Streimer v Tamas - [1981] FCA 123

CATCHWORDS

Discovery - Legal professional privilege.

BRAMBLES HOLDINGS LIMITED

v. TRADE PRACTICES COMMISSION.

N.S.W. NO.G.44

Of 1978.

FRANK1 J.

Sydney.

21 May 1981 5 June 1981 25 June 1981.

The question of costs has not yet been determined.

IN THE FEDERAL COURT OF AUSTRALIA)

NEW SOUTH WALES DISTRICT REGISTRY) No. G.

44 of 1978

GENERAL DIVISION

BETWEEN: BRAMBLES HOLDINGS LIMITED

Applicant

AND: TRADE PRACTICES COMMISSION

Respondent

21 May 1981

REASONS FOR JUDGMENT

FRANK1 J.

Brambles Holdings Ltd, the applicant, is the second

defendant in proceedings No.G.44

of 1978 brought by the Trade

Practices Commission

("the Commission") against it and eight

other defendants in which breaches

of s.45 of the Trade Practices

Act

1974

("the Act") are alleged and penalties are sought

i	pursuant to ss.76 and 77 of the Act and	an injunction is sought
pursuant to s.80 of the Act.

The proceedings

were commenced before

the current

Federal Court Rules, S.R. No.140

of 1979, were made and therefore

the relevant rules are those appearing

in S.R. No. 20 of 1977.

The effect of 0.2 r.1 of those Rules is that the Rules of the

High Court are applicable "subject

to any directions

of the Court

or a Judge". See also s.38	of the Federal Court	of Australia Act
1976.

The applicant filed an application

on 16 March 1981

seeking orders

That the plaintiff make, file and serve within

14 days

an affidavit making further and better discovery:

2 .

That the

claim of the plaintiff

to legal professional

privilege made by paragraph

3 of the affidavit

of Wynne Patricia

Hannon, sworn 27 January 1981, is not justified: and

That

plaintiff

make

available

for

inspection

number of documents which were identified in the Notice

of Motion

and

for

which the plaintiff has claimed legal professional

privilege.

No formal Notice for Discovery had been given pursuant

to 0.32

r.9

of the High Court Rules but it was agreed that

should treat this application as if the Commission had been

served with a Notice for Discovery and

it had sought to comply

with obligations then falling upon a party

so served.

The first Affidavit

of Discovery filed

on behalf of the

Commission was that

of Glen Catherine Smith, sworn on 15 January

1980. The schedule to this affidavit listed a number of documents

of various types and claims were made for privilege. A further

and much more detailed Affidavit

of Discovery was sworn on 27

January 1981 by Wynne Patricia Hannon and this affidavit referred

to 31 volumes of documents and claimed privilege in respect of

certain documents. The documents referred to in the affidavit

were described in an exhibit

to the affidavit which comprised

537

pages ("the Schedule"). The exhibit contained a

list of

documents in the first four volumes

of documents referred to in

the affidavit and described in it as "Documentary material of the

plaintiff and its solicitors". Various documents in the schedule

were marked to show…

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.

Continue reading Streimer v Tamas

Details

AGLC: Streimer v Tamas [1981] FCA 123
Case: [1981] FCA 123
Decision Date: 21 May 1981

CaseChat Overview and Summary

The case of Streimer v Tamas involves a dispute over legal professional privilege and discovery in litigation. Brambles Holdings Limited, the applicant, is seeking discovery from the Trade Practices Commission, the respondent, in proceedings where breaches of the Trade Practices Act 1974 are alleged. The central legal issue is whether certain documents claimed to be privileged by the respondent are indeed protected by legal professional privilege and thus exempt from discovery. The court, Franki J., reviewed the principles governing legal professional privilege, emphasizing that for a document to be privileged, it must have been created for the sole purpose of submission to legal advisers for obtaining legal advice or for use in litigation. The court examined various categories of documents and found that many did not meet the criteria for privilege, while others contained privileged information that needed to be redacted before production. The court ordered further affidavits to clarify which documents still claimed privilege and scheduled a future hearing to address unresolved discovery issues.

Orders