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Australian Competition & Consumer Commission v FFE Building Services Ltd

Australian Competition & Consumer Commission v FFE Building Services Ltd

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FEDERAL COURT OF AUSTRALIA
Australian Competition & Consumer Commission v FFE Building Services Limited [2003] FCA 1181
PRACTICE AND PROCEDURE – Discovery of documents – Claim of legal professional privilege – Agreement by ACCC to extend leniency to certain respondents in return for co-operation, including by provision of witness statements and affidavits – Whether draft witness statements and draft affidavits privileged – Distinction between documents supplied before and after commencement of legal action – Relevance of communication being to or from a lawyer – Claim of without prejudice privilege in relation to documents concerned with settlement of a procedural dispute – Obligation of ACCC to produce documents pursuant to s 157 of Trade Practices Act1974 (Cth) – Application of that section to privileged documents – Discretion of Court.
Trade Practices Act 1974 (Cth) s 157
Arnotts Limited v Trade Practices Commission (No 1) (1990) 21 FCR 297 discussed and applied.
Trade Practices Commission v Sterling (1979) FLR 244 applied.
Rush & Tompkins Ltd v Greater London Council [1989] 1 AC 1280 applied.
AUSTRALIAN COMPETITION AND CONSUMER COMMISSION v FFE BUILDING SERVICES LIMITED (formerly Chubb Building Services Ltd) (formerly James Hardie Building Services P/L) t/as Fire Fighting Enterprises, TYCO AUSTRALIA PTY LIMITED (formerly Wormald Australia Pty Ltd) t/as Wormald Fire Systems, PREMIER FIRE PROTECTION (NSW) PTY LTD, METROPOLITAN FIRE SYSTEMS PTY LTD, ALLEN EDWARD SMITH, COLIN SIMPSON, VITO FODERA, JAMES BELL, ALLAN CARR, MITCHELL GRICE and BILL LAWSON
N 509 of 2002
WILCOX J
27 OCTOBER 2003
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY

N 509 of 2002

BETWEEN:

AUSTRALIAN COMPETITION AND CONSUMER COMMISSION
APPLICANT

AND:

FFE BUILDING SERVICES LIMITED (formerly Chubb Building Services Ltd) (formerly James Hardie Building Services P/L) t/as Fire Fighting Enterprises
FIRST RESPONDENT

TYCO AUSTRALIA PTY LIMITED (formerly Wormald Australia Pty Ltd) t/as Wormald Fire Systems
SECOND RESPONDENT

PREMIER FIRE PROTECTION (NSW) PTY LTD
THIRD RESPONDENT

METROPOLITAN FIRE SYSTEMS PTY LTD
FOURTH RESPONDENT

ALLEN EDWARD SMITH
FIFTH RESPONDENT

COLIN SIMPSON
SIXTH RESPONDENT

VITO FODERA
SEVENTH RESPONDENT

JAMES BELL
EIGHTH RESPONDENT

ALLAN CARR
NINTH RESPONDENT

MITCHELL GRICE
TENTH RESPONDENT

BILL LAWSON
ELEVENTH RESPONDENT

JUDGE:

WILCOX J

DATE OF ORDER:

27 OCTOBER 2003

WHERE MADE:

SYDNEY

THE COURT DECLARES THAT:
1.The documents in the applicant’s List of Documents filed on 4 July 2003, identified by the numbers set out in Schedule A to this order, are not subject to legal professional privilege.
2.The documents in the said List of Documents, identified by the numbers set out in Schedule B to this order, are subject to legal professional privilege.
3.The documents in the said List of Documents, identified by the numbers set out in Schedule C to this order, are subject to without prejudice privilege.

AND THE COURT ORDERS THAT:
4.On or before Tuesday, 28 October 2003, the applicant produce to each respondent for inspection:
(i)each of the documents identified in Schedule A to this order; and
(ii)any draft witness statements or draft affidavits that fall within Schedule B or Schedule C to this…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2003] FCA 1181
Decision Date: 27 OCTOBER 2003

CaseChat Overview and Summary

The case of Australian Competition & Consumer Commission v FFE Building Services Ltd involved the ACCC and several respondents, including FFE Building Services Ltd, in a dispute over the discovery of documents and claims of legal professional privilege. The matter came before the court to determine whether certain draft witness statements and draft affidavits were privileged and whether the ACCC was obligated to produce these documents under section 157 of the Trade Practices Act 1974 (Cth).

The primary legal issues the court had to address were whether draft witness statements and draft affidavits prepared in the context of a leniency submission by Phillips Fox were privileged, and whether the ACCC’s obligation to produce documents under section 157 of the Trade Practices Act extended to these privileged documents. Additionally, the court had to consider the distinction between documents supplied before and after the commencement of legal action and the relevance of communications being to or from a lawyer.

The court found that draft witness statements and draft affidavits were not privileged because they were prepared with a view to being used in subsequent proceedings, not for the sole purpose of obtaining legal advice. The court reasoned that these documents were not protected by legal professional privilege because they were intended for use in litigation, rather than solely for the purpose of obtaining legal advice. The court also noted that the obligation under section 157 applied to all documents, including those that might be privileged, and that the ACCC's discretion to withhold privileged documents was limited by this statutory obligation. The court held that the ACCC was required to produce the specified documents for inspection by the respondents.

In conclusion, the court ordered the ACCC to produce certain documents to the respondents for inspection, highlighting the limited scope of legal professional privilege in the context of draft witness statements and draft affidavits prepared in anticipation of litigation. The court also addressed the costs of the motions, determining that they were to be borne by the respective parties in the principal proceeding.

Orders

Orders of the court

4. On or before Tuesday, 28 October 2003, the applicant produce to each respondent for inspection:

(i) each of the documents identified in Schedule A to this order; and

(ii) any draft witness statements or draft affidavits that fall within Schedule B or Schedule C to this order that have been signed, or otherwise acknowledged as correct, by the relevant deponent.

5. The costs of the motions filed on 12 and 17 September 2003 be costs of the respective parties in the principal proceeding.

Background

Background to the litigation

Copies of all the disputed documents have been made available to me for inspection (if necessary) in determining the privilege claims made.Background In order to put the issues into perspective, it is necessary to summarise the history of the matter, as set out in Mr Ellis’ affidavit, the content of which was not challenged at the hearing of the motions. It appears that on about 26 March 2001, ACCC’s Canberra office received a leniency submission from Phillips Fox. The submission was made on behalf of all companies in the Tyco Group, including the now second and fourth respondents, and their relevant employees. Mr Ellis described the submissions, in his affidavit, as concerning ‘the conduct of Tyco and several current and former employees in possible price fixing and market sharing conduct in the fire protection industry in Sydney at various dates between 1988 and 1997’. ACCC considered the submission and sought further information. This was supplied by a supplementary submission from Phillips Fox dated 19 June 2001. On 23 July 2001, David Smith, ACCC’s Executive General Manager of Enforcement/Compliance, wrote to Phillips Fox stating that ACCC had considered the submission and reached a decision that it was ‘not prepared to offer the Tyco Group complete immunity in relation to the [disclosed] conduct’; nonetheless, upon certain specified conditions, including the supply of information and the provision of evidence in any subsequent proceedings, it would refrain from seeking any penalty against members of the Tyco Group or current employees. However, Mr Smith added:‘Given the seriousness of the alleged matters and the factors referred to above the Commission believes that it is otherwise appropriate to obtain Court orders in respect of the alleged conduct.’ The letter went on to state that leniency was conditional on the Tyco Group and its employees co-operating in relation to filing agreed statements of fact, the provision of complete and truthful statements and affidavits, and their consent to appropriate Federal Court declarations, injunctions and orders. Mr Smith had informed Mr Ellis about the matter in early July 2001. On 23 July, he transferred its carriage to ACCC’s Sydney office, when it came into Mr Ellis’ area of responsibility. As at that time, it was Mr Ellis’ understanding that ACCC anticipated instituting legal proceedings, at least against members of the Tyco Group and one or more of their employees or ex-employees. Mr Ellis believed that, having regard to the nature of the alleged conduct, it was likely the proceeding would also involve other respondents, but no decision was made about other respondents until 31 May 2002. Over the period July to November 2001, there was additional correspondence between ACCC and Phillips Fox, mainly about details of co-operation. This correspondence culminated in a letter of 20 November 2001, in which Phillips Fox acknowledged ‘there is agreement with the Commission’, as set out in specified earlier letters.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

WILCOX J

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Established by: WILCOX J

Full text does not contain this section.

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 509 of 2002

BETWEEN:	AUSTRALIAN COMPETITION AND CONSUMER COMMISSION APPLICANT
AND:	FFE BUILDING SERVICES LIMITED (formerly Chubb Building Services Ltd) (formerly James Hardie Building Services P/L) t/as Fire Fighting Enterprises FIRST RESPONDENT TYCO AUSTRALIA PTY LIMITED (formerly Wormald Australia Pty Ltd) t/as Wormald Fire Systems SECOND RESPONDENT PREMIER FIRE PROTECTION (NSW) PTY LTD THIRD RESPONDENT METROPOLITAN FIRE SYSTEMS PTY LTD FOURTH RESPONDENT ALLEN EDWARD SMITH FIFTH RESPONDENT COLIN SIMPSON SIXTH RESPONDENT VITO FODERA SEVENTH RESPONDENT JAMES BELL EIGHTH RESPONDENT ALLAN CARR NINTH RESPONDENT MITCHELL GRICE TENTH RESPONDENT BILL LAWSON ELEVENTH RESPONDENT
JUDGE:	WILCOX J
DATE OF ORDER:	27 OCTOBER 2003
WHERE MADE:	SYDNEY