Australian Competition & Consumer Commission v J McPhee & Son (Australia) Pty Ltd

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY	VG 948 of 1995

BETWEEN:

AUSTRALIAN COMPETITION AND CONSUMER COMMISSION
APPLICANT

AND:

J MCPHEE & SON (AUSTRALIA) PTY LTD
(ACN 001 856 113)
FIRST RESPONDENT

RICHARD FORDE
SECOND RESPONDENT

DOUG MORTON
THIRD RESPONDENT

DAVID CLARKE
FOURTH RESPONDENT

CRAIG HOLLAND
FIFTH RESPONDENT

GUY WEBB
SIXTH RESPONDENT

JUDGE(S):	HEEREY J
DATE:	17 DECEMBER 1997
PLACE:	MELBOURNE

REASONS FOR JUDGMENT

I have read the affidavit of Donald Ross Davies sworn 3 December 1997 on behalf of Multigroup Distribution Services Pty Ltd (DFE), against whom an order for third party discovery was made on 10 September 1997. I have also read the submissions on privilege relating to the document referred to in item 9 of Pt of Sch 1 to DEF’s list, those being the submissions of the first respondent dated 26 November and DFE dated 28 November 1997.

The applicant and the second to sixth respondents have advised that they do not wish to make submissions.

I have no doubt that the document in question is protected from production by legal professional privilege, even assuming that the sole purpose test is applicable. It was, I find, a document brought into existence for the sole purpose of obtaining legal advice as to the legal consequences of the meeting of 16 May 1995.

Further, I see no reason for the exercise of the discretion under O 15 r 15 of the Federal Court Rules. I do not think it can be said that production of the document is “necessary” at the present time, given that privilege could be relied upon at trial.

Moreover, I do not see non-production as militating against the first respondent having a fair trial. The first respondent has had, by pleadings and witness statements, full details of the case to be made against it which essentially depends on accounts of conversations.

There will be orders that the application of the first respondent be dismissed and that the first respondent pay DFE’s costs of the application.

I certify that this and the preceding page are a true copy of the Reasons for Judgment herein of the Honourable Justice Heerey

Associate:

Dated: 17 December 1997

CaseChat Overview and Summary

The Federal Court of Australia dealt with a case brought by the Australian Competition and Consumer Commission against J McPhee & Son (Australia) Pty Ltd and five individuals, concerning allegations of breaches of the Trade Practices Act. The court addressed an application by the first respondent, J McPhee & Son (Australia) Pty Ltd, for third-party discovery against Multigroup Distribution Services Pty Ltd. The application sought the production of a document to which legal professional privilege was claimed. The central legal issue was whether the document, which was created for the purpose of obtaining legal advice, was protected by legal professional privilege and, if so, whether the court should exercise its discretion to order its production.

The court held that the document was protected by legal professional privilege, as it was created for the sole purpose of obtaining legal advice regarding the legal consequences of a specific meeting. Justice Heerey found that the document was brought into existence to seek legal advice, thereby satisfying the criteria for legal professional privilege. Additionally, the court determined that there was no need to exercise its discretion under Federal Court Rules to order the document's production, as privilege could be maintained at trial, and the non-production did not prejudice the first respondent's right to a fair trial. The decision was based on the principle that the first respondent already had full details of the case against it, which primarily relied on accounts of conversations.

As a result, the court dismissed the application for third-party discovery and ordered the first respondent to pay the costs of the application to Multigroup Distribution Services Pty Ltd. This decision underscored the importance of legal professional privilege in protecting communications between clients and their legal advisers.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established