Australian Competition & Consumer Commission v FFE Building Services Ltd

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.