Case: Grant v Downs [1976] HCA 63 ; (1976) 135 CLR 674
Outcome: applied
was no great disagreement between counsel as to the principles to be applied in this matter. One threshold matter needs to be considered, namely, the operation, if any, of O 33 r 11 of the Federal Court Rules . I was referred to the decision of Graham J in Seven Network Ltd v News Ltd [2005] FCA 864 at [57] [59] in which, in similar circumstances, it was held that O 33 r 11 would apply and doubt was cast upon what I had said in Arrow Pharmaceuticals Ltd v Merck &amp; Co Inc (2004) 210 ALR 593 at [10]. Leave to appeal against the decision of Graham J was granted and, although the appeal was dismissed, the Full Court made clear that O 33 r 11 did not operate at the point of pretrial production of documents, effectively overruling the decision of Graham J in that respect ( Seven Network Ltd v News Ltd [2005] FCAFC 125 ; (2005) 144 FCR 379). As this dispute is essentially about discovery and inspection it is clear, in my opinion, that the question of privilege is to be governed by the common law as defined in Esso Australia Resources Ltd v Commissioner of Taxation (Commonwealth) [1999] HCA 67 ; (1999) 201 CLR 49 rather than by the provisions of the Evidence Act 1995 (Cth). The classic statement of the dominant purpose test, which is now accepted, was that by Barwick CJ in Grant v Downs [1976] HCA 63 ; (1976) 135 CLR 674 (at 677): 'a document which was produced or brought into existence either with the dominant purpose of its author, or of the person or authority under whose direction, whether particular or general, it was produced or brought into existence, of using it or its contents in order to obtain legal advice or to conduct or aid in the conduct of litigation, at the time of its production in reasonable prospect, should be privileged and excluded from inspection.' There was also a question as to whether or not proceedings should be commenced. That decision involved the obtaining of legal advice and also consideration of the public interest. As an investigation progresses, it is natural that the investigator's views as to the likelihood of proceedings ensuing will develop. It may be accepted that from 10 November 2003 onwards, Alfred was of the view that proceedings were more likely than not. He was, of course, not the decision maker nor at that stage did he have the benefit of any legal advice. For the purposes of argument it may be accepted that litigation was in reasonable prospect by 10 November 2003. Even on that footing, it cannot be concluded that the interviews after 10 November 2003 took place for the dominant purpose of obtaining legal advice about, or assisting in the conduct of, any such litigation rather than completing the task of investigation which had been begun months earlier. Where there is more than one purpose for an action, it is not necessary that either should 'dominate'. In Mitsubishi Electric Australia Pty Ltd v Victorian WorkCover Authority [2002] VSCA 59 ; (2002) 4 VR 332, Batt JA (with whom Charles and Callaway JJA agreed) stated (at [10]): 'In its ordinary meaning "dominant" indicates that purpose which was the ruling, prevailing, or most influential purpose. Barwick CJ, whose view in Grant v Downs propounding the test of dominant purpose has now been adopted by the majority decision in Esso Australia Resources , distinguished "dominant" from "primary" and "substantial". Lord Edmund-Davies in Waugh, in adopting the test propounded by Barwick CJ, was of the view that the element of clear paramountcy should be the touchstone. That, as it seems to me, shows the meaning of "dominant".'