Case: Arrow Pharmaceuticals Ltd v Merck &amp; Co Inc (2004) 210 ALR 593
Outcome: cited
was no great disagreement between counsel as to the principles to be applied in this matter. One threshold matter needs to be considered, namely, the operation, if any, of O 33 r 11 of the Federal Court Rules . I was referred to the decision of Graham J in Seven Network Ltd v News Ltd [2005] FCA 864 at [57] [59] in which, in similar circumstances, it was held that O 33 r 11 would apply and doubt was cast upon what I had said in Arrow Pharmaceuticals Ltd v Merck &amp; Co Inc (2004) 210 ALR 593 at [10]. Leave to appeal against the decision of Graham J was granted and, although the appeal was dismissed, the Full Court made clear that O 33 r 11 did not operate at the point of pretrial production of documents, effectively overruling the decision of Graham J in that respect ( Seven Network Ltd v News Ltd [2005] FCAFC 125 ; (2005) 144 FCR 379). As this dispute is essentially about discovery and inspection it is clear, in my opinion, that the question of privilege is to be governed by the common law as defined in Esso Australia Resources Ltd v Commissioner of Taxation (Commonwealth) [1999] HCA 67 ; (1999) 201 CLR 49 rather than by the provisions of the Evidence Act 1995 (Cth). The classic statement of the dominant purpose test, which is now accepted, was that by Barwick CJ in Grant v Downs [1976] HCA 63 ; (1976) 135 CLR 674 (at 677): 'a document which was produced or brought into existence either with the dominant purpose of its author, or of the person or authority under whose direction, whether particular or general, it was produced or brought into existence, of using it or its contents in order to obtain legal advice or to conduct or aid in the conduct of litigation, at the time of its production in reasonable prospect, should be privileged and excluded from inspection.' The mere involvement of an internal lawyer in an investigation does not, of itself, establish that seeking legal advice is the dominant purpose of an investigation. Furthermore, in the present case, there has been no attempt to fully explain the precise position of the internal lawyer (cf Arrow at [14]). This is not a case in which it was inevitable that the material would be provided to an external lawyer for advice and was collected only for that purpose. Privilege has not been established for interviews up to preparation of the brief for the internal lawyer. On the other hand, formal signed statements were obtained after the matter was referred to the internal lawyer for preparation of the external brief. It can be inferred that these statements were obtained in aid of the brief for external advice then in preparation. I certify that the preceding fifteen (15) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Gyles. Associate: Dated: 19 October 2006 Counsel for the Applicants: Mr RM Goot SC with Mr MJ Heath Solicitor for the Applicants: Minter Ellison Lawyers Counsel for the Respondents: Mr JH Pearce Solicitor for the Respondents: Taylor &amp; Scott Date of Hearing: 4 October 2006 Date of Orders: 6 October 2006 Date of Reasons: 19 October 2006 AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback URL: http://www.austlii.edu.au/au/cases/cth/FCA/2006/1328.html