Case: Bristol-Myers Squibb Company v FH Faulding &amp; Co Limited [2000] FCA 316 ; (2000) 97 FCR 524
Outcome: cited
Cadbury's primary contention is its second - that stare decisis does not apply because the evidence now before the Court that was not before Heerey J should give rise to different findings of fact and compel a different result. The contents of the stare decisis principle are not in dispute: e.g. Re Tyler; ex parte Foley [1994] HCA 25 ; (1994) 181 CLR 18 , 37-38 (per McHugh J) and Bristol-Myers Squibb Company v FH Faulding &amp; Co Limited [2000] FCA 316 ; (2000) 97 FCR 524 at [148] , [158]-[160]. In fact, as we are all taught at law school, the more closely the facts of a subsequent case are aligned to those of an earlier case, the more compelling is the case for the application of stare decisis. 21 Cadbury's third challenge is limited only to the "dominant purpose" element of the privilege claim. Again, given the way in which I have addressed the issues raised in this proceeding, it is unnecessary to address this contention. However, for the sake of completeness, I will say a few words about it. Cadbury accepts that the Heerey J's finding with respect to the date from which litigation was anticipated was part of the ratio of the case, but disputes that dominant purpose was also part of the ratio. I do not accept that submission. In my view, Heerey J's finding as to dominant purpose was part of the ratio in Visy No 2 in that it was a necessary part of his Honour's decision. It is true that the "principal issue" before the Court in Visy No 2 was whether litigation could be said to have been reasonably anticipated by 15 December 2004: Visy No 2 at [2]. However, the overall question before Heerey J was whether the 216 documents, including the Hodgson Interview transcript, were protected from disclosure by litigation privilege. Although the date issue may have been the principal issue (in the sense that it was the most contentious and was the focus of argument), it was not the only issue necessary to the Court's decision to uphold the privilege claim. As noted earlier, there are at least two elements to a claim of litigation privilege, both of which must be satisfied in order to make good the claim. Had the Court not made a positive finding with respect to both in Visy No 2 , it could not have upheld the claim. As such, Cadbury's contention now that Heerey J's conclusion with respect to dominant purpose was not part of the ratio of the case must fail: see Bristol-Myers at [160] (per Finkelstein J) (considering that "the ratio of a case should at least include every ruling on a point of law that is treated by the judge as a necessary step in reaching his ultimate conclusion in a case"). 22 Furthermore, nothing that was said by the Full Court on appeal dissuades me from that view. Cadbury cites the reasons of Lander J as recording that the issue before the trial judge "was whether at the time particular documents came into existence legal proceedings were reasonably contemplated": Visy Holdings (2007) 161 FCR 222 at [123]. That quotation is taken out of context and does not accurately reflect Lander J's views as to the issues in the case. What Lander J actually described as the issues in the case before Heerey J is found earlier in his Honour's reasons (at [43]) (emphasis added): There were three issues for determination before Heerey J. The first was whether the ACCC's claim for legal professional privilege was validly made. This issue required a finding as to the date upon which it could be said that litigation was reasonably anticipated by the ACCC. The claim for privilege also raised the question whether the dominant purpose of the creation of the documents was for use in litigation as distinct from investigation. Heerey J found against the applicants and found that the documents were created at a time when litigation was reasonably anticipated and for the purpose of use in that litigation. The respondent filed a notice of contention claiming that Heerey J's order in this regard should be affirmed on the further ground that the documents were privileged having been brought into existence for the dominant purpose of obtaining legal advice in relation to the proceeding. Because leave to appeal was refused, the notice of contention does not need to be considered. The second issue required consideration as to whether certain documents relating to the grant by the ACCC of immunity and/or leniency to Amcor were discoverable at all or only relevant as to credit. Justice Heerey found that the documents were not discoverable. The third issue was in relation to the pleadings and the applicants' amended defence, in particular, paras 222 (aa)-(ad). Justice Heerey struck out this part of the applicants' defence. In other words, Lander J (with whom Moore J agreed) explicitly found that the question of dominant purpose was an issue before Heerey J and necessary to his Honour's resolution of the application. I am therefore of the view that the reasons of Lander J in fact support the view that Heerey J's finding in regards to dominant purpose was part of the ratio of the case. 23 For the foregoing reasons, the applicant's notice of motion dated 3 October 2008 will be dismissed.