Loscam Ltd v Brambles Holdings Ltd; Loscam Ltd v Brambles Holdings Ltd

In proceedings before the High Court of Australia, Loscam Ltd sought special leave to appeal against an order of the Full Court of the Supreme Court of Victoria, which had refused leave to appeal against an earlier order by Harper J. The underlying dispute involved allegations by Brambles Holdings Ltd that Loscam Ltd was in contempt of court for breaching orders made by Ormiston J of the Supreme Court of Victoria in 1989 and 1990.

The primary legal issue before the High Court was whether Harper J erred in refusing to order the production for inspection of certain documents discovered by Brambles Holdings Ltd, in respect of which Brambles Holdings Ltd had claimed legal professional privilege. Loscam Ltd argued that given the quasi-criminal nature of the contempt proceedings, the claim for legal professional privilege should be scrutinised more closely, particularly in relation to documents that might tend to exculpate Loscam Ltd from the contempt allegations.

Harper J had examined the documents on the basis that he must first determine if the description of each document in the affidavit met the test for privilege, and then whether the document itself was consistent with that description. He was satisfied that the descriptions were based on Mr Kerr's own knowledge or information from the document's creator, and that these descriptions were sufficient to establish privilege. While acknowledging the quasi-criminal nature of the contempt proceedings and accepting that individual documents should be examined to determine if they indicated Loscam Ltd was not guilty of contempt, Harper J ultimately found that documents tending to exculpate the defendant ought to be made available. The Full Court subsequently refused leave to appeal this decision without providing reasons.