Case: Seven Network Ltd and Another v News Ltd and Others [2005] FCAFC 125 ; (2005) 144 FCR 379
Outcome: applied
Counsel for Forestry Tasmania referred to the judgment of the Full Court in Seven Network Ltd and Another v News Ltd and Others [2005] FCAFC 125 ; (2005) 144 FCR 379 in support of the submission that O 33 r 11(5) did not operate in conjunction with the Evidence Act to apply to a call for documents during the course of a trial. 23 Counsel's reliance on Seven Network is misplaced. That case determined that O 33 r 11 did not apply to pre-trial proceedings but to the conduct of a hearing; see Branson J at [16] to [18] and Allsop J at [33]. The documents in question in the current proceedings were called for during the conduct of the hearing. Accordingly, O 33 r 11 applies to them and O 33 r 13 may be availed of to compel their production; see Branson J at [17]. 24 Counsel for Forestry Tasmania also referred to the rule making power of this Court under s 59 of the Federal Court of Australia Act 1976 (Cth). That section empowers Judges of this Court or a majority of them to make rules of Court "making provision for or in relation to the practice and procedure to be followed in the Court". Order 33 rule 11 is within the rule making power of this Court set out in s 59 of the Federal Court of Australia Act . Order 33 rule 11 is a provision concerning practice and procedure. One only needs to set out the provision in full to make good that point: "[Order 33 rule] 11 Privilege (1) Where the Court, by subpoena or otherwise, orders any person to produce any document or thing, and any person makes and substantiates sufficient lawful objection to production on grounds of privilege, the Court shall not compel production of that document or thing except production to the Court for the purpose of ruling on the objection. (2) Where a question is put to a person in the course of examination, and any person makes and substantiates sufficient lawful objection on grounds of privilege to the question being answered, the Court shall not compel an answer to the question. (3) Subrule (1) applies where an order is made for production to, and subrule (2) applies where a question is put to a person in the course of examination before the Court or any officer of the Court, or any examiner, or other person authorized to receive evidence, whether on a trial or hearing or on any other occasion. (4) This rule does not affect any rule of law which authorizes or requires the withholding of any document or thing or the refusal to answer any question on the ground that the disclosure of the document or thing or the answering of the question would be injurious to the public interest. (5) In this rule: ground of privilege means a ground on which a person may rely to make an objection under Part 3.10 of the Evidence Act 1995 ." 25 In any event, the claim for privilege if exercised purely in a common law context would fail. That is because the relevant communications are not from or to a legal adviser for the dominant purpose of providing legal services to a client in connection with legal proceedings. They are communications between witnesses designed to assist each other in the preparation of their witness statements.