Case: Commissioner of Taxation (Cth) v Pratt Holdings Pty Ltd [2005] 225 ALR 266 at [30]
Outcome: applied
The relevant legal principles on legal professional privilege have recently been the subject of a comprehensive summary by Kenny J in Commissioner of Taxation (Cth) v Pratt Holdings Pty Ltd (2005) 225 ALR 266 at [30]. There is no dispute as to the correctness of this statement and I incorporate it by reference in these reasons. 5 The sixth respondent Mr Rod Carroll is separately represented and did not participate in these interlocutory applications. The term respondent in these reasons does not include him. 6 The documents in question total 216 and can be summarised as follows. The officers referred to are the ACCC's General Counsel Mr Robert Alexander, Mr Geoffrey Williams, a Director of its Enforcement Division, and Ms Susan Pryde of the Australian Government Solicitor's office. Category of documents Number of documents Date range Basis of privilege claimed A 4 17 Jun 2005 21 Oct 2005 Confidential communications to Mr Alexander from legal representatives of proposed witnesses. The dominant purpose of Mr Alexander's communication with those persons was to obtain information for use in, or in relation to, the proceeding and to use that information to obtain legal advice in relation to the proceeding. B 4 15 Mar 2005 16 Mar 2005 Documents created by Mr Alexander for the dominant purpose of being used in, or in relation to, the proceeding and to obtain legal advice in relation to the proceeding. The documents consist of: 1. notes made by Mr Alexander as to evidentiary matters to be discussed with witnesses (nos 36 and 37); 2. note of a confidential communication between Mr Alexander and solicitors for a witness (no 38); 3. Mr Alexander's note of a confidential communication between himself and a witness (no 41). C 2 17 Jun 2005 24 Jun 2005 Documents containing information in respect of proposed witnesses collated at Mr Alexander's request by the solicitor for the employer of the proposed witnesses and provided to Mr Alexander. His dominant purpose in requesting the information in respect of the proposed witnesses was to obtain information for use in, or in relation to, the proceeding and to use that information to obtain legal advice in relation to the proceeding. D No longer in dispute - E 77 1 Jan 2005 16 Dec 2005 1. Documents recording confidential communications between, on the one hand, Mr Williams and other officers of the ACCC or AGS and, on the other hand, a proposed witness or a representative of a proposed witness. 2. In some cases, the documents also record internal communications of officers of the ACCC related to the communications referred to in 1. 3. In each instance, the communications recorded in the documents were made by Mr Williams or at his request. The dominant purpose of Mr Williams in making those communications, or requesting those communications to be made, was to obtain information for use in, or in relation to the proceeding and to use that information to obtain legal advice in relation to the proceeding. F 4 1 Jul 2005 1 Nov 2005 Internal ACCC working documents prepared by officers of the ACCC at Mr Williams' direction. His dominant purpose in directing that those documents be created was to record information for use in, or in relation to, the proceeding and to obtain legal advice in relation to the proceeding. G 95 22 Dec 2004 27 Nov 2005 Witness statements or draft witness statements prepared by Mr Williams, other officers of the ACCC at his direction, and officers of the AGS or counsel at Mr Williams' request. In some cases the draft witness statements contain suggested amendments made by Mr Williams, other officers of the ACCC or AGS, or counsel. Mr Williams' dominant purpose in preparing or requesting those documents was to use them in, or in relation to, the proceeding and to obtain legal advice in relation to the proceeding. In some cases Mr Alexander was the officer who amended the draft witness statements and he did so with the same dominant purpose. H 11 17 Dec 2004 6 May 2005 Records of interviews of potential witnesses conducted by Mr Alexander and Mr Williams. Their dominant purpose in conducting the interviews was to obtain information for use in, or in relation to, the proceeding and to use that information to obtain legal advice in relation to the proceeding. The interviews were not conducted under the powers conferred by s 155 of the Act. I 19 11 Oct 2005 25 Nov 2005 Witness statements or draft witness statements prepared by Ms Pryde or other officers of AGS at the direction of Mr Williams or Ms Pryde. In some cases the draft witness statements contain suggested amendments made by Ms Pryde, Mr Williams or other officers. Ms Pryde's dominant purpose in preparing or requesting those witness statements was to use the documents in, or in relation to, the proceeding and to obtain legal advice in relation to the proceeding. In some cases Mr Alexander was the officer who amended the witness statements and he did so with the same dominant purpose.