Australian Competition & Consumer Commission v Rural Press Ltd - [1999] FCA 1847

FEDERAL COURT OF AUSTRALIA
Australian Competition & Consumer Commission v Rural Press Ltd [1999] FCA 1847
AUSTRALIAN COMPETITION & CONSUMER COMMISSION v RURAL PRESS LIMITED (ACN 000 010 382), BRIDGE PRINTING OFFICE PTY LIMITED (ACN 007 547 024), IAN LAW, TREVOR McAULIFFE, WAIKERIE PRINTING HOUSE PTY LIMITED, PAUL TAYLOR and DARNLEY TAYLOR
S 56 OF 1999
MANSFIELD J
24 DECEMBER 1999
ADELAIDE

IN THE FEDERAL COURT OF AUSTRALIA

SOUTH AUSTRALIA DISTRICT REGISTRY

S 56 OF 1999

BETWEEN:

AUSTRALIAN COMPETITION & CONSUMER COMMISSION
Applicant

AND:

RURAL PRESS LIMITED
(ACN 000 010 382)
First Respondent

BRIDGE PRINTING OFFICE PTY LIMITED
(ACN 007 547 024)
Second Respondent

IAN LAW
Third Respondent

TREVOR McAULIFFE
Fourth Respondent

WAIKERIE PRINTING HOUSE PTY LIMITED
(ACN 007 623 270)
Fifth Respondent

PAUL TAYLOR
Sixth Respondent

DARNLEY TAYLOR
Seventh Respondent

JUDGE:

MANSFIELD J

DATE:

24 DECEMBER 1999

PLACE:

ADELAIDE

REASONS FOR DECISION

The applicant has brought proceedings under s 80 of the Trade Practices Act 1974 (“the Act”) alleging that the respondents have contravened ss 45 and 46 of the Act, or have been involved in contraventions of those provisions of the Act. The hearing commenced on 8 December 1999. The matter to which these reasons relate was argued on 6 December 1999, and I gave my ruling at the commencement of the hearing. These are my reasons for that ruling.
On 29 September 1999, the applicant filed its list of documents. That list included a category described as records of confidential communications between the applicant and potential witnesses in respect of which it claimed client legal privilege. There are twelve documents within that category which the fifth to seventh respondents claim should be produced for their inspection. Those documents are described in the list of documents in the following way (using the numbering adopted by the applicant):
(1)Original signed statement and attachments of a potential witness dated 4 May 1999 – Document 12-00027
(2)Original signed statement and attachments of a potential witness dated 5 May 1999 – Document 12-00029
(3)Original signed statement and attachments of potential witness dated 6 May 1999 – Document 12-00030
(4)Original signed statement and attachments of potential witness dated 6 May 1999 – Document 12-00031
(5)Copy witness statement – statement of potential witness and attachments dated 13 May 1999 – Document 12-00034
(6)Copy signed statement of potential witness dated 31 August 1999 – Document 12-00041
(7)Copy signed statement of potential witness dated 2 September 1999 – Document 12-00046
(8)Original unsigned statement of potential witness of September 1999 – Document 12-00042
(9) Additional evidence from potential witness dated 5 May 1999 – Document 12-00028.
The fifth to seventh respondents have requested the applicant to provide them with copies of those documents under s 157 of the Act. The applicant has not complied with that request. This application is made under s 157(3) of the Act.
Section 157 of the Act is in the following terms:
“(1) Where –
(a)a corporation makes an application to the Commission under section 88, 91A, 91B or 91C; or
(b)the…

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: [1999] FCA 1847
Decision Date: 24 DECEMBER 1999

CaseChat Overview and Summary

In the Federal Court, the Australian Competition & Consumer Commission (ACCC) brought an action against Rural Press Ltd, alleging breaches of the Trade Practices Act. The ACCC sought discovery of documents, which Rural Press Ltd argued were protected by client legal privilege and therefore should not be disclosed. The court had to determine whether the documents were prepared for the sole purpose of providing legal advice in relation to contemplated or pending proceedings, thus qualifying for the protection of client legal privilege under the Act.

The primary legal issue was whether the documents in question were prepared for the sole purpose of providing legal advice in relation to pending or contemplated proceedings, thereby qualifying for the exemption from disclosure under s 157(1)(e) or (f) of the Act. The court needed to assess the nature and purpose of the documents, and whether they were prepared by officers of the ACCC. Additionally, the court had to consider whether the documents were prepared for the sole purpose of providing legal advice.

The court found that the documents were not prepared for the sole purpose of providing legal advice, as they were created for use in the anticipated proceedings. The affidavits submitted by the ACCC did not sufficiently demonstrate that the documents were prepared for legal advice purposes. Instead, the documents were internal working materials prepared in the course of investigations and were not shielded from production by client legal privilege. The court noted that internal working documents prepared during investigations may not satisfy the sole purpose test for client legal privilege, as they are not intended for the sole purpose of providing legal advice. The ACCC's functions and powers under the Act include significant investigative powers, and these documents fell within the category of internal working documents.

The court ruled that the documents were not protected by client legal privilege and ordered their production. The ACCC was required to disclose the documents to Rural Press Ltd for use in the proceedings.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

The third matter argued was that, in any event, the fifth to seventh respondents had not established that any of the documents “tends to establish the case” of those respondents so as to enliven s 157(1)(e) or (f). Accordingly, it contended that the request for their production was not a valid one under subs (1). That is so, notwithstanding that the documents have been discovered as documents touching upon matters in issue between the parties to the proceedings, as containing statements of potential witnesses, and as being statements of potential witnesses not proposed to be presented by the applicant.The evidence The evidence on this application shows that the applicant’s investigations into the conduct the subject of these proceedings commenced following its decision to do so on 22 May 1998. On 30 October 1998, the applicant reviewed the investigations conducted up until that date, and directed that further specified steps and investigations be undertaken to pursue a potential action for breach of s 46 of the Act. The minute of the Enforcement Committee of the applicant of that date does not direct that the matter be “prepared for litigating in Court” (as asserted in the affidavit relied upon by the applicant). The documents in question came into existence only shortly prior to, or after, the commencement of this action on 14 July 1999. Each of the documents is asserted by affidavit to have been brought into existence:“(i)at the request and/or on the advice of the Applicant’s legal advisers for the sole purpose of providing legal advice in respect of contemplated or pending proceedings; and/or(ii)after 30 October 1998 (see Discovered Document 5-00009) for the sole purpose of use in contemplated or pending proceedings.” Documents (1) to (8) referred to above is each said to be a document “… in the contemplated (and pending) proceedings which was physically prepared by” nominated staff members of the applicant. Document (9) is described as a“confidential document received from a potential witness in the contemplated proceedings provided in response to requests by ACCC staff or by the witness for incorporation, or possible incorporation, into a draft statement of evidence being in the course of physical preparation by ACCC staff members …” I do not consider that the claim to client legal privilege is satisfactorily expressed in the affidavit. The expression in par 8 above is taken directly from the introductory words to schedule 12 to the list of documents, but that list covers a much longer period and many more documents. The matters expressed in (i) and (ii) are said to be additional or alternative grounds, but there is no attempt to apply them separately to any one document. In fact, all the documents in issue came into existence after 30 October 1998. There has been no attempt to identify which of the documents was produced on the advice of the applicant’s legal advisers or how it is that each of those documents is said to be for the sole purpose of providing legal advice in respect of contemplated or pending proceedings. The evidence shows that no decision to institute proceedings was made on 30 October 1998. Investigations to determine whether or not to institute proceedings were carried out after that date. Documents which are part of the applicant’s investigation materials need not be the subject of client legal privilege.

Decision

Reasons for decision

MANSFIELD J

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Established by: MANSFIELD J

In Somerville v Australian Securities Commission (1995) 131 ALR 517 (“Somerville”), Lindgren J at 549-550 was not prepared to accept an affidavit as to the purpose for which documents in question were brought into existence, where the affidavit was couched only in general terms by reference to the sole purpose test laid down in Grant. His Honour preferred to rule on the claim to privilege based upon an analysis of the relevant statutory background and of the particular circumstances of the case.Consideration of contentions It is convenient first to deal with a preliminary submission put by the fifth to seventh respondents. They submitted that it is not shown that the documents were “prepared” by officers of the first respondent. In my judgment, the argument that the persons involved in the preparation of the documents in issue were not officers of the applicant must fail. The deponent of the affidavit relied upon by the applicant to support its claim for non production identifies herself as a senior investigation officer in the Adelaide regional office of the applicant. When describing the persons who prepared or took the several statements, she identified the persons concerned, including herself, as “staff members”. I am satisfied that the affidavits sufficiently identifies the persons so involved as to warrant the conclusion that they were officers of the applicant at material times. The question of whether documents of the present character were prepared by those officers of the applicant is a difficult one. Perhaps surprisingly, the question has not previously been directly addressed so far as my researches and those of counsel have discovered. The question was however addressed by Bowen CJ in Trade Practices Commission v T.N.T. Management Pty Ltd (No 3) (1981) 55 FLR 219 (“T.N.T. Management”) in a general way. The nature of the documents then in issue does not appear from the report. It does not suggest that the documents then in issue were statements from potential witnesses. In that case, the former Chief Justice found that the documents had their physical source in an officer of the then Trade Practices Commission. His Honour then considered the context of s 157 of the Act, and said (at 224) that its intention:“… is that a corporation is to be given fair treatment, in the sense that it is to be given copies of documents which the Commission has and which would, speaking broadly, support the Corporation’s case. This may be compared with the obligation placed upon a prosecutor, who knows of a credible witness who can supply material facts which tend to show an accused is innocent, to make the witness or his statement available to the defence.” [References omitted] I respectfully agree with his Honour’s remarks. Section 157 also appears to endeavour to strike a balance between achieving that intention on the one hand, and to preserve from production working documents of the applicant on the other. Because the applicant’s functions and powers under the Act include significant powers of investigation of possible contraventions of the Act, and because documents may be prepared for consideration by the applicant, its internal documents prepared in the course of an investigation may not satisfy the sole purpose test to fall under the aegis of client legal privilege: see Grant. Nevertheless, s 157 clearly intends that those internal working documents of the applicant should be so shielded from production. They would clearly fall within the category of documents prepared by an officer of the applicant. They may be briefing notes, summaries or precis of evidence, commentaries, reports or internal memoranda. They may contain a variety of material. They may simply contain a precis of the statements or quotations of statements of proposed witnesses on a particular topic, for ease of reference or for submission to the applicant, or for other purposes. The other limb of the exemption appears to be based upon the fact that it should not be necessary for the applicant to produce to a corporation or other person documents produced to the applicant by that corporation or other person.

IN THE FEDERAL COURT OF AUSTRALIA
SOUTH AUSTRALIA DISTRICT REGISTRY	S 56 OF 1999

JUDGE:	MANSFIELD J
DATE:	24 DECEMBER 1999
PLACE:	ADELAIDE