Case: Commissioner of Australian Federal Police v Propend Finance Pty Ltd [1997] HCA 3 ; (1997) 188 CLR 501
Outcome: applied
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&amp;nodeId=3a1faa8ec1e755f25adef02560676bf5&amp;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.