Case: Australian Competition &amp; Consumer Commission v FFE Building Services Limited (2003) ATPR 41-967
Outcome: considered
In Australian Competition &amp; Consumer Commission v FFE Building Services Limited (2003) ATPR 41-967 at [59], Wilcox J summarised, in a manner accepted by the parties, the position in relation to s 157 of the TPA and legal professional privilege, in these terms: It follows that I should be guided by the following principles: (a) the Court has a discretionary power, under s 157(2) of the [TPA], to order production of documents notwithstanding that they ordinarily would be protected by legal professional privilege; (b) nonetheless, legal professional privilege is not abrogated by s 157 ; the existence of the privilege is a factor to be taken into account in considering the proper exercise of the Court's discretion; (c) in exercising its discretion, the Court should take into account the 'general intention disclosed by s 157 '; that is, ' that a corporation is to be given fair treatment in the sense that it is to be given documents which Commission has and which would support the corporation's case', including by tending to impeach ACCC's case . (Emphasis added.) 14 In FFE Building Services (2003) ATPR 41-967 at [50], Wilcox J referred to the decision in the House of Lords in Rush &amp; Tompkins Ltd v Greater London County Council [1989] 1 AC 1280, where the House of Lords considered the principles relating to the privilege attaching to documents which came into existence for the purpose of negotiating settlement. Lord Griffiths, with whom the other members agreed, said at 1301: It seems to me that if those admissions made to achieve settlement of a piece of minor litigation could be held against [a litigant] in a subsequent major litigation it would actively discourage settlement of the minor litigation and run counter to the whole underlying purpose of the "without prejudice" rule. I would therefore hold that as a general rule the "without prejudice" rule renders inadmissible in any subsequent litigation connected with the same subject matter proof of any admissions made in a genuine attempt to reach a settlement. It of course goes without saying that admissions made to reach settlement with a different party within the same litigation are also inadmissible whether or not settlement was achieved with that party. (Emphasis added.) In the present case it is not disputed that the relevant correspondence was in the cause of a genuine attempt to reach settlement. At 1305, his Lordship continued: If the party who obtains discovery of the "without prejudice" correspondence can make use of it at the trial ... [i]t may give some insight into his opponent's general approach to the issues in the case but in most cases this is likely to be of marginal significance and will probably be revealed to him in direct negotiations in any event. In my view this advantage does not outweigh the damage that would be done to the conduct of settlement negotiations if solicitors thought that what was said and written between them would become common currency available to all other parties to the litigation. In my view the general public policy that applies to protect genuine negotiations from being admissible in evidence should also be extended to protect those negotiations from being discoverable to third parties.