Case: Ryan v The Queen [2001] HCA 21 ; (2001) 206 CLR 267
Outcome: applied
In Ryan v The Queen [2001] HCA 21 ; (2001) 206 CLR 267 , McHugh J quoted with approval the following views of the eminent US jurist Dean Roscoe Pound (at [58]) (emphasis added): A single decision as an analogy, as a starting point to develop a principle, is a very different thing from the decision on a particular state of facts which announces a rule. When the court has that same state of facts before it, unless there is some very controlling reason, it is expected to adhere to the former decision. But when it gives [sic] further and endeavors to formulate a principle, stare decisis does not mean that the first tentative gropings for the principle ... are of binding authority. (Emphasis added) 8 As noted earlier, the Court has before it now one of the same documents as was before Heerey J in Visy No 2 and in respect of which again a claim of litigation privilege is made. Particularly where his Honour's judgment accepting the privilege claim over the Hodgson Interview transcript was upheld by the Full Court, I would expect to be presented with some very compelling reasons for departing from it. Cadbury has pointed to a number of contemporaneous documents comprising internal ACCC memoranda and notes as well as correspondence between the ACCC and Hodgson. It contends that this evidence, much of which was not before Heerey J, leads or should lead to different findings of fact and this provides a compelling reason to depart from the view taken in Visy No 2 . I disagree. 9 It is not necessary to recite the contents of the documents cited by Cadbury in detail; it suffices to say that they were put forward to establish (and do establish) two factual propositions: (1) that the decision to interview Hodgson was made prior to 15 December 2004; and (2) there was a great deal of discussion regarding whether and on what terms Hodgson would receive immunity in exchange for cooperation in the investigation and any subsequent legal proceedings ("the Immunity Question"). With respect to the first point, Cadbury did not appear to quibble with the proposition that the "in anticipation of litigation" prong of the privilege test turns on when the communication or document was actually generated rather than when the decision to create it was made. Rather, Cadbury contended that the evidence that the decision was taken prior to the date when litigation was found by Heerey J to have been reasonably anticipated supported the proposition that the interview could not have been made for the dominant purpose of the litigation. However that may be, I am independently satisfied based on Cadbury's own evidence, including the letters of 13 and 16 December 2004 (referred to below), that litigation was reasonably anticipated no later than 17 December 2004, the date of the Hodgson Interview. 10 On the Immunity Question, Cadbury made the following written and oral submissions regarding dominant purpose based on that evidence - namely, that there was no dominant purpose of the Hodgson interview, but rather a variety of purposes including: (1) to perform the interview directed by senior officials of the ACCC on 13 December 2004; (2) to obtain information from Hodgson to assist the investigation; (3) to obtain Hodgson's agreement to the conditions set out in the ACCC' s 16 December 2004 letter offering conditional immunity in exchange for cooperation; and (4) to confirm Hodgson's understanding that the offer of immunity was conditional. The first purpose described by Cadbury may be rejected out of hand - while the interview may have been conducted at the behest of senior ACCC personnel, one must of course ask why they made that order. 11 The third and fourth purposes ascribed to the interview by Cadbury must be rejected because they reflect a misapprehension of how dominant purpose is to be assessed. I would be prepared to accept that the correspondence shows that the dominant purpose (and possibly even sole purpose) of Hodgson in attending the 17 December 2004 interview was to obtain immunity. It is therefore unsurprising that the documents would reflect an understanding of this point by the ACCC and an attempt to respond to the interests of the interviewee.