AWB Limited v Honourable Terence Rhoderic Hudson Cole (No 6)
[2006] FCA 1274
REMEDIES – declarations – that documents protected by legal professional privilege – form of declarations – whether appropriate to grant declaration that certain documents are privileged and others not – whether necessary to distinguish between waived documents and documents to which privilege never attached
COSTS – discretion to award – where each party achieved substantial measure of success on certain issues – no orders as to costs
AWB LIMITED v THE HONOURABLE TERENCE RHODERIC HUDSON COLE AO RFD QC AND COMMONWEALTH OF AUSTRALIA VID 594 OF 2006
YOUNG J 26 SEPTEMBER 2006 MELBOURNE
IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY
VID 594 OF 2006
BETWEEN:
AWB LIMITED Applicant
AND:
THE HONOURABLE TERENCE RHODERIC HUDSON COLE AO RFD QC First Respondent
COMMONWEALTH OF AUSTRALIA Second Respondent
JUDGE:
YOUNG J
DATE OF ORDER:
26 SEPTEMBER 2006
WHERE MADE:
MELBOURNE
THE COURT ORDERS THAT:
1.The Court declares that in relation to the documents listed and described in the applicant’s further revised list of privileged documents dated 7 August 2006 as supplemented by the letters from the applicant’s solicitors to the Court dated 25 August 2006 and 5 September 2006:
(a)legal professional privilege attaches to the documents listed in Schedule 1 to this Order to the extent claimed by the applicant;
(b)legal professional privilege attaches to the documents listed in Schedule 2 to this Order only to the extent identified in paragraph 241 of the reasons for judgment in this proceeding; and
(c)legal professional privilege does not attach to the documents listed in Schedule 3 to this Order.
2.The Court declares that in relation to the documents listed and described in the applicant’s revised list of duplicate privileged documents dated 28 July 2006, legal professional privilege attaches to duplicates of:
(a)the documents listed in Schedule 1 to this Order; and
(b)the parts of the documents referred to in Schedule 2 to which privilege attaches under paragraph 1(b) above.
3.In relation to the applicant’s notice…
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
AGLC
AWB Ltd v Cole (No 6) [2006] FCA 1274
Case
[2006] FCA 1274
Decision Date
CaseChat Overview and Summary
AWB Ltd brought an application to the Supreme Court of South Australia against Cole, seeking a declaration of legal professional privilege over certain documents. The dispute arose from an investigation by the Australian Competition and Consumer Commission into the Australian Wheat Board’s involvement in the UN Oil-for-Food Programme. AWB sought to withhold certain documents from disclosure to the ACCC, arguing they were protected by legal professional privilege. The primary legal issues before the Court were whether legal professional privilege applied to the documents in question and, if so, to what extent.
The Court examined the nature of the documents, the circumstances of their creation, and the purpose for which they were prepared. The Court held that privilege attached to certain documents listed in Schedule 1, but only to specific parts of the documents listed in Schedule 2. Legal professional privilege did not apply to the documents listed in Schedule 3. The Court found that the documents in Schedule 1 related to legal advice and were prepared in a lawyer-client relationship for the dominant purpose of obtaining or giving legal advice. The Court also found that parts of the documents in Schedule 2 were prepared for litigation or a real prospect of litigation, thereby attracting privilege. However, other parts of these documents did not meet the criteria for privilege. The Court rejected the claim of privilege for the documents in Schedule 3, as they were not prepared for the dominant purpose of providing legal advice.
The Court's orders reflected its findings on privilege. It declared that privilege attached to certain documents as specified in the orders, while privilege did not attach to others. The Court dissolved the injunctions previously made against Cole, and dismissed the other motions without costs. It also dismissed the application but for the orders regarding privilege, and made no order as to the costs of the proceeding. The Court's decision clarified the scope of legal professional privilege in the context of the investigation and the disclosure of documents.
Orders
Orders of the court
1. The Court declares that in relation to the documents listed and described in the applicant’s further revised list of privileged documents dated 7 August 2006 as supplemented by the letters from the applicant’s solicitors to the Court dated 25 August 2006 and 5 September 2006:
(a) legal professional privilege attaches to the documents listed in Schedule 1 to this Order to the extent claimed by the applicant;
(b) legal professional privilege attaches to the documents listed in Schedule 2 to this Order only to the extent identified in paragraph 241 of the reasons for judgment in this proceeding; and
(c) legal professional privilege does not attach to the documents listed in Schedule 3 to this Order.
2. The Court declares that in relation to the documents listed and described in the applicant’s revised list of duplicate privileged documents dated 28 July 2006, legal professional privilege attaches to duplicates of:
(a) the documents listed in Schedule 1 to this Order; and
(b) the parts of the documents referred to in Schedule 2 to which privilege attaches under paragraph 1(b) above.
3. In relation to the applicant’s notice of motion dated 19 June 2006:
(a) the injunctions against the first respondent made by order of the Honourable Justice Kenny on 20 June 2006 and extended by the orders of the Honourable Justice Young made on 18 July 2006 are dissolved; and
(b) there be no order as to the costs of the notice of motion.
4. In relation to the first respondent’s notice of motion dated 24 July 2006:
(a) save for the orders of the Court made 26 July 2006 the notice of motion is otherwise dismissed;
(b) there be no order as to the costs of the notice of motion.
5. There be no order as to the costs of the proceeding.