Case: Public Transport Authority of Western Australia v Leighton Contractors Pty Ltd [2007] WASCA 151
Outcome: discussed
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&amp;nodeId=3a1faa8ec1e755f25adef02560676bf5&amp;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