Herron v HarperCollins Publishers Australia Pty Ltd

Herron v HarperCollins Publishers Australia Pty Ltd was a case heard by the Supreme Court of New South Wales. The dispute centred around the admissibility of certain documents produced under compulsion at a Royal Commission. The primary question before the court was whether these documents were protected under sections 118 and 119 of the Evidence Act 1995 (Cth) and section 17(2) of the Royal Commissions Act 1923 (NSW). Specifically, the court needed to determine if the documents were created for the dominant purpose of providing legal advice, which would render them subject to legal professional privilege.

The court examined the evidence provided in the affidavit of Jessie McKenzie, a solicitor, who testified that certain documents were related to legal proceedings and were prepared under a duty of confidence. The court found that one document, MFI1, was likely prepared for the dominant purpose of providing legal advice to Dr Herron, thus qualifying for protection under section 119 of the Evidence Act. However, the court was not satisfied that another document, MFI2, was prepared for the dominant purpose of providing legal advice, and therefore did not qualify for privilege under section 118 or 119. Similarly, the court determined that MFI3, despite being unwillingly produced, did not constitute a confidential communication within the meaning of the Evidence Act.

In conclusion, the court held that MFI1 was protected under section 119 of the Evidence Act, while MFI2 and MFI3 were not. This decision underscores the importance of establishing the dominant purpose for which a document was created when determining its admissibility in legal proceedings. The court's findings will have implications for future cases involving the disclosure of documents under compulsion at a Royal Commission.