mdroth/huggingface-course_section-5_zst huggingface dataset:
Case: Esso Australia Resources Ltd v Commissioner of Taxation (Cth) [1999] HCA 67 ; (1999) 201 CLR 49
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].
Case: Esso Australia Resources Ltd v Plowman [1995] HCA 19 ; (1995) 183 CLR 10
Outcome: discussed
A basic principle of Australian litigation is that parties give an implied undertaking to the court not to use any document produced to them in the course of litigation except in the context of that litigation: Esso Australia Resources Ltd v Plowman [1995] HCA 19 ; (1995) 183 CLR 10, 32, 36-37, 46; see also Harman v Secretary of State for the Home Department [1983] 1 AC 280. Where other courts have erred doctrinally is in failing to distinguish the implied undertaking analysis from the waiver analysis. The Full Court in Liberty Funding recognized this error when it stated (at [26]): " This so-called 'limited waiver' by service such that the privilege is waived only for the purpose of the legal proceedings in question might be seen to be no more than the operation of the implied undertaking dealt with in Harman ": Liberty Funding (2005) 218 ALR 283. In other words, the limitation on Visy's use of the witness proofs stems not from limitations to be inferred from the conduct of the ACCC in serving them, but in Visy's own obligations to the Court. 22 Depending on whether the restrictions on Visy's use of the witness proofs is sourced doctrinally to the legal professional privilege of the ACCC or, instead, the implied undertaking, is vital. It is vital because the implied undertaking is not absolute but the privilege is. The Plowman Court in dicta stated (at 33): No doubt the implied obligation must yield to inconsistent statutory provisions and to the requirements of curial process in other litigation, eg, discovery and inspection, but that circumstance is not a reason for denying the existence of the implied obligation. In Patrick v Capital Finance Pty Ltd (No4) [2003] FCA 436 at [15] - [22] , these dicta were applied in support of the proposition that a party is released from the implied undertaking when faced with a conflicting discovery obligation in a subsequent litigation.
Case: Goldberg v Ng [1995] HCA 39 ; (1995) 185 CLR 83
Outcome: referred to
This is not to say that there could never be something less than a full waiver of privilege; rather, the point is that for there to be only a limited waiver, the original holder must still retain full control as to further dissemination of the document. So, for example, providing a witness statement to a party but subject to conditions that the party may use it only for internal purposes, may not read it in court, may not place it into evidence and may not otherwise rely on it in examination or the proceedings generally might constitute a limited waiver only: see Goldberg v Ng [1995] HCA 39 ; (1995) 185 CLR 83, 96 (stating that the waiver "can be limited so that it applies only in relation to particular persons, materials or purposes" ); Goldman v Hesper [1988] 3 All ER 97 (cited in Mann v Carnell [1999] HCA 66 ; (1988) 201 CLR 1 at [29] for the proposition that disclosure "for a limited and specific purpose" will not lead to loss of the privilege).
Case: Goldman v Hesper [1988] 3 All ER 97
Outcome: referred to
This is not to say that there could never be something less than a full waiver of privilege; rather, the point is that for there to be only a limited waiver, the original holder must still retain full control as to further dissemination of the document. So, for example, providing a witness statement to a party but subject to conditions that the party may use it only for internal purposes, may not read it in court, may not place it into evidence and may not otherwise rely on it in examination or the proceedings generally might constitute a limited waiver only: see Goldberg v Ng [1995] HCA 39 ; (1995) 185 CLR 83, 96 (stating that the waiver "can be limited so that it applies only in relation to particular persons, materials or purposes" ); Goldman v Hesper [1988] 3 All ER 97 (cited in Mann v Carnell [1999] HCA 66 ; (1988) 201 CLR 1 at [29] for the proposition that disclosure "for a limited and specific purpose" will not lead to loss of the privilege).
Case: Harman v Secretary of State for the Home Department [1983] 1 AC 280
Outcome: cited
A basic principle of Australian litigation is that parties give an implied undertaking to the court not to use any document produced to them in the course of litigation except in the context of that litigation: Esso Australia Resources Ltd v Plowman [1995] HCA 19 ; (1995) 183 CLR 10, 32, 36-37, 46; see also Harman v Secretary of State for the Home Department [1983] 1 AC 280. Where other courts have erred doctrinally is in failing to distinguish the implied undertaking analysis from the waiver analysis. The Full Court in Liberty Funding recognized this error when it stated (at [26]): " This so-called 'limited waiver' by service such that the privilege is waived only for the purpose of the legal proceedings in question might be seen to be no more than the operation of the implied undertaking dealt with in Harman ": Liberty Funding (2005) 218 ALR 283. In other words, the limitation on Visy's use of the witness proofs stems not from limitations to be inferred from the conduct of the ACCC in serving them, but in Visy's own obligations to the Court.
Case: Hickman v Taylor (1946) 329 US 495
Outcome: cited
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).
Case: In the Marriage of Crowe [1988] FLC 91-983
Outcome: cited
On the other hand, there is also authority for the proposition that filing and service, without more, operates as a full or limited waiver: eg, Complete Technology Pty Ltd v Toshiba (Australia) Pty Ltd (1994) 53 FCR 125; Austress v Marlin [2002] NSWSC 958 ; Chief Executive Officer of Customs v Neate (1998) 144 FLR 373; Black &amp; Decker Inc v Flymo Ltd [1991] 1 WLR 753; In the Marriage of Crowe [1988] FLC 91-983 and Leaders Shoes (Aust) Pty Ltd v National Insurance Co of New Zealand Ltd [1968] 1 NSWR 344. As one would expect, Cadbury relies on these cases. Cadbury also relies on Liberty Funding (2005) 218 ALR 283, where the Full Court of the Federal Court considered this conflicting authority. Although the Full Court did not formally decide the issue, it did suggest that the proper approach must recognize the distinction between legal professional privilege and the implied undertaking (with respect to the implied undertaking, see [19-22] below). The Full Court's criticism of the Smoothdale line of cases (at [25]) was in the following terms: The difficulty with the approach in Smoothdale is highlighted by the approach of Barrett J in Austress Freyssinet Pty Ltd v Marlin International Pty Ltd [2002] NSWSC 958 in which his Honour distinguished cases such as Smoothdale on the basis that they were concerned with use in one proceedings of a statement or an affidavit filed and served in another. Barrett J, on the other hand, was dealing with the question whether a party could tender, as an admission, parts of an affidavit sworn by the opposing party in the same proceeding. Barrett J said, buttressed by ample authority, that this could be done, because it was within the range of permitted use the purpose of the proceedings. Barrett J was undoubtedly correct. Thus, it is necessary to posit a limited waiver, within a broad framework of the conduct of proceedings, which may bring about the result (as in Austress ) that it is in the other side's power to destroy the privilege entirely by putting the statement or affidavit into evidence or examining or cross-examining on its contents. (Emphasis added.)
Case: Ingot Capital Investments Pty Ltd v Macquarie Equity Capital Markets Ltd (2006) 67 NSWLR 91
Outcome: cited
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.
Case: Leaders Shoes (Aust) Pty Ltd v National Insurance Co of New Zealand Ltd [1968] 1 NSWR 344
Outcome: cited
On the other hand, there is also authority for the proposition that filing and service, without more, operates as a full or limited waiver: eg, Complete Technology Pty Ltd v Toshiba (Australia) Pty Ltd (1994) 53 FCR 125; Austress v Marlin [2002] NSWSC 958 ; Chief Executive Officer of Customs v Neate (1998) 144 FLR 373; Black &amp; Decker Inc v Flymo Ltd [1991] 1 WLR 753; In the Marriage of Crowe [1988] FLC 91-983 and Leaders Shoes (Aust) Pty Ltd v National Insurance Co of New Zealand Ltd [1968] 1 NSWR 344. As one would expect, Cadbury relies on these cases. Cadbury also relies on Liberty Funding (2005) 218 ALR 283, where the Full Court of the Federal Court considered this conflicting authority. Although the Full Court did not formally decide the issue, it did suggest that the proper approach must recognize the distinction between legal professional privilege and the implied undertaking (with respect to the implied undertaking, see [19-22] below). The Full Court's criticism of the Smoothdale line of cases (at [25]) was in the following terms: The difficulty with the approach in Smoothdale is highlighted by the approach of Barrett J in Austress Freyssinet Pty Ltd v Marlin International Pty Ltd [2002] NSWSC 958 in which his Honour distinguished cases such as Smoothdale on the basis that they were concerned with use in one proceedings of a statement or an affidavit filed and served in another. Barrett J, on the other hand, was dealing with the question whether a party could tender, as an admission, parts of an affidavit sworn by the opposing party in the same proceeding. Barrett J said, buttressed by ample authority, that this could be done, because it was within the range of permitted use the purpose of the proceedings. Barrett J was undoubtedly correct. Thus, it is necessary to posit a limited waiver, within a broad framework of the conduct of proceedings, which may bring about the result (as in Austress ) that it is in the other side's power to destroy the privilege entirely by putting the statement or affidavit into evidence or examining or cross-examining on its contents. (Emphasis added.)
Case: Mitsubishi Electric Australia Pty Ltd v Victorian Work Cover Authority [2002] VSCA 59 ; (2002) 4 VR 332
Outcome: cited
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.
Case: Nilsen Industrial Electronics Pty Ltd v National Semiconductor Corporation (1994) 48 FCR 337
Outcome: cited
The High Court looked at an aspect of waiver of legal professional privilege in Mann v Carnell [1999] HCA 66 ; (1999) 201 CLR 1. The test applied there was whether there was " conduct inconsistent with the maintenance of the confidentiality which the privilege is intended to protect ": Mann v Carnell [1999] HCA 66 ; (1999) 201 CLR 1 at [29] . The High Court has not looked directly at the immediate question now in issue. And decisions of trial and intermediate courts both pre and post Mann v Carnell have looked at the question but have not spoken with one voice. On the one hand, there is a body of authority supporting the proposition that " statements or affidavits filed and served in proceedings, but not read in open court, remain ... subject to legal professional privilege ": Liberty Funding Pty Ltd v Phoenix Capital Ltd (2005) 218 ALR 283 at [15] (citing Nilsen Industrial Electronics Pty Ltd v National Semiconductor Corporation (1994) 48 FCR 337; State Bank of South Australia v Smoothdale Ltd (No 2) (1995) 64 SASR 224; Akins v Abigroup Ltd (1998) 43 NSWLR 539; Sevic v Roarty [1998] NSWSC 462 ; (1998) 44 NSWLR 287); Spotless Group Ltd v Premier Building &amp; Consulting Pty Ltd [2006] VSCA 201 ; AMP Financial Planning Pty Ltd v CGU Insurance Ltd [2004] FCA 1196 ; Polyaire Pty Ltd v K-Aire Pty Ltd (2003) 226 LSJS 109 and ACCC v Telstra Corp Ltd [2000] FCA 28 ; (2000) 96 FCR 317.
Case: O'Reilly v State Bank of Victoria Commissioners [1982] HCA 74 ; (1983) 153 CLR 1
Outcome: cited
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.
Case: Patrick v Capital Finance Pty Ltd (No 4) [2003] FCA 436
Outcome: cited
Depending on whether the restrictions on Visy's use of the witness proofs is sourced doctrinally to the legal professional privilege of the ACCC or, instead, the implied undertaking, is vital. It is vital because the implied undertaking is not absolute but the privilege is. The Plowman Court in dicta stated (at 33): No doubt the implied obligation must yield to inconsistent statutory provisions and to the requirements of curial process in other litigation, eg, discovery and inspection, but that circumstance is not a reason for denying the existence of the implied obligation. In Patrick v Capital Finance Pty Ltd (No4) [2003] FCA 436 at [15] - [22] , these dicta were applied in support of the proposition that a party is released from the implied undertaking when faced with a conflicting discovery obligation in a subsequent litigation.
Case: Polyaire Pty Ltd v K-Aire Pty Ltd (2003) 226 LSJS 109
Outcome: cited
The High Court looked at an aspect of waiver of legal professional privilege in Mann v Carnell [1999] HCA 66 ; (1999) 201 CLR 1. The test applied there was whether there was " conduct inconsistent with the maintenance of the confidentiality which the privilege is intended to protect ": Mann v Carnell [1999] HCA 66 ; (1999) 201 CLR 1 at [29] . The High Court has not looked directly at the immediate question now in issue. And decisions of trial and intermediate courts both pre and post Mann v Carnell have looked at the question but have not spoken with one voice. On the one hand, there is a body of authority supporting the proposition that " statements or affidavits filed and served in proceedings, but not read in open court, remain ... subject to legal professional privilege ": Liberty Funding Pty Ltd v Phoenix Capital Ltd (2005) 218 ALR 283 at [15] (citing Nilsen Industrial Electronics Pty Ltd v National Semiconductor Corporation (1994) 48 FCR 337; State Bank of South Australia v Smoothdale Ltd (No 2) (1995) 64 SASR 224; Akins v Abigroup Ltd (1998) 43 NSWLR 539; Sevic v Roarty [1998] NSWSC 462 ; (1998) 44 NSWLR 287); Spotless Group Ltd v Premier Building &amp; Consulting Pty Ltd [2006] VSCA 201 ; AMP Financial Planning Pty Ltd v CGU Insurance Ltd [2004] FCA 1196 ; Polyaire Pty Ltd v K-Aire Pty Ltd (2003) 226 LSJS 109 and ACCC v Telstra Corp Ltd [2000] FCA 28 ; (2000) 96 FCR 317.
Case: R v King [2007] 2 NZLR 137
Outcome: cited
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.
Case: Sankey v Whitlam [1978] HCA 43 ; (1978) 142 CLR 1
Outcome: cited
A court will not order the production of a document if disclosure of the document would be injurious to the public interest: Alister v The Queen [1983] HCA 45 ; (1984) 154 CLR 404; Sankey v Whitlam [1978] HCA 43 ; (1978) 142 CLR 1. The court must undertake a balancing test, considering "whether the public interest which requires that [a] document should not be produced outweighs the public interest that a court of justice in performing its functions should not be denied access to relevant evidence" : Sankey [1978] HCA 43 ; (1978) 142 CLR 1 at 38-39. As this formulation of the test makes clear, the onus is on the party seeking to prevent disclosure of a document.
Case: Somerville v ASC (1995) 60 FCR 319
Outcome: cited
This onus has been described by Lindgren J as a "heavy burden" requiring the proponent of immunity to "establish a 'real' rather than merely 'some' or 'any' detriment to the public interest from disclosure" of the documents: Somerville v ASC (1995) 60 FCR 319 at 354. If the proponent cannot establish any such interest as a threshold matter, then the balancing test never arises, and the immunity claim will fail at the outset: As the High Court said in Alister v The Queen [1983] HCA 45 ; (1983) 154 CLR 404 at 412, " the balancing exercise ... can only be taken when it appears that both aspects of the public interest do require consideration " (Emphasis added).