mdroth/huggingface-course_section-5_zst huggingface dataset:
Case: Akins v Abigroup Ltd (1998) 43 NSWLR 539
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: Alister v The Queen [1983] HCA 45 ; (1984) 154 CLR 404
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. 26 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).
Case: AMP Financial Planning Pty Ltd v CGU Insurance Ltd [2004] FCA 1196
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: Australian Competition and Consumer Commission v Dataline.Net.Au Pty Ltd (2006) 236 ALR 665
Outcome: cited
First, there is at least an equal, if not more compelling, public interest in allowing private litigants to rely on the output of regulatory investigations, which are undertaken by public regulators at least in part on their behalf. The ACCC should be " motivated by a desire to do its duty, both towards the public and towards individual investors " ( ACCC v Michigan Group Pty Ltd [2002] FCA 1439 at [22] ). It is not motivated by corporate profit motives or competitive concerns. Indeed, the ACCC often justifies requests for findings of fact, declarations, and injunctions that may be of little or no importance in the matter before the court on the grounds that they will be useful to follow-on private litigants: ACCC v Michigan Group Pty Ltd [2002] FCA 1439 at [24] ; ACCC v Dataline.Net.Au Pty Ltd (2006) 236 ALR 665 at [105]-[107] (discussing s 83 of the Trade Practices Act 1974 (Cth), which outlines the circumstances in which findings made in penalty proceedings under s 77 may be used as prima facie evidence in damages proceedings brought under s 82).
Case: Australian Competition and Consumer Commission v FFE Building Services Ltd [2003] ATPR 41-967
Outcome: cited
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].
Case: Australian Competition and Consumer Commission v Michigan Group Pty Ltd [2002] FCA 1439
Outcome: cited
First, there is at least an equal, if not more compelling, public interest in allowing private litigants to rely on the output of regulatory investigations, which are undertaken by public regulators at least in part on their behalf. The ACCC should be " motivated by a desire to do its duty, both towards the public and towards individual investors " ( ACCC v Michigan Group Pty Ltd [2002] FCA 1439 at [22] ). It is not motivated by corporate profit motives or competitive concerns. Indeed, the ACCC often justifies requests for findings of fact, declarations, and injunctions that may be of little or no importance in the matter before the court on the grounds that they will be useful to follow-on private litigants: ACCC v Michigan Group Pty Ltd [2002] FCA 1439 at [24] ; ACCC v Dataline.Net.Au Pty Ltd (2006) 236 ALR 665 at [105]-[107] (discussing s 83 of the Trade Practices Act 1974 (Cth), which outlines the circumstances in which findings made in penalty proceedings under s 77 may be used as prima facie evidence in damages proceedings brought under s 82).
Case: Australian Competition and Consumer Commission v Telstra Corp Ltd [2000] FCA 28 ; (2000) 96 FCR 317
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: Australian Competition and Consumer Commission v Visy Industries Holdings Pty Limited (No 3) (2007) ATPR 42-185
Outcome: referred to
As is now well known, Visy Industries Holdings Pty Limited and related entities ("Visy") were ordered to pay approximately $36 million in penalties as a result of those entities colluding with Amcor Limited ("Amcor") to fix prices in the cardboard box market: Australian Competition and Consumer Commission v Visy Industries Holdings Pty Limited (No 3) (2007) ATPR 42-185 ("the ACCC proceeding" or "penalty proceeding"). This proceeding is one of a number of ancillary proceedings in which allegations of the same or similar conduct are made. It is an action brought by the applicant, Cadbury Schweppes Pty Ltd ("Cadbury"), against Amcor for damages under the Trade Practices Act 1974 (Cth) ("the damages proceedings"). Visy has been joined by Amcor as a respondent to Amcor's cross claim in the damages proceedings. 2 An interlocutory dispute has arisen in the damages proceedings. The Australian Competition and Consumer Commission ("ACCC") makes a claim for legal professional privilege and public interest immunity privilege in relation to specified documents created in connection with the ACCC proceeding. Amcor and Visy have discovered the documents in the damages proceedings, but the ACCC seeks to prevent them from producing those documents to Cadbury on discovery. 3 Specifically, the ACCC contends that legal professional privilege held by it prevents Amcor and Visy's production to Cadbury of the following three categories of documents: (1) Six witness statements - of which three were drafted by Amcor's external solicitors at the direction of the ACCC and three were drafted by ACCC staff and then forwarded to Amcor's in-house counsel. Copies of the statements were retained by Amcor's external solicitors and Amcor respectively. Each of the 6 statements summarises statements made by Amcor employees to ACCC investigators in the course of the Visy investigation (Category I); (2) 111 witness proofs, summarizing statements made to ACCC investigators, drafted by the ACCC in the ACCC proceedings and, at the direction of the Court, filed and served on Visy in those proceedings (Category II); and (3) Eight specified witness proofs from Amcor employees which, although a subset of the 111 witness proofs in Category II, are alleged to be protected from disclosure by public interest immunity in addition to legal professional privilege (Category III). The documents in each category are listed in Appendix A.
Case: Austress Freyssinet Pty Ltd v Marlin International Pty Ltd [2002] NSWSC 958
Outcome: discussed
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: AWB Ltd v Cole [2006] FCA 571 ; (2006) 152 FCR 382
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: Black &amp; Decker Inc v Flymo Ltd [1991] 1 WLR 753
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: Chief Executive Officer of Customs v Neate (1998) 144 FLR 373
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: Complete Technology Pty Ltd v Toshiba (Australia) Pty Ltd (1994) 53 FCR 125
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: Dingle v Commonwealth Development Bank of Australia (1989) 23 FCR 63
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.