Brambles Holdings Ltd v Trade Practices Commission

[1981] FCA 68

IN THE FEDERAL COURT OF AUSTRALIA)

1

NEW SOUTH WALES DISTRICT REGISTRY) NO. N.S.W. G44 Of 1978.

)

DIVISION GENERAL, 1

BETWEEN : BRAMBLES HOLDINGS LIMITED

Applicant

AND : TRADE PRACTICES COMMISSION

Respondent.

5 June 1981

REASONS FOR JUDGMENT

Franki J.

In this Notice of Motlon I gave judgment on 21 May 1981

which I hoped might substantially resolve the problems whlch

had arisen with regard to dlscovery.	I refer to that
judgment when I said:

“I consider that the most practlcal course

is for me to rule on such of the documents

referred to by senior counsel for the

applicant as I can without inspection and

to leave the parties to consider my

judgment before proceeding further. It

is possible that	any Issues remalning
undetermined may	be agreed by the partles.”

I laid down certaln tests whlch were summarized on the

latter half of page 11 when I said:

“I am therefore of the opinion that ln

order to attract legal	professlonal
privilege the document	must have been

2 .

brought into existence for the sole purpose

of submission to the legal adviser either

for obtaining legal advice or for use in

the litigation. Unless the document was

brought into existence for the purpose

of putting it before the legal adviser

legal professional privilege does not attach

to it. Whilst neither of the cases I have

mentloned deal specifically with the question

of copies I am satlsfied that legal professional

privilege attaches to a draft or copies of a

document whlch is itself entitled to that

privilege, at least if the exlstence of the

draft or copy represents a reasonably necessary

stage in the preparation f the document to

which privilege attaches."

I also added a quallfication in the second last

paragraph on page 18 which is:

"My declsion in relation to any document which

I have held not to be privlleged is sub~ect

to the qualification that any part of any such

document which does no more than reproduce

legal advlce obtained in relation to the

proceedings need not be made available for

inspection.	"
The effect	of my judgment, so far as it relates to the

documents under consideration In it, was that documents whlch

did not fall within category (ii) or (iil) set o u t in the

second affidavit of Miss Hannon and reproduced at page 6 of

my judgment were not privileged. It had not been necessary

for me to consider documents falling within category (vi) of

that affidavit but the applicant does not seek inspectlon

of any documents falling within that category.

As a result of further argument Slnce my ~udgment was

delivered it is necessary to deal with the posltion in

relation to documents about which	I made no specific findlngs
in that judgment.

3 .

The applicant seeks that I rule on each other document

by doing no more than relying upon the description of that

document in Miss Hannon's second affidavit, together with

any necessary inspection which I may be requested to make

and which I might feel to be justified.

The respondent argues that the basis of my ruling in

relation to each document in category (ii) or (iii) of Mlss

Hannon's second affidavit requires consideration of the sole purpose for which that document was brought into existence

and that neither the description in the affidavit nor any

other description of it would be sufficient to establish that

purpose.

I consider that the only practical way to deal with

this problem is to order that Miss Hannon file and serve a

further affidavit on or before 5pm. on 11 June 1981, listmg

each document for which privilege is still claimed by the

respondent and stating within which of the categories (ii)

or (ill) or (vi) that document is alleged to fall.

The documents which will need to be covered in the

affidavit are those in the schedule tendered today by senior

counsel for the applicant and marked Exhibit "A" , and for

whlch prlvilege is stlll claimed by the respondent.

I hope that once this affldavit is filed and served

there may be no problems of discovery still remaining. It is

my present intentlon, If necessary, to make an order for inspection of each document for which privilege is claimed and which the applicant still seeks to inspect and whlch is

4 .

not established to be within category (11) or (iii) or

(vi) of the categories in the second affidavit of Miss

Hannon.

It will also be necessary for Miss Hannon to speclfy

in her affidavit any document for which privilege is clalmed

for any part on the ground that that part does no more than

reproduce legal advice obtained in relatlon to the proceedings,

and any order of mlne would exclude any such part for which

that privilege were established.

I propose to stand the matter over to 9.30am on

25 June 1981 and reserve the question of costs. If in

the meantime, apart from the question of costs, the question

of inspection is no longer an issue, the partxes might be

kind enough to send a letter to the Dlstrict Reglstrar to

that effect and there will then be no need for anybody to

attend on the date fixed. I reserve the question of costs

and give liberty to either party to apply on 3 days notice

to the other party.

,

I c e r t l f y that t h l s and the 3

precedlngpages are a t r u e copy o f t h e	i
Reasons for JudgmentherelnofhlsHonour	I
Mr. Justice F R 6-l n/ /< /	I