).


case_title: Mitsubishi Electric Australia Pty Ltd v Victorian Work Cover Authority [2002] VSCA 59 ; (2002) 4 VR 332


case_title: Nilsen Industrial Electronics Pty Ltd v National Semiconductor Corporation (1994) 48 FCR 337


case_title: O'Reilly v State Bank of Victoria Commissioners [1982] HCA 74 ; (1983) 153 CLR 1

case_text: It is at this point that the doctrinal relationship between the advice and litigation branches of the privilege becomes relevant. As McLure JA noted in Leighton , the " High Court has made numerous general statements which, on their face, are capable of applying to all categories of legal professional privilege, to the effect that the privilege only attaches to confidential communications ": Leighton [2007] WASCA 151 at [22] . In fact, some of those general statements can be fairly read to support the view that confidentiality is required for all categories of legal professional privilege. For example, in remarks quoted by Brennan CJ in Propend [1997] HCA 3 ; (1997) 188 CLR 501 (at 508-09), Mason J stated in O'Reilly v State Bank of Victoria [1982] HCA 74 ; (1983) 153 CLR 1 at 22-23: But if communications in written form are to be privileged they must still be confidential communications between solicitor and client made for the purpose of advice or for the purpose of use in existing or anticipated litigation. Be that as it may, I agree with McLure JA that the High Court has never squarely confronted the issue, leaving the field open for lower courts to take opposing views.


case_title: Patrick v Capital Finance Pty Ltd (No 4) [2003] FCA 436

case_text: Depending on whether the restrictions on Visy's use of the witness proofs is sourced doctrinally to the legal professional privilege of the ACCC or, instead, the implied undertaking, is vital. It is vital because the implied undertaking is not absolute but the privilege is. The Plowman Court in dicta stated (at 33): No doubt the implied obligation must yield to inconsistent statutory provisions and to the requirements of curial process in other litigation, eg, discovery and inspection, but that circumstance is not a reason for denying the existence of the implied obligation. In Patrick v Capital Finance Pty Ltd (No4) [2003] FCA 436 at [15] - [22] , these dicta were applied in support of the proposition that a party is released from the implied undertaking when faced with a conflicting discovery obligation in a subsequent litigation.


case_text: The High Court looked at an aspect of waiver of legal professional privilege in Mann v Carnell [1999] HCA 66 ; (1999) 201 CLR 1. The test applied there was whether there was " conduct inconsistent with the maintenance of the confidentiality which the privilege is intended to protect ": Mann v Carnell [1999] HCA 66 ; (1999) 201 CLR 1 at [29] . The High Court has not looked directly at the immediate question now in issue. And decisions of trial and intermediate courts both pre and post Mann v Carnell have looked at the question but have not spoken with one voice. On the one hand, there is a body of authority supporting the proposition that " statements or affidavits filed and served in proceedings, but not read in open court, remain ... subject to legal professional privilege ": Liberty Funding Pty Ltd v Phoenix Capital Ltd (2005) 218 ALR 283 at [15] (citing Nilsen Industrial Electronics Pty Ltd v National Semiconductor Corporation (1994) 48 FCR 337; State Bank of South Australia v Smoothdale Ltd (No 2) (1995) 64 SASR 224; Akins v Abigroup Ltd (1998) 43 NSWLR 539; Sevic v Roarty [1998] NSWSC 462 ; (1998) 44 NSWLR 287); Spotless Group Ltd v Premier Building & Consulting Pty Ltd [2006] VSCA 201 ; AMP Financial Planning Pty Ltd v CGU Insurance Ltd [2004] FCA 1196 ; Polyaire Pty Ltd v K-Aire Pty Ltd (2003) 226 LSJS 109 and ACCC v Telstra Corp Ltd [2000] FCA 28 ; (2000) 96 FCR 317.


case_text: It is sufficient for present purposes to begin by stating that in order to maintain a claim of legal professional privilege, a proponent must demonstrate the communication is protected by "advice privilege" or "litigation privilege." The relationship between the two types of legal professional privilege is just one of the matters that is unclear in Australian privilege law. Some cases support the proposition that "litigation privilege is a separate category of legal professional privilege ": Public Transport Authority of Western Australia v Leighton Contractors Pty Ltd [2007] WASCA 151 at [18] ; See also R v King [2007] 2 NZLR 137; Westgold Resources NL v St Barbara Mines Ltd [2007] WASC 47 ; Mitsubishi Electric Australia Pty Ltd v Victorian Work Cover Authority [2002] VSCA 59 ; (2002) 4 VR 332; Southern Equities Corporation Ltd v West Australian Government Holdings Ltd (1993) 10 WAR 1 and Dingle v Commonwealth Development Bank of Australia (1989) 23 FCR 63. On the other hand, it is also true that the " High Court has yet to make clear whether litigation privilege has an existence and rationale distinct from the advice privilege ": eg, Leighton [2007] WASCA 151 at [20] ; AWB Ltd v Cole [2006] FCA 571 ; (2006) 152 FCR 382; Ingot Capital Investments Pty Ltd v Macquarie Equity Capital Markets Ltd (2006) 67 NSWLR 91; Westpac Banking Corporation v 789Ten Pty Ltd (2005) 55 ACSR 519 and Pratt Holdings Pty Ltd v Commissioner of Taxation [2004] FCAFC 122 ; (2004) 136 FCR 357. 8 With respect to advice privilege it was, until recently, uncontroversial that the proponent had to establish three elements: (1) a confidential communication, (2) between a lawyer and client, (3) made for the dominant purpose of giving or receiving legal advice: see Commissioner of Australian Federal Police v Propend Finance Pty Ltd [1997] HCA 3 ; (1997) 188 CLR 501, 508-09 (stating that a confidential lawyer-client relationship is required) and Esso Australia Resources Ltd v Commissioner of Taxation (Cth) [1999] HCA 67 ; (1999) 201 CLR 49 at [61] (adopting the dominant purpose test). The Full Court of the Federal Court has now dispensed with the second requirement, holding that third-party communications may come within the ambit of advice privilege: Pratt Holdings [2004] FCAFC 122 ; (2004) 136 FCR 357 at [49] , and [105]. 10 With respect to litigation privilege, on the other hand, the analysis is not so simple. It is clear that the privilege applies only to documents or communications if they are made or prepared (1) in anticipation of litigation (or during pending litigation) and (2) for the purpose of the litigation (eg, with a view to obtaining legal advice or evidence for use in the litigation): Leighton [2007] WASCA 151 at [12] . (That the documents in question here were all prepared at a time when litigation was anticipated or on foot was common ground.) A lawyer-client relationship is not required: Pratt Holdings [2004] FCAFC 122 ; (2004) 136 FCR 357. However, in contrast to the settled confidentiality requirement of the advice privilege, the authorities are divided as to whether litigation privilege may attach to communications (or documents summarizing communications) between a third-party, independent witness and a client even where they are not confidential: State of New South Wales v Jackson [2007] NSWCA 179 at [37] ( "There is some controversy over the need for confidentiality in litigation privilege at common law, and the controversy is particularly material to privilege for communications between client and third party" ); Leighton [2007] WASCA 151 at [21] - [30] (collecting and summarizing the conflicting authorities). The picture becomes even more complicated if one makes a further distinction, as some authorities do, based on whether such witness statements are found in the hands of the witness or in the hands of the lawyer: A Ligertwood, Australian Evidence (4 th ed) at 291-92, quoted in Leighton [2007] WASCA 151 at [26] . 40 In Trade Practices Commission v Sterling (1979) 36 FLR 244, 246, Lockhart J described the litigation privilege rule as follows: Communications passing between the party and a third person (who is not the agent of the solicitor to receive the communication from the party) if they are made with reference to litigation either anticipated or commenced, and at the request or suggestion of the party's solicitor; or, even without any such request or suggestion, they are made for the purpose of being put before the solicitor with the object of obtaining his advice or enabling him to prosecute or defend an action. See also ACCC v FFE Building Services [2003] ATPR 41-967 at [24]-[33]; Leighton [2007] WASCA 151 at [12] ; Pratt Holdings [2004] FCAFC 122 ; (2004) 136 FCR 357 at [1] , [89] and [96].


case_text: It is sufficient for present purposes to begin by stating that in order to maintain a claim of legal professional privilege, a proponent must demonstrate the communication is protected by "advice privilege" or "litigation privilege." The relationship between the two types of legal professional privilege is just one of the matters that is unclear in Australian privilege law. Some cases support the proposition that "litigation privilege is a separate category of legal professional privilege ": Public Transport Authority of Western Australia v Leighton Contractors Pty Ltd [2007] WASCA 151 at [18] ; See also R v King [2007] 2 NZLR 137; Westgold Resources NL v St Barbara Mines Ltd [2007] WASC 47 ; Mitsubishi Electric Australia Pty Ltd v Victorian Work Cover Authority [2002] VSCA 59 ; (2002) 4 VR 332; Southern Equities Corporation Ltd v West Australian Government Holdings Ltd (1993) 10 WAR 1 and Dingle v Commonwealth Development Bank of Australia (1989) 23 FCR 63. On the other hand, it is also true that the " High Court has yet to make clear whether litigation privilege has an existence and rationale distinct from the advice privilege ": eg, Leighton [2007] WASCA 151 at [20] ; AWB Ltd v Cole [2006] FCA 571 ; (2006) 152 FCR 382; Ingot Capital Investments Pty Ltd v Macquarie Equity Capital Markets Ltd (2006) 67 NSWLR 91; Westpac Banking Corporation v 789Ten Pty Ltd (2005) 55 ACSR 519 and Pratt Holdings Pty Ltd v Commissioner of Taxation [2004] FCAFC 122 ; (2004) 136 FCR 357. 10 With respect to litigation privilege, on the other hand, the analysis is not so simple. It is clear that the privilege applies only to documents or communications if they are made or prepared (1) in anticipation of litigation (or during pending litigation) and (2) for the purpose of the litigation (eg, with a view to obtaining legal advice or evidence for use in the litigation): Leighton [2007] WASCA 151 at [12] . (That the documents in question here were all prepared at a time when litigation was anticipated or on foot was common ground.) A lawyer-client relationship is not required: Pratt Holdings [2004] FCAFC 122 ; (2004) 136 FCR 357. However, in contrast to the settled confidentiality requirement of the advice privilege, the authorities are divided as to whether litigation privilege may attach to communications (or documents summarizing communications) between a third-party, independent witness and a client even where they are not confidential: State of New South Wales v Jackson [2007] NSWCA 179 at [37] ( "There is some controversy over the need for confidentiality in litigation privilege at common law, and the controversy is particularly material to privilege for communications between client and third party" ); Leighton [2007] WASCA 151 at [21] - [30] (collecting and summarizing the conflicting authorities). The picture becomes even more complicated if one makes a further distinction, as some authorities do, based on whether such witness statements are found in the hands of the witness or in the hands of the lawyer: A Ligertwood, Australian Evidence (4 th ed) at 291-92, quoted in Leighton [2007] WASCA 151 at [26] . 11 It is at this point that the doctrinal relationship between the advice and litigation branches of the privilege becomes relevant. As McLure JA noted in Leighton , the " High Court has made numerous general statements which, on their face, are capable of applying to all categories of legal professional privilege, to the effect that the privilege only attaches to confidential communications ": Leighton [2007] WASCA 151 at [22] . In fact, some of those general statements can be fairly read to support the view that confidentiality is required for all categories of legal professional privilege. For example, in remarks quoted by Brennan CJ in Propend [1997] HCA 3 ; (1997) 188 CLR 501 (at 508-09), Mason J stated in O'Reilly v State Bank of Victoria [1982] HCA 74 ; (1983) 153 CLR 1 at 22-23: But if communications in written form are to be privileged they must still be confidential communications between solicitor and client made for the purpose of advice or for the purpose of use in existing or anticipated litigation. Be that as it may, I agree with McLure JA that the High Court has never squarely confronted the issue, leaving the field open for lower courts to take opposing views. 31 That the speculation regarding witness reluctance is likely to be unfounded is further supported by the fact, acknowledged by counsel for the ACCC, that even if production of the Category III documents were barred, Cadbury would be free to undertake its own investigation. As noted by McLure JA in Leighton , " Privilege in respect of [the disputed] communications would not prevent the respondent interviewing [third-party] witnesses and obtaining all relevant information from them concerning the issues in the litigation ": Leighton [2007] WASCA 151 at [31] . It is perhaps, therefore, unsurprising that counsel for the ACCC ultimately fell back on a "free rider" argument - that is, that Cadbury should not have the benefit of the ACCC's work precisely because it could easily do the work itself. This argument fails for two reasons. 33 Second, the "free rider" argument fails because it is, ultimately, founded on a theory of "work product" privilege not accepted in Australia. The work product doctrine, recognized by the United States Supreme Court, states that information or material prepared by attorneys reflecting attorney mental impressions, strategy, or other "work product," even though not documenting lawyer-client communications or otherwise within the ambit of ordinary legal professional privilege, may be independently protected from discovery: Hickman v Taylor (1947) 329 US 495. The problem for the ACCC, however, is that work product is not recognized in Australia as an independent head of privilege: Commissioner of Propend [1997] HCA 3 ; (1997) 188 CLR 501 at 570 (describing the US work product doctrine as part of general privilege law in Australia) (Gummow J); Leighton [2007] WASCA 151 at [17] (stating in Australia that the work product doctrine is recognised in the context of the litigation privilege). The ACCC itself has acknowledged this state of affairs: ACCC Position Paper, "Review of Leniency Policy for Cartel Conduct" (26 August 2005) at 19 n 21, available at http://www.accc.gov.au/content/item.phtml?itemId=725616&nodeId=3a1faa8ec1e755f25adef02560676bf5&fn=Leniency%20position%20paper.pdf (viewed 1 February 2008). 40 In Trade Practices Commission v Sterling (1979) 36 FLR 244, 246, Lockhart J described the litigation privilege rule as follows: Communications passing between the party and a third person (who is not the agent of the solicitor to receive the communication from the party) if they are made with reference to litigation either anticipated or commenced, and at the request or suggestion of the party's solicitor; or, even without any such request or suggestion, they are made for the purpose of being put before the solicitor with the object of obtaining his advice or enabling him to prosecute or defend an action. See also ACCC v FFE Building Services [2003] ATPR 41-967 at [24]-[33]; Leighton [2007] WASCA 151 at [12] ; Pratt Holdings [2004] FCAFC 122 ; (2004) 136 FCR 357 at [1] , [89] and [96]. 44 In this regard, Amcor's solicitor Mr Meadows testified that his firm, Allens Arthur Robinson, was " permitted to advise Amcor [based on knowledge it obtained in witness interviews summarized in the documents now at issue] subject to any confidentiality constraints that had been agreed ." He added that the firm's copies were not being retained " for the ACCC ." Thus the argument might go that while Amcor may have been (and may still be) under some equitable or quasi-contractual obligation of confidentiality (ie it may not be free to simply distribute the documents as it sees fit), that cannot override the obligations of compulsory court process in this case: see Leighton [2007] WASCA 151 at [28] (stating that contractual or equitable duties cannot prevail over compulsory court process). 45 To restate the question, it comes down to this: did the ACCC, in allowing Amcor via its solicitors to make and retain copies of the Category I documents, engage in conduct impliedly waiving its privilege? To answer the question, I return to the analysis employed earlier at [15]-[18]. In contrast to the Category II and III documents, with respect to which the ACCC ceded complete control over disclosure to Visy by filing and serving the documents, the evidence with respect to Category I was that the use to which Amcor's solicitors could put the documents was limited to one purpose and one purpose only: advising the client. Indeed, as noted earlier, the three documents drafted by Amcor's solicitors could not even be shown to Amcor. The disclosure to Amcor was for a "limited and specific purpose" (advice to the client) and "applies only in relation to particular persons and materials" . Amcor employees were the particular persons. The materials were the communications and documents recording them. The ACCC's conduct in allowing copies of the documents to be made and retained constitutes only a limited waiver: see [18] above. It follows that the Category I documents are barred from production to Cadbury. 46 Strictly speaking, I need go no further. However, I think it appropriate before concluding to make a general observation about the ACCC's overall interest in this case and whether the courts are the appropriate forum for its resolution. The ACCC's submissions and the evidence from its witnesses demonstrated a concern that the increasing threat of private suits for damages brought by cartel victims will interfere with the ACCC's ability to obtain the cooperation from cartel participants necessary for it to bring and prosecute penalty actions. The interference was said to arise because potential cooperators will be deterred from coming forward, notwithstanding offers of leniency, by the prospect of having essentially given away the store in the inevitable damages actions. In other words, in considering whether to confess, the potential costs in damages may be seen by a cartel player to outweigh the potential savings in penalties. Distilling the point still further, one can see that the real concern of the ACCC - that is, the real deterrent to cooperation faced by the Amcors of the world - is damages exposure itself. In my view, the confidentiality and free-rider arguments ostensibly advanced here by the ACCC are, at best, a proxy for that concern, and at worst a smokescreen obscuring it. To be fair, the appropriate total level of private civil liability (ie, penalties plus damages) an actor should face for cartel conduct is a valid issue, and one which was long ago recognized by authorities and commentators in the United States in the context of cooperation and leniency: see eg, Giancarlo Spagnolo, "Leniency and Whistleblowers in Antitrust," Centre for Economic Policy Research Discussion Paper Series No. 5794 (August 2006) at 15, available at http://www.cepr.org/pubs/dps/DP5794.asp (visited 11 February 2008). 47 But to acknowledge the ACCC's concern is not to approve of its proposed method for resolving that concern. On the contrary, the ACCC's attempt to use common law privilege doctrine to protect cooperators when they are faced with private suits for damages, albeit partially successful here, appears to me to be misguided. Whether cartel whistleblowers such as Amcor or those who cooperate with the regulators after the commencement of penalty proceedings (either by settling like Visy or in some other manner) should be rewarded or encouraged by reduced exposure or enhanced protection in damages proceedings is a broad question of policy that should be addressed by the legislature, not by ad hoc judicial tinkering through the backdoor of privilege. 48 The parties and the Australian Competition and Consumer Commission may, if they wish, file and serve written submissions of not more than 10 pages as to: (1) whether Visy is still bound not to produce the Category II and Category III documents by its implied undertaking in the ACCC proceedings; and (2) if so, whether special circumstances exist such that the Court in its discretion ought to release Visy from that undertaking. The matter will be set down for further hearing, if necessary, at a date to be fixed in consultation with the parties. I certify that the preceding forty-eight (48) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Gordon. Associate: Dated: 19 February 2008 Counsel for the Applicant: Mr M Wyles Mr R Peters Mr A Pound Solicitor for the Applicant: Mallesons Stephen Jaques Counsel for the Respondents: Mr P Anastassiou SC Solicitor for the Respondents: Allens Arthur Robinson Counsel for the Cross-Respondents: Mr P Crutchfield Solicitor for the Cross-Respondents: Arnold Bloch Leibler Counsel for the ACCC: Mr N O'Bryan SC Mr P Gray Solicitor for the ACCC: Australian Government Solicitor Date of Hearing: 12, 13 and 20 December 2007 Date of Judgment: 19 February 2008 APPENDIX A CATEGORY I DOCUMENTS (*=Document Date Estimated) Document ID Document Description Date A.119.004.0161 Draft witness statement prepared by Amcor's external lawyers 01-Jan-2005* A.119.004.0137 Draft witness statement prepared by Amcor's external lawyers 29-Jun-2005* A.119.004.0157 Draft witness statement prepared by Amcor's external lawyers 22-Jul-2005 A.119.004.0335 Draft witness statement prepared by the ACCC 01-Jan-2007* A.119.004.0028 Draft witness statement prepared by the ACCC 01-Jun-2007* A.119.004.0048 Draft witness statement prepared by the ACCC 14-Jun-2007 CATEGORY II DOCUMENTS (^ =Document is also in Category III) Document ID Document Description Date WP.ALL.0001 Unsigned Proof of Evidence of Bruce Allender Undated WP.AMO.0001 Unsigned Proof of Evidence of Jason Amos Undated WP.AND.0001 Unsigned Proof of Evidence of Christopher John Anderson Undated WP.ARH.0001 Unsigned Proof of Evidence of Tamara Arhontissas Undated WP.BAK.0001 Unsigned Proof of Evidence of Jan Dirk Bakker Undated WP.BAM.0001 Unsigned Proof of Evidence of Bernard Norman Bambling Undated WP.BAR.0001 Unsigned Proof of Evidence of Paul Andrew Barbagallo Undated WP.BOE.0001 Unsigned Proof of Evidence of Raymond Boef Undated WP.BOR.0001 Unsigned Proof of Evidence of Joseph Borg Undated ^ WP.BRI.0001 Unsigned Proof of Evidence of Peter Briscoe Undated ^ WP.BRO.0001 Unsigned Proof of Evidence of Peter James Brown Undated WP.CHI.0001 Unsigned Proof of Evidence of Steve Wayne Childs Undated ^ WP.CLA.0001 Unsigned Proof of Evidence of Colin Clayton Undated WP.COM.0001 Unsigned Proof of Evidence of Alexander Stephen Commins Undated WP.CRE.0001 Unsigned Proof of Evidence of Barry Kenneth Crees Undated WP.DAP.0001 Unsigned Proof of Evidence of David Da Pra Undated WP.DAV.0001 Unsigned Proof of Evidence of Colin Davis Undated WP.DRI.0001 Unsigned Proof of Evidence of David James Driver Undated WP.DUR.0001 Unsigned Proof of Evidence of Rick David Duri Undated WP.DWA.0001 Unsigned Proof of Evidence of Peter Ernst Dwan Undated WP.FIN.0001 Unsigned Proof of Evidence of Peter Archie Finlayson Undated WP.FOR.0001 Unsigned Proof of Evidence of Paul Manning Foran Undated WP.FRI.0001 Unsigned Proof of Evidence of Andrew Richard Frick Undated WP.FRO.0001 Unsigned Proof of Evidence of Geoffrey Frost Undated WP.FYF.0001 Unsigned Proof of Evidence of Daniel Charles Fyffe Undated WP.GHK.0001 Unsigned Proof of Evidence of Greig Howard Kely Undated WP.GOD.0001 Unsigned Proof of Evidence of Noel Godfrey Undated WP.GOO.0001 Unsigned Proof of Evidence of Kevin Peter Goos Undated WP.HAG.0001 Unsigned Proof of Evidence of John Hagget Undated WP.HAM.0001 Unsigned Proof of Evidence of Ian Alexander Hamilton Undated WP.HEE.0001 Unsigned Proof of Evidence of Ron Hee Undated WP.HEN.0001 Unsigned Proof of Evidence of David Alan Henry Undated WP.HET.0001 Unsigned Proof of Evidence of Kim James Hetherington Undated WP.HIB.0001 Unsigned Proof of Evidence of Maurice Hibbert Undated WP.HKL.0001 Unsigned Proof of Evidence of Hock Kee Lee Undated WP.HOD.0001 Unsigned Proof of Evidence of James George Hodgson Undated WP.HOD.0022 Unsigned Proof of Evidence of James George Hodgson Undated WP.HOL.0001 Unsigned Proof of Evidence of Craig Anthony Holihan Undated WP.JAC.0001 Unsigned Proof of Evidence of Helen Jackson Undated WP.JOH.0001 Unsigned Proof of Evidence of Kerry Maxwell Johnston Undated ^ WP.JON.0001 Unsigned Proof of Evidence of Russell Haydn Jones Undated WP.KAV.0001 Unsigned Proof of Evidence of Michael Kavanagh Undated WP.KEI.0001 Unsigned Proof of Evidence of John Robert Keir Undated WP.KIL.0001 Unsigned Proof of Evidence of David Kilpatrick Undated WP.KIN.0001 Unsigned Proof of Evidence of John Daniel King Undated WP.KOC.0001 Unsigned Proof of Evidence of David Koch Undated ^ WP.LAI.0001 Unsigned Proof of Evidence of Edward Maxwell Laidlaw Undated WP.LAW.0001 Unsigned Proof of Evidence of John Stanley Law Undated WP.LEE.0001 Unsigned Proof of Evidence of Robert Charles Lee Undated WP.LEW.0001 Unsigned Proof of Evidence of Stephen Frederick Lewis Undated WP.LEX.0001 Unsigned Proof of Evidence of Lex Triffitt Undated WP.LEY.0001 Unsigned Proof of Evidence of Nicholas Leywood Undated WP.MAN.0001 Unsigned Proof of Evidence of Hamish Robert Stanley Manks Undated WP.MAR.0001 Unsigned Proof of Evidence of Daniel Patrick Marshall Undated WP.MCG.0001 Unsigned Proof of Evidence of Paul McGlone Undated WP.MCK.0001 Unsigned Proof of Evidence of Paul Fraser McKee Undated WP.MCS.0001 Unsigned Proof of Evidence of John McShera Undated WP.MEA.0001 Unsigned Proof of Evidence of Gary Meadows Undated WP.MEN.0001 Unsigned Proof of Evidence of Robert David Mense Undated WP.MEZ.0001 Unsigned Proof of Evidence of Avrilia Mezzatesta Undated WP.MID.0001 Unsigned Proof of Evidence of Alfred Wayne Middleton Undated WP.MIL.0001 Unsigned Proof of Evidence of Zane Mills Undated WP.MIM.0001 Unsigned Proof of Evidence of Lou Matthew Mimmo Undated WP.MLW.0001 Unsigned Proof of Evidence of Marvin Louis Weinman Undated WP.MOL.0001 Unsigned Proof of Evidence of Megan Stacy Molenaar Undated WP.MUT.0001 Unsigned Proof of Evidence of Tavis Gilbert Mutch Undated WP.NEE.0001 Unsigned Proof of Evidence of Ian Andrew Neeland Undated WP.OLE.0001 Unsigned Proof of Evidence of John O'Leary Undated WP.OLS.0001 Unsigned Proof of Evidence of Lawrence Olsen Undated WP.OSU.0001 Unsigned Proof of Evidence of Anthony O'Sullivan Undated WP.PAD.0001 Unsigned Proof of Evidence of Samuel Rhandiyanto Padibjo Undated WP.PAF.0001 Unsigned Proof of Evidence of Paul Anthony Pafumi Undated WP.PAN.0001 Unsigned Proof of Evidence of Maria Pierina Pannacchione Undated WP.PAR.0001 Unsigned Proof of Evidence of Mario Lino Parisi Undated WP.PEL.0001 Unsigned Proof of Evidence of Robert Pellizzari Undated WP.POL.0001 Unsigned Proof of Evidence of Barry John Pollard Undated WP.POT.0001 Unsigned Proof of Evidence of Thomas Charles Potter Undated WP.PRE.0001 Unsigned Proof of Evidence of Murray Roy Prebble Undated WP.PRI.0001 Unsigned Proof of Evidence of Remy Anthony Pribilovics Undated ^ WP.PYN.0001 Unsigned Proof of Evidence of Robin James Pyne Undated WP.REI.0001 Unsigned Proof of Evidence of Gary Charles Reid Undated WP.RGB.0001 Unsigned Proof of Evidence of Ronald Gary Brown Undated WP.RIL.0001 Unsigned Proof of Evidence of Howard Riley Undated WP.RIV.0001 Unsigned Proof of Evidence of Martin Paul Rivers Undated ^ WP.ROB.0001 Unsigned Proof of Evidence of Darryl Francis Roberts Undated WP.ROS.0001 Unsigned Proof of Evidence of Andrew Malcolm Ross Undated WP.SAN.0001 Unsigned Proof of Evidence of Ian Russell Sangster Undated WP.SCA.0001 Unsigned Proof of Evidence of Michael Scammel Undated WP.SFM.0001 Unsigned Proof of Evidence of Shane Francis Moloughney Undated WP.SIL.0001 Unsigned Proof of Evidence of Peter Sillcock Undated WP.SIR.0001 Unsigned Proof of Evidence of Michael Sirakoff Undated WP.SMA.0001 Unsigned Proof of Evidence of Ian Gregory Smallwood Undated WP.SMI.0001 Unsigned Proof of Evidence of Caroline Elizabeth Smith Undated WP.STR.0001 Unsigned Proof of Evidence of James Strangio Undated ^ WP.SUT.0001 Unsigned Proof of Evidence of Peter Richard Sutton Undated WP.THO.0001 Unsigned Proof of Evidence of Fyfe Wrixen Thorpe Undated WP.TIT.0001 Unsigned Proof of Evidence of John David Titus-Rees Undated WP.TRE.0001 Unsigned Proof of Evidence of Ronald James Treffene Undated WP.TRI.0001 Unsigned Proof of Evidence of Michael Trinnie Undated WP.TUF.0001 Unsigned Proof of Evidence of Peter David Tuffs Undated WP.TYS.0001 Unsigned Proof of Evidence of Craig Eric Tyson Undated WP.VAN.0001 Unsigned Proof of Evidence of Stefan Van Den Broeke Undated WP.WAR.0001 Unsigned Proof of Evidence of Stephen David Warnett Undated WP.WAT.0001 Unsigned Proof of Evidence of David Watkins Undated WP.WEG.0001 Unsigned Proof of Evidence of Barry William Wegmann Undated WP.WEI.0001 Unsigned Proof of Evidence of Jack Chung Ming Wei Undated WP.WIL.0001 Unsigned Proof of Evidence of Guy Alexander John Wilson Undated WP.WIT.0001 Unsigned Proof of Evidence of Russell Keith Witcombe Undated WP.WOO.0001 Unsigned Proof of Evidence of Paul Wootten Undated WP.YAT.0001 Unsigned Proof of Evidence of Michael Yates Undated WP.ZAC.0001 Unsigned Proof of Evidence of Alexander Zacaropoulos Undated AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback URL: http://www.austlii.edu.au/au/cases/cth/FCA/2008/88.html


case_title: R v King [2007] 2 NZLR 137


case_text: A court will not order the production of a document if disclosure of the document would be injurious to the public interest: Alister v The Queen [1983] HCA 45 ; (1984) 154 CLR 404; Sankey v Whitlam [1978] HCA 43 ; (1978) 142 CLR 1. The court must undertake a balancing test, considering "whether the public interest which requires that [a] document should not be produced outweighs the public interest that a court of justice in performing its functions should not be denied access to relevant evidence" : Sankey [1978] HCA 43 ; (1978) 142 CLR 1 at 38-39. As this formulation of the test makes clear, the onus is on the party seeking to prevent disclosure of a document.


case_title: Somerville v ASC (1995) 60 FCR 319

case_text: This onus has been described by Lindgren J as a "heavy burden" requiring the proponent of immunity to "establish a 'real' rather than merely 'some' or 'any' detriment to the public interest from disclosure" of the documents: Somerville v ASC (1995) 60 FCR 319 at 354. If the proponent cannot establish any such interest as a threshold matter, then the balancing test never arises, and the immunity claim will fail at the outset: As the High Court said in Alister v The Queen [1983] HCA 45 ; (1983) 154 CLR 404 at 412, " the balancing exercise ... can only be taken when it appears that both aspects of the public interest do require consideration " (Emphasis added).


case_title: Southern Equities Corporation Ltd v West Australian Government Holdings Ltd (1993) 10 WAR 1


case_text: The High Court looked at an aspect of waiver of legal professional privilege in Mann v Carnell [1999] HCA 66 ; (1999) 201 CLR 1. The test applied there was whether there was " conduct inconsistent with the maintenance of the confidentiality which the privilege is intended to protect ": Mann v Carnell [1999] HCA 66 ; (1999) 201 CLR 1 at [29] . The High Court has not looked directly at the immediate question now in issue. And decisions of trial and intermediate courts both pre and post Mann v Carnell have looked at the question but have not spoken with one voice. On the one hand, there is a body of authority supporting the proposition that " statements or affidavits filed and served in proceedings, but not read in open court, remain ... subject to legal professional privilege ": Liberty Funding Pty Ltd v Phoenix Capital Ltd (2005) 218 ALR 283 at [15] (citing Nilsen Industrial Electronics Pty Ltd v National Semiconductor Corporation (1994) 48 FCR 337; State Bank of South Australia v Smoothdale Ltd (No 2) (1995) 64 SASR 224; Akins v Abigroup Ltd (1998) 43 NSWLR 539; Sevic v Roarty [1998] NSWSC 462 ; (1998) 44 NSWLR 287); Spotless Group Ltd v Premier Building & Consulting Pty Ltd [2006] VSCA 201 ; AMP Financial Planning Pty Ltd v CGU Insurance Ltd [2004] FCA 1196 ; Polyaire Pty Ltd v K-Aire Pty Ltd (2003) 226 LSJS 109 and ACCC v Telstra Corp Ltd [2000] FCA 28 ; (2000) 96 FCR 317. 38 Instead, I understand Propend to say that a copy of a privileged document will also be privileged unless the privilege has been expressly or impliedly waived (although it may be that allowing a copy to be made in certain circumstances is capable of being conduct constituting such a waiver, such as when a copy is made and communicated to a third party for purposes not related to legal advice or litigation): cf Spotless Group Ltd v Premier Building Pty Ltd [2006] VSCA 201 at [60] - [66] (noting that Propend left the issue open but concluding that whether a copy of a privileged document is privileged is distinct from whether privilege has been waived). As such, Cadbury's argument, notwithstanding the way in which counsel sought to frame it, may be reduced to two questions: (1) are the documents privileged; and (2) has privilege been waived?


case_title: State of New South Wales v Jackson [2007] NSWCA 279

case_text: With respect to litigation privilege, on the other hand, the analysis is not so simple. It is clear that the privilege applies only to documents or communications if they are made or prepared (1) in anticipation of litigation (or during pending litigation) and (2) for the purpose of the litigation (eg, with a view to obtaining legal advice or evidence for use in the litigation): Leighton [2007] WASCA 151 at [12] . (That the documents in question here were all prepared at a time when litigation was anticipated or on foot was common ground.) A lawyer-client relationship is not required: Pratt Holdings [2004] FCAFC 122 ; (2004) 136 FCR 357. However, in contrast to the settled confidentiality requirement of the advice privilege, the authorities are divided as to whether litigation privilege may attach to communications (or documents summarizing communications) between a third-party, independent witness and a client even where they are not confidential: State of New South Wales v Jackson [2007] NSWCA 179 at [37] ( "There is some controversy over the need for confidentiality in litigation privilege at common law, and the controversy is particularly material to privilege for communications between client and third party" ); Leighton [2007] WASCA 151 at [21] - [30] (collecting and summarizing the conflicting authorities). The picture becomes even more complicated if one makes a further distinction, as some authorities do, based on whether such witness statements are found in the hands of the witness or in the hands of the lawyer: A Ligertwood, Australian Evidence (4 th ed) at 291-92, quoted in Leighton [2007] WASCA 151 at [26] .


case_text: To put the proposition in different terms, if " it is in the other side's power to destroy the privilege entirely ," (see [15] above) it can no longer be said that the original holder can reasonably expect any continued confidentiality. In such circumstances, the existence of the privilege cannot be made to turn on whether the other side in fact places the document into evidence or uses it for examination - either legal privilege exists or it does not, and either the client controls it or they do not: Telstra Corporation Ltd v Minister for Communications, Information Technology and the Arts (No 2) [2007] FCA 1445 at [21] ( "If a communication qualifies for legal professional privilege, the privilege is absolute. It cannot be overridden by some supposedly greater public interest. It can be waived by the person, the client entitled to it, and it can be overridden by statute, but it is otherwise absolute." ) In other words, once it is found that the original holder of the privilege cannot control further dissemination of the document, the privilege is destroyed as a matter of law without further inquiry into whether the communication was in fact disseminated.


case_text: In Trade Practices Commission v Sterling (1979) 36 FLR 244, 246, Lockhart J described the litigation privilege rule as follows: Communications passing between the party and a third person (who is not the agent of the solicitor to receive the communication from the party) if they are made with reference to litigation either anticipated or commenced, and at the request or suggestion of the party's solicitor; or, even without any such request or suggestion, they are made for the purpose of being put before the solicitor with the object of obtaining his advice or enabling him to prosecute or defend an action. See also ACCC v FFE Building Services [2003] ATPR 41-967 at [24]-[33]; Leighton [2007] WASCA 151 at [12] ; Pratt Holdings [2004] FCAFC 122 ; (2004) 136 FCR 357 at [1] , [89] and [96].


case_text: It is sufficient for present purposes to begin by stating that in order to maintain a claim of legal professional privilege, a proponent must demonstrate the communication is protected by "advice privilege" or "litigation privilege." The relationship between the two types of legal professional privilege is just one of the matters that is unclear in Australian privilege law. Some cases support the proposition that "litigation privilege is a separate category of legal professional privilege ": Public Transport Authority of Western Australia v Leighton Contractors Pty Ltd [2007] WASCA 151 at [18] ; See also R v King [2007] 2 NZLR 137; Westgold Resources NL v St Barbara Mines Ltd [2007] WASC 47 ; Mitsubishi Electric Australia Pty Ltd v Victorian Work Cover Authority [2002] VSCA 59 ; (2002) 4 VR 332; Southern Equities Corporation Ltd v West Australian Government Holdings Ltd (1993) 10 WAR 1 and Dingle v Commonwealth Development Bank of Australia (1989) 23 FCR 63. On the other hand, it is also true that the " High Court has yet to make clear whether litigation privilege has an existence and rationale distinct from the advice privilege ": eg, Leighton [2007] WASCA 151 at [20] ; AWB Ltd v Cole [2006] FCA 571 ; (2006) 152 FCR 382; Ingot Capital Investments Pty Ltd v Macquarie Equity Capital Markets Ltd (2006) 67 NSWLR 91; Westpac Banking Corporation v 789Ten Pty Ltd (2005) 55 ACSR 519 and Pratt Holdings Pty Ltd v Commissioner of Taxation [2004] FCAFC 122 ; (2004) 136 FCR 357.