T.N.T. Management Pty Ltd & Ors v Trade Practices Commission & Ors Brambles Holdings Ltd v Trade Practices Commission
[1983] FCA 109
•08 JUNE 1983
And: TRADE PRACTICES COMMISSION; TNT MANAGEMENT PTY. LIMITED; ANSETT TRANSPORT
INDUSTRIES (OPERATIONS) PTY. LIMITED; ASSOCIATED STEAMSHIPS PTY. LIMITED;
MAYNE NICKLESS LIMITED; YOUNGS TRANSPORT PTY. LIMITED; EXPRESS FREIGHT PTY.
LIMITED; IPEC HOLDINGS LIMITED; INTERSTATE PARCEL EXPRESS CO. PTY. LIMITED
Re: TNT MANAGEMENT PTY. LIMITED; ANSETT TRANSPORT INDUSTRIES (OPERATIONS) PTY.
LIMITED; ASSOCIATED STEAMSHIPS PTY. LIMITED
And: TRADE PRACTICES COMMISSION; BRAMBLES HOLDINGS LIMITED; MAYNE NICKLESS
LIMITED; YOUNGS TRANSPORT PTY. LIMITED; EXPRESS FREIGHT PTY. LIMITED; IPEC
HOLDINGS LIMITED; INTERSTATE PARCEL EXPRESS CO. PTY. LIMITED
No. G89 and G79 of 1983
Practice and procedure
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION
Smithers J.
McGregor J.
Sheppard J.
Practice and procedure - postponement of trial - filing of supplementary affidavit of discovery six weeks before hearing of complex trial due to commence - 10,000 additional pages of documents disclosed - majority of documents coming into party's possession after original discovery - impact of disclosure of so many documents upon other parties' readiness for trial - claims for privilege from inspection of some documents on grounds of legal professional privilege and without prejudice nature of documents - High Court Rules, Order 32, Rules 9, 18 and 20(2)(a).
SYDNEY
#DATE 8:6:1983
1. The appeal be allowed.2. The order of the Court made on 27 April, l983 that the hearing of the trial of matter No. G66 of l978 between Trade Practices Commission and Brambles Holdings Limited and other parties proceed for hearing on l7 May, l983, be set aside.
3. In lieu thereof the hearing of such matter proceed on l5 June, l983.
4. Otherwise the notices of motion filed by Brambles Holdings Limited on l9 April, l983, in matter No. G44 of l978 be dismissed.
5. The appellant pay two-thirds of the costs of the respondent the Trade Practices Commission.
THE COURT ORDERS THAT the date for the hearing of the trial of matter No. G44 of l978 between the Trade Practices Commission and TNT Management Pty. Limited and other parties be postponed from l7 May, l983, to l5 June l983, and that the respondent to the appeal the Trade Practices Commission pay the appellants' costs of the appeal. Otherwise the Court makes no order upon the appeal.
In this appeal, I have had the advantage of reading the reasons for judgment prepared by each of the other members of this Court. I agree with those reasons and with the orders which are proposed therein.
In this appeal, I have had the advantage of reading the reasons for judgment prepared by each of the other members of this Court. I agree with the reasons expressed therein concerning the vacation of the hearing date of 17 May 1983 and the substitution by consent of the Appellants and the Respondents of 15 June 1983 as the date on which the hearing of these proceedings is to commence. On the question of costs I would make the order proposed by Sheppard J..
These two interlocutory appeals were heard consecutively on 4, 5 and 6 May l983. The appellants in the first appeal are TNT Management Pty. Limited, Ansett Transport Industries (Operations) Pty. Limited and Associated Steamships Pty. Limited (hereinafter referred to for convenience as 'TNT'). The appellant in the second appeal is Brambles Holdings Limited ("Brambles"). The four appellants are defendants in a pending proceeding in which the first respondent in each appeal, the Trade Practices Commission ("the Commission"), seeks to recover penalties and an order for an injunction against the appellants and certain other companies for breaches of some of the provisions of Part lV of the Trade Practices Act l974 (the Act).The learned judge at first instance had been asked by TNT, inter alia, to vacate the hearing date, viz. l7 May l983. By the appellant, Brambles, his Honour was asked to order that the action against it be dismissed, the hearing date of l7 May l983 vacated and that the respondent be ordered to file a further and better affidavit of discovery in relation to its claim for legal professional privilege. Orders as to costs were also sought. The judge at first instance refused these orders. Against these orders this appeal is brought.
The action has a long history. It was commenced in l978. As might be expected in a case of this kind, there have been many interlocutory proceedings and quite separate from the present proceedings, appeals to this court, and even to the High Court. Such an action by common consent would be, and has been, one difficult of management with quite obviously a large body of evidence expected to be called. Twelve weeks had been estimated for its hearing which was to have commenced on l7 May l983.
Discovery was sought at an early stage on behalf of the defendant TNT; but it is common ground that the application made by notice served in accordance with Order 32, Rule 9 of the High Court Rules was taken to have been sent on behalf of all defendants to the respondent. The form of the notice being No. 3O in the First Schedule to the said Rules required the respondent, within fourteen days, to answer on affidavit stating documents which 'are or have been in your possession or power' relating to the matters in dispute; and what it knew as to the custody of such as 'have been but no longer are' in that possession.
In answer to that notice on behalf of the respondent an affidavit dated 27 January l98l was sworn, the deponent of which was Wynne Patricia Hannan. Subsequently, later affidavits by the same deponent were sworn viz. 8 May, 27 May and ll June all l98l and one by Graham Walker on l3 April l98l.
Events immediately relevant to this appeal began on 3l March l983. On that day the then senior counsel for TNT sought that the date already fixed in December l982 for hearing viz. l7 May l983, be vacated. His reason for so applying was that he himself was briefed in other lengthy litigation. It appeared that litigation would preclude his appearance on l7 May l983; that his client would not be able to engage appropriate senior counsel who could familiarise himself with the brief in the time available. Other parties indicated various attitudes to this application which, in one sense, was made because of the difficulties in which TNT found itself. However, senior counsel then appearing for the respondent did mention that on 5 April l983 there would be filed a further affidavit of discovery on behalf of the respondent though not conceding that to be a necessary course. He did not mention its length or refer to the documents to be discovered. It was filed. Copy of this affidavit was served on 6 April l983. It had been sworn on 3l March l983. By it there were discovered lO,OOO pages of material enclosed in l7 volumes.
On l2 April l983, a Notice of Motion was taken out seeking, inter alia, a vacation of the hearing date. It was heard on l8 April l983. The orders sought in it were refused. On 27 April l983 his Honour orally delivered Reasons for his decision.
The appeal by TNT was argued in part before us. The parties to it have resolved their dispute by agreeing to postpone the hearing date to the l5 June l983. They have asked this court to resolve a consequential matter on which they are unable to agree, viz. what is the appropriate order for costs of the appeal.
In the appeal by Brambles, counsel has first argued that the action against his client should be struck out. He refers to the High Court Rules (applying because of the time of commencement of the action) Order 32 'Discovery and Inspection' and Rule 2O headed 'Non compliance with order for discovery or inspection'. Sub-Rule (2)(a) enables a court to dismiss an action for 'want of prosecution' where e.g. a party has failed to give discovery or inspection of documents. He cited Birkett v. James (l978) A.C. 297 at p.3l8 per Lord Diplock as setting the principles on which a court might act in so doing, viz. _
'The power should be exercised only where the court is satisfied either (l) that the default has been intentional and contumelious, e.g. disobedience to a peremptory order of the court or conduct amounting to an abuse of the process of the court; or (2) (a) that there has been inordinate and inexcusable delay on the part of the plaintiff or his lawyers, and (b) that such delay will give rise to a substantial risk that it is not possible to have a fair trial of the issues in the action or is such as is likely to cause or to have caused serious prejudice to the defendants either as between themselves and the plaintiff or between each other or between them and a third party.'
He has referred us to the dates on some of the documents newly discovered, as giving rise to the inference that they were in the possession of the respondent even before the affidavit of 27 January l98l was sworn; when they did come into the respondent's possession has not been disclosed. The want of prosecution on which he relies is the failure to discover or make available these documents earlier when the respondent had, in effect, already had opportunity to do so yet allowed the parties, including Brambles, to be under a misapprehensiion as to what documents were available to the respondent for use in its case against Brambles.
His arguments are summarised in written submissions. It is not necessary to refer to them in more detail.
In what follows we accept that the respondent thought it necessary to draw the parties' attention to the existence of the relevant documents.
Senior counsel for the respondent submitted that there was no obligation on his client to have filed the affidavit dated 3l March l983; or to have made available the documents to which it referred; that the Notice for Discovery was answered by the affidavits filed in response to it; that it did not impose a continuing obligation except as to documents overlooked when the affidavit or affidavits were sworn. He referred to the words in the form 'are or have been' as marking out the obligation on the receiver of such a Notice; that once answered the Notice was exhausted: a party seeking further discovery was not entitled to serve without more a further Notice. He referred to Order 32 Rule l8. He contended that the affidavits sworn should be accepted as truthfully making the statements in them; that it ought not be inferred that the documents mentioned in the affidavit of 3l March l983 or any of them were in the power or possession of his client at any time before any of the earlier affidavits were sworn. He submitted there was no basis for striking out the action; further, that upon a consideration of the documents to which the affidavit referred it was clear that there was nothing of any particular significance warranting such consideration as ought hold up the hearing especially now the date had been by agreement postponed until l5 June l983.
On 6 May l983 in an oral judgment, we rejected the submissions that the action against Brambles should be struck out stating then that we would deliver reasons for this decision later. What follows are my reasons for arriving at this decision.
I consider Order 32 Rule 9 contemplates a discovery in response to a Notice; that once an appropriate affidavit is filed which, in terms, complies with it, there is no continuing obligation except in respect of documents which should have been referred to in it. Further, that the scheme of Order 32 indicates that a party seeking further or other orders of discovery may have recourse to Rule l3, l4 and l8; in the case of failure to give discovery as required by the Rules, Rule 2O, (2)(a) may be invoked.
The respondent may have been unwise in failing to refer to, or to bring to the attention of, all parties the documents which have been put forward as relevant in the affidavit sworn on 3l March l983, but, even then, not served until 6 April l983. In litigation of this complexity, parties, particularly a prosecuting party, aware of the imminence of the hearing, should avoid placing another litigant in a position where, after years of waiting, commencement might have to be deferred. Whether or not there was an obligation to file the further affidavit of 3l March l983 is unnecessary to decide since, in fact, it has been filed and documents to which it refers produced for inspection except those the subject of a claim for privilege, to which I refer later.
Cases which refer to this subject are collected in 'Australian High Court and Federal Practice' CCH Australia Limited p.6l,l83. I do not accept the contention that there has been, as is set out in Birkett v. James (supra) 'default.....that was intentional and contumelious' or amounting to an 'abuse of the process of the court' or that there has been delay which is '....inordinate or inexcusable' or that there is '....substantial risk that it is not possible to have a fair trial of the issues in the action....' or to cause '....serious prejudice....' to the appellant.
Our decision was reserved upon a further matter upon which counsel for Brambles offered arguments, viz. the question of discovery and privilege. He submitted that the learned trial judge should have acceded to an application for an order for further and better discovery based upon a contention that the affidavit of 3l March l983 was an affidavit which made a claim to legal and professional privilege which was 'bad'. He conceded that in the court below the trial judge correctly treated his client as being a party in the same position as if he had earlier given a Notice for Discovery, this having been done by TNT and thereafter the affidavit of 27 January l98l being treated as if given following a Notice for Discovery. He referred to a further Notice filed on behalf of his client set out in an affidavit of 3 May l983 of Dermot James Ryan which he sought to read. The Notice, said to have been forwarded on that date (i.e. the day before this appeal was listed) pursuant to High Court Rules O.32 R.l4, omitting formal parts, reads _
'NOTICE PURSUANT TO O.32 Rl4.
YOU ARE REQUIRED TO PRODUCE THE DOCUMENTS LISTED IN THE SCHEDULE HERETO FOR INSPECTION OF THE SECOND DEFENDANT OR ITS SOLICITORS AND TO PERMIT THE SECOND DEFENDANT OR ITS SOLICITORS TO TAKE COPIES OF ALL SUCH DOCUMENTS.
.....
THE SCHEDULE. THE DOCUMENTS DESCRIBED IN SCHEDULE l OF THE AFFIDAVIT OF WYNNE PATRICIA HANNON SWORN ON 31 MARCH l983.'
Order 32 R.l4 reads _
'Notice for inspection of documents
(l) A party may, at any time, by notice in writing, give notice to another party in whose writ, pleadings, particulars or affidavits reference is made to a document, to produce that document for the inspection of the party giving the notice, or of his solicitor, and to permit either of them to take copies of the document.
(2) (Effect of non-compliance) Where a party does not comply with a notice given under the last preceeding sub-rule, he may not afterwards put a document referred to in the notice in evidence on his behalf in the proceedings except in accordance with the next succeeding sub-rule.
(3) (Excuse from compliance) Where the party who has not complied with the notice satisfies the Court or a Justice that the document relates only to his own title, he being a defendant in the proceeding, or that he had some other cause or excuse which the Court or Justice deems sufficient for not complying with the notice, the Court or Justice may allow the document to be put in evidence on such terms as to costs and otherwise as the Court or Justice thinks fit.'
It was said that the purpose of serving the Notice was, in effect, to meet any argument that the affidavit of 3l March l983 was not an Affidavit of Discovery, i.e. as I understand the argument, by treating it as such and then applying to it the procedures which O.32 provides for inspection of documents in e.g. 'affidavits'. The First Schedule in the affidavit of 3l March l983 included Volumes Nos. 34-5l and Volumes A, B, C, D and E; privilege is claimed in respect of the lettered volumes. Counsel submitted that the court was seized with the issue of privilege anyway. He argued there was nothing to prevent a party giving a subsequent Notice should he have cause to believe the affidavit in satisfaction of the first notice does not disclose all the documents. He referred to what apparently was intended as a claim for legal professional privilege in respect of documents in Volumes A to D referred to in the affidavit of 3l March l983. He submitted that the affidavit made, in respect of privilege a claim 'unknown to the law'; so there should be an order for further and better discovery; or for the production of the documents. He referred to Grant v. Downs (l976) l35 C.L.R. 674 at p.688 and National Employers' Mutual General Insurance Association Ltd. v. Waind (l977) l4l C.L.R. 648 at p.656. He submitted the test was, what is the purpose for the creation of these documents; if documents were brought into existence solely for use in legal proceedings they would be privileged. He submitted that the effect of this decision was to abrogate previous classes of legal professional privilege including e.g. what might have attached to 'without prejudice letters". As to the documents referred to in Volumes A to D, he submitted that they were a class of documents which, if discovery attached, would be discoverable; so, whether there was a legal duty to discover them or not, his client was entitled to an order from the court in respect of them. He pointed out that though the evidence in Mr. Ryan's affidavit was as to service of a Notice, it was given before the hearing and judgment of the trial judge who rejected the evidence about it. However, a Notice for Discovery apparently dated l9 April l983 was filed. The wording of the affidavit founding the claim for privilege was, he submitted inadequate; the description of the documents was inconsistent with the claim. He referred to Woods v. Martins Bank Ltd. (l959) l Q.B. 55 at p.6O; Riddick v. Thames Board Mills (l977) Q.B. 88l at p.893.
Senior counsel for the respondent objected to the claim of privilege being examined in these present proceedings and to the introduction of any fresh evidence offered in support of arguments in the appeal; in particular to the introduction of Mr. Ryan's affidavit. He submitted that without a fresh Notice or a fresh order for discovery, there was no obligation to give discovery; this court should not consider the question of privilege. However, he submitted that even if, in the absence of obligation to give discovery, the filing of the list of documents referred to in the affidavit created an obligation to give discovery, then, in respect of the documents for which privilege was claimed, his client would not object to this court examining them. He submitted the grounds of appeal sought an order only that the plaintiff file a further and better affidavit of discovery. He pointed out that the claim for inspection did not specify any particular documents in Vols. A to D; yet some were, as described, obviously privileged, e.g. counsel's brief.
His submission included that the claim of privilege had been correctly formulated; that, on the face of the description of the documents, the court would conclude they related solely to the litigation and were in the scope of legal professional privilege. He submitted that, in respect of documents in Vol.A, the claim, as formulated in the affidavit of 3l March l983 para.7, and in the affidavit of l9 April l983 para.3, was sufficient to support privilege; that the description of the documents indicates they were solely related to the litigation. As to Vol.B, he referred to paras.8 and 9 respectively of the same affidavits; that the sworn affidavit of Miss Hannan should be accepted in preference to assertion of counsel. As to Vol.C, he relied on para.9; that, 'without prejudice' discussions between parties are the subject of a separate head of privilege; as to the document 'Certain handwritten notes of Mr. Bannerman', he referred to Halsbury's Laws of England 4th ed. Vol.l3 paras.79-81 and 94; Phipson on Evidence l3th ed. p.3O4, para.l5-l8.
As to Vol.D, he relied on para.lO of the affidavit of 3l March l983; the description of the documents was not inconsistent with the claim.
As to Vol.E, he referred to para.ll of the affidavit of 3l March l983 and para.7 of the affidavit of l9 April l983; that there was an inescapable inference that they were brought into existence solely for the purpose of use in these proceedings.
I have not attempted to refer to all of the arguments of counsel for the parties.
In my opinion unless the procedures referred to in O.32 are properly invoked, there is no obligation on the respondent to update discovery, as I have said, except by supplementary affidavit in the case of documents which were within the description 'are or have been' in its possession before 27 January l98l. The words 'are or have been' were derived, no doubt, from Order XXXl Rule l2 of the Rules of the Supreme Court which were in the Schedule to the Judicature Act l875. Our attention has been drawn to James v. Plummer (l888) 23 L.J.N.C. lO7 (James) which is referred to in the authoritative work, Bray's Digest of the Law of Discovery 2nd ed. published in l9lO in the notes there on Order XXXl Rule l2. It supports that documents coming into a party's possession after the making of a first affidavit of discovery need not be scheduled. From the appellant's viewpoint it was a stronger case for requiring updating of the discovery affidavit than is the instant case; since the second affidavit there was sought and ordered after an application to the court following omission to refer to documents in a first affidavit. The further affidavit limited the discovery to the date of the original affidavit. Grantham J. in Chambers refused to order the plaintiffs to make a further and better affidavit. On appeal it was urged that the plaintiff must search for, find and give discovery of documents up to date. But the court said that to require a further affidavit up to date would be 'to cast a burden of intolerable weight upon litigants and add enormously to the cost of litigation'. James was not cited in argument nor referred to in any edition of Halsbury's Laws of England. It was referred to in the Annual Practice l889 llth ed. at p.526 and was last quoted there in its 8Oth edition l963 at p.7l6. The reason for its eventual disappearance from that work is to be inferred from what is said in the preface to the llth edition thereof _
'...the first necessity of a book of practice is that it should not grow too unwieldy for the hand or too heavy for the bag, and to secure this it is necessary that the old matter should give place, to a greater extent than it has hitherto done, to the new."
Cases appearing in Halsbury's Laws of England 4th ed. Vol.l3 para.46, and referred to in argument, viz. Mitchell v. Darley Main Colliery Co. (l884) l Cab & El 2l5 and Myers v. Elman (l94O) A.C. 282 deal with a problem different from the one before this court and have no application. I do not accept that the appellant may rely on its action on 3 May l983, the day before the appeal commenced, to strengthen its argument. But since what is proferred by the respondent i.e. the document (affidavit) of 3l March l983, is at least in form, an affidavit of discovery, I will offer my own comments on the claim of privilege as formulated. I do not agree that there is any special duty as to discovery on the respondent, if it is the Crown. Nor do I understand Grant v. Downs (supra) to attempt exhaustively to state all the categories of legal professional privilege.
I am of the view that so long as the sense of the "sole purpose" test as set out in Grant v. Downs (supra) at p.688 is put forward in a claim for the relevant privilege, there need be no literal adherence to a form of words. The claim made in the affidavits referred to, together with descriptions of the documents listed, is sufficient to satisfy that test as to Vols.A, B, C, D and E, particularly as that test is reiterated and, to some extent, perhaps, reformulated in the National Employers' Mutual General Insurance Association Ltd. v. Waind (supra) per Mason J. at p.656. I consider it relevant to note that in that case, as in Grant v. Downs (supra), there was a positive indication of possible at least duality of purpose in respect of documents the subject of dispute: in Waind's case (supra) they might have been used for consideration by an insurer before litigation, i.e. to obtain information to inform itself as to whether it should pay compensation or dispute liability; and in Grant v. Downs (supra) the documents furnished information as to breaches of discipline and faults in security, subjects on which the defendant might well seek and record information quite apart from using that information in its litigation. Accordingly, the use of such a word as "sole" or a statement which asserted otherwise the purpose for which a document came into existence was called for to sustain the privilege. But in the case before us, except in the supposition of a counsel for the appellant, there is no basis for inferring some other purpose.
I do not overlook that there may be other bases on which documents can be privileged which may be able separately to be established, e.g. without prejudice communications - see Whiffen v. Hartwright (l848) ll Beav.lll 5O E.R. 759; Rabin v. Mendoza & Co. (l954) l A.E.R. 247; Phipson (supra) p.3O4 (para. l5-l8 p.374 para.l9-lO); The Supreme Court Practice l982 (Centenary Edition) p.459. However, if they are otherwise within the "sole purpose" test, the efficacy of e.g. the "without prejudice" test, need not be crucial.
In my opinion, the affidavit of 3l March l983 was sufficient to maintain a claim for privilege from inspection of the documents in Volumes A to E. The submissions by counsel for Brambles are rejected.
Brambles appeal succeeds, perforce, in that the date for the hearing of the matter involving TNT MANAGEMENT PTY. LIMITED, ANSETT TRANSPORT INDUSTRIES (OPERATIONS) PTY. LIMITED and ASSOCIATED STEAMSHIPS PTY. LIMITED is already, by agreement, vacated. It is to come on for hearing on l5 June l983. These matters are obviously to be heard together. Accordingly, I would propose that the hearing date in the case concerning Brambles be vacated and that it too should be fixed for l5 June l983. In all other respects the appeal is dismissed. The appellant, Brambles, I would propose should pay two thirds of the respondent's costs of the appeal.
In the appeal of TNT MANAGEMENT PTY. LIMITED, ANSETT TRANSPORT INDUSTRIES (OPERATIONS) PTY. LIMITED and ASSOCIATED STEAMSHIPS PTY. LIMITED this court was asked to decide the only outstanding question i.e. as to costs. The order I would propose is that each party pay its own costs of the appeal.
These two interlocutory appeals were heard consecutively on 4, 5 and 6 May last. The appellants in the first appeal are TNT Management Pty. Limited, Ansett Transport Industries (Operations) Pty. Limited and Associated Steamships Pty. Limited (hereinafter referred to for convenience as "TNT"). The appellant in the second appeal is Brambles Holdings Limited ("Brambles"). The four appellants are defendants in a pending proceeding in which the first respondent in each appeal, the Trade Practices Commission ("the Commission") seeks to recover penalties and an order for an injunction against the appellants and certain other companies for breaches of some of the provisions of Part IV of the Trade Practices Act 1974.
The proceedings were instituted in 1978 and have a protracted history. The rules which apply to them are not the present rules of the Court but the rules of the High Court of Australia. The hearing of the proceedings had been fixed to commence before a judge of this Court on 17 May, 1983. In judgments delivered on 18 and 27 April last the learned judge dismissed applications brought by the four appellants in which they sought the vacation of that date. Particularly in the Brambles application, judgment in which was delivered on 27 April, there arose other questions. One of those was whether or not the proceedings against Brambles should be dismissed because of default on the part of the Commission in making discovery. Such default was said to be prolonged and inexcuseable and to involve conduct on the part of the Commission which was intentional and contumelious. The Brambles appeal also raised other questions more directly connected with the Commission's obligation to make discovery and afford inspection of discovered documents.
No other defendants in the principal proceedings have sought to be heard in the appeals. There are five of them. They take a neutral attitude and have submitted to such order as the Court sees fit to make.
The parties in the TNT appeal, during the course of the hearing, reached agreement on what the outcome should be. They agreed that there should, subject to our approval, and that of the trial judge, be a deferment of the hearing of the proceedings for approximately one month. Subject to such approval it was agreed that the trial commence on 15 June next rather than 17 May. Unfortunately the parties to the TNT appeal were unable to agree on costs and have asked us to decide that question.
There was no agreement as to the outcome of the Brambles appeal.
At the conclusion of the hearing of both appeals the Court said that it unanimously took the view that Brambles had not made out a case which would call for the dismissal of the proceedings against it. The Court further said that the hearing should commence on 15 June next. Its decision on other outstanding questions, including the question of costs in the TNT appeal, was reserved.
What follows are my reasons for joining in the decisions already announced and my proposals, and the reasons therefor, for the determination of the other questions raised by the appeals.
In order that the matters in contest may properly be understood it is necessary to recount some of the recent history of the matter. On 31 March last the learned primary judge dealt with an application made on behalf of TNT seeking the vacation of the hearing date fixed for 17 May. The ground of that application was that the then senior counsel for TNT would be unavailable for the hearing because of another and unavoidable commitment. He had been in the case for a long time and prejudice, so it was said, would be caused TNT if another senior counsel had to be retained at so late a stage. His Honour refused the application.
In the course of the discussion which transpired before his Honour reference was made to the fact that it had been foreshadowed in correspondence from the Commission's solicitor that the Commission might or would be making further discovery of documents. Discovery and inspection had long since taken place. Affidavits of discovery had been sworn and filed on behalf of the Commission in January, April, May and June of 1981. The affidavits were sworn by Wynne Patricia Hannon.
At the hearing which occurred on 31 March Mr. Cole, Q.C., having referred to the question of further discovery, said that his instructing solicitor was not able to say what, if any, effect that would have. He continued, "We do not know at this point of time what the nature of the documents which are to be discovered is . . . We do not know its extent or whether that in turn will produce any problems".
On behalf of the Commission Mr. Priestley, Q.C., its then senior counsel, said, "Although the letter (a reference to a letter from the Commission's solicitor) mentions a further affidavit of discovery, the question whether an affidavit should be sworn and filed or whether simply we would make the letters available under cover of a letter . . . . as a preferable course has not been finally resolved. . . . . We would not anticipate that there would be any difficulties of the kind that would cause any problems about the date arising from these documents".
On 6 April, 1983, after the conclusion of the Easter holiday period, there was filed on behalf of the Commission a further affidavit of discovery. The affidavit had been sworn on 31 March, 1983, the day the application for vacation of the hearing date was heard, by the aforesaid Wynne Patricia Hannon. The affidavit purported to be an affidavit of further and better discovery. Appended to the affidavit was a schedule describing various documents. The schedule comprised some 99 pages. In short it disclosed that there were 22 volumes of documents. Eighteen of these numbered 34-51 comprised documents which were to be made available for the inspection of the defendants to the proceedings. The volumes were numbered in that way because the earlier documents which had been discovered and made available for inspection were contained in volumes numbered 1-33. Five volumes of documents lettered A - E inclusive were the subject of a claim for privilege from inspection. With copies of the affidavit there was delivered to each defendant's solicitor a letter in which it was said that the affidavit was filed and served by the Commission without any admission by it that it was obliged by the rules of Court so to do. It was said that the documents described in volumes 34-51 of the affidavit would be available for inspection by appointment in the Sydney office of the Commission from 6 April, 1983, for two weeks. The Commission was said to be unable to provide facilities for the photocopying of documents by the defendants but had no objection to the documents being removed for the purposes of copying provided that an officer of the Commission accompanied the documents at all times.
Subsequently the defendants were able to deduce that the further discovery involved the production for their inspection of 10,000 pages of documents. The difficulties which were involved in obtaining copies are well described in the affidavit of Mr. J.R. King who is the solicitor for the appellants in the TNT appeal. Suffice to say that in the case of those appellants the completion of the copying process had only occurred about the time the hearing of these appeals commenced. Part of the problem was that only one officer from the Commission was made available to supervise the copying process so that he could not continuously be available at the premises of any one defendant. It should be said that upon the basis of what the learned primary judge was told in April last, he might have concluded with every justification that the copying task would have been completed much earlier than it in fact was. We have, therefore, the benefit of hindsight in this respect.
It should also be said that the evidence in the Brambles appeal does not reveal that Brambles itself had as much difficulty as the appellants in the TNT appeal in obtaining copies of the documents.
It is difficult for a court to make an accurate assessment of the impact upon the appellants and their legal representatives of the filing of Miss Hannon's further affidavit of discovery. A consideration of the descriptions of the documents in the schedule to it might reasonably have led them to think that copies of some of the documents were already in their possession and that others might not be greatly significant for the outcome of the proceedings. But they could not be sure and, on any view, there remained a vast quantity of documents which had not previously been produced and which might be of substantial importance. Certainly no counsel or solicitor could do otherwise than give careful consideration to the documents and the place they might have in the case. In this respect copying was only the first step. The collation of the documents, their integration with other documents already held, the obtaining of views on the documents from employees of the companies concerned (and perhaps from experts as well) and their ultimate appreciation by the legal representatives were later and more fundamental steps which the Commission's action had made necessary.
From 6 April to 17 May is a period of a little less than six weeks. The defendants were thus called upon to make a proper assessment of the documents at a time when they were in their last weeks of preparation for the hearing. The appellants in the TNT matter had had to retain a new senior counsel. The Court has his assurance, which I would accept unreservedly, that he and his junior have for some weeks now been working continuously and exclusively on this case and that the additional documents produced as a result of the Commission's further discovery have imposed and will continue to impose a substantial extra burden on counsel, solicitors and clients alike. Indeed, in the case of the appellants in the TNT appeal the examination of the documents, because of the copying difficulties earlier mentioned, had not been able to be commenced even by the time the hearing of the appeals began.
Underlying the Commission's submissions to the Court was the suggestion that the difficulties of which the appellants complained was exaggerated and overstated. This suggestion may have sprung, to a degree, from a feeling of frustration within the Commission's camp because of what it and its legal advisers may regard as an overly technical approach to the litigation by the defendants. As mentioned earlier the case has a long history. That is because of the substantial number of interlocutory applications which have been made in relation to various procedural steps taken in it. The Commission has had a measure of success in resisting these applications and has been successful in some of the interlocutory appeals that have been taken by the defendants against the decision of the primary judge. Nevertheless the fact remains that the filing of Miss Hannon's affidavit of 6 April, 1983, did impose upon the defendants the substantial burden to which reference has been made. The consequences of its filing must be dealt with as a separate matter and in the light of factors relevant and only relevant to the consequences of the production of so many documents. It is perhaps unnecessary to add that the defendants are not only not bound to accept the Commission's judgment as to the significance of the documents as a guide to the importance to be attached to them by them; their legal advisers have a positive obligation to the defendants to apply their own minds to the documents and the significance of them and to make their own judgment about the degree of importance they have or may have for the outcome of the case.
The next matters to be referred to are the judgments of the learned primary judge.
In his judgment delivered on 18 April last in which he dismissed the TNT application his Honour referred to his dismissal of the application made on 31 March, 1983, for the vacation of the date for hearing. His Honour went on to deal with the problem created by the filing of Miss Hannon's affidavit of 31 March, 1983. He referred to the relevant High Court rule in relation to discovery and reached the conclusion that there was no obligation on the part of the Commission to make further discovery in respect of any document not in its possession or power at the time it discharged its original obligation to make discovery in 1981. He considered that all but very few of the documents referred to in the schedule to Miss Hannon's affidavit had come into the Commission's possession more recently than 1981. There is no statement which I can find in Miss Hannon's affidavit which is explicit on this point but there appears to be a deal of common ground concerning his Honour's assumption and, in any event, many of the documents bear dates later than 1981 with the result that they did not come into existence until after that year and thus could not have been in the Commission's possession or power at the relevant time. His Honour found that no more than 14 documents were in the Commission's possession or power at the time it originally made discovery and said that these were the only documents which it was obliged to discover. There was no obligation in relation to the remainder. His Honour said:
"I see no reason why any documents, other than those which should have been discovered initially, should have been discovered in April or indeed at any time prior to that.
There is evidence that the documents referred to in the supplementary affidavit number perhaps 9,000 or 10,000 pages, and an effort is being made by the applicants in this motion to photocopy every page and there have been some mechanical problems in doing this. Apparently the importance of this material has not yet been assessed by the applicants.
So far as I can see, the number of documents which fell within Order 12 Rule 9 at the time the first affidavit was sworn was no more than 5 to 14; and, indeed, if one took the view that the relevant date was 11 June 1981, the number of documents which might have been available at that time would still have been comparatively few."His Honour then referred to a statement by senior counsel for the TNT companies that his clients would be prejudiced if the date were not vacated. His Honour went on to refer to the difficulties which arise when there has to be a change of counsel and concluded as follows:
"It follows from what I have said that there is only a very small number of documents which ought to have been discovered which have not been discovered. I cannot see any reason why the matter should be further adjourned and I refuse to vacate the date. I will adjourn the question of privilege to a later date. I can deal with it next Tuesday, a week from today. I have got to be in Melbourne for the rest of the week."The judgment delivered by his Honour was delivered orally. After its delivery there ensued a discussion concerning the date upon which the case would commence. His Honour asked counsel what their attitude would be to postponing the hearing for a week. In the discussion that ensued various alternatives were discussed. The discussion concluded with his Honour saying:
"It follows from what I say that there is only a very small number of documents which ought to have been discovered which have not been discovered. I cannot see any reason why the matter would be further adjourned and I refuse to vacate the date."It seems appropriate to say at this point that his Honour's reason for refusing the application was based upon his view that the Commission's obligation to discover had been discharged in 1981 and that it was under no obligation to make the further discovery which it did. What is not mentioned in his reasons is the circumstance that whether there was any further obligation upon the Commission to make further discovery or not, its action in filing the affidavit of 31 March had thrust upon the defendants in the proceedings a further 10,000 pages of documents, all of which would require consideration and examination by the defendants and their legal advisers. That was the matter upon which the defendants seeking the vacation of the date principally relied. To them the question of whether or not the Commission was bound to make further discovery was not of prime importance.
His Honour's judgment of 27 April, 1983, refusing the Brambles applications referred to the view expressed in his earlier judgment that there was no obligation resting upon the Commission to make further discovery except in relation to a small minority of the documents. He was concerned to deal with the submission of counsel for Brambles that the proceedings against it should be dismissed or struck out upon the ground of prolonged and inexcusable delay on the part of the Commission in making discovery and upon the ground that the Commission had sought to avoid a fair discovery. His Honour rejected this submission and also submissions seeking payment as between solicitor and client of costs thrown away. He rejected arguments for yet further and better discovery principally because of his view that as to most of the documents the Commission was not bound to make further discovery.
As mentioned earlier the appeals were heard consecutively, the TNT appeal being heard first. The only order which the appellants in that matter sought, apart from the allowance of the appeal, was that the date for hearing be vacated. The appellant did not alternatively seek the fixing of a later hearing date nor any orders in relation to discovery or inspection of documents. Nor did they seek that the proceedings against them be dismissed.
Counsel for the Commission, shortly after he commenced his submissions, made an open offer to agree to the postponement of the date for hearing to 15 June next, subject to our approval and that of the trial judge. An adjournment was granted to enable counsel for the appellants to consider the offer. It was accepted but no agreement was reached on the question of costs. The parties' agreement has the approval both of this Court and of the trial judge. It obviated the need for the Court to make any order on the appeal itself, although, in order to deal with costs, the Court does really need to form a view of the relevant merits of the parties to the appeal. In this respect it should be mentioned that the High Court rules include a rule not found in the rules of this Court which more readily enables a question of costs arising in these circumstances to be dealt with. It is Order 71 Rule 39 which provides that when for any reason the further prosecution of a proceeding becomes unnecessary, except for the purpose of determining by whom the costs of the proceeding should be paid, any party may apply to the Court to determine that question and the Court may make such order as is just.
Notwithstanding the usefulness of the rule, it is difficult to deal with an application for costs in circumstances such as this without coming to a conclusion, if only in a summary way, as to what the likely outcome of the appeal would have been had it proceeded. Having given the matter due consideration, I am of opinion that, in the light of the circumstances earlier recounted, the appellants have made out a clear case for an order for costs. In relation to the TNT appeal the only orders which, in my view, are required are that the hearing date previously fixed for 17 May, 1983, be postponed to 15 June next, a decision we announced when the hearing concluded, and that the Commission pay the applicants' costs of the appeal.
It is next appropriate to give my reasons for the decision not to accede to the submission made on behalf of Brambles that the proceedings against that company be dismissed or stayed on grounds associated with the Commission's failure to make proper discovery.
To a degree there is involved in this submission a challenge to his Honour's view that the Commission was not bound by any rule or direction of the Court to make further discovery except of relevant documents in its possession or power at the time affidavits of discovery on its behalf were sworn in the first half of 1981. It was the appellant's submission that his Honour was wrong in his conclusion; in the submission of the Commission his Honour was correct. In order to come to this question it is first necessary to refer to the relevant rules of the High Court. These are Rules 9 and 18 of Order 32. Rule 9 is as follows:
"A party may serve a notice in accordance with the form numbered 30 in the First Schedule upon another party to a proceeding requiring him to make discovery on oath of the documents which are or have been in his possession or power, relating to a matter in question in the proceeding."With Rule 9 should be considered Rules 10, 11 and 12 which provide for the obligations of a party upon whom a notice pursuant to Rule 9 has been served.
Rule 18 provides:
"(1) The Court or a Justice may -
(a) on the application of a party to a proceeding at any time; and
(b) whether or not an affidavit of documents has already been made or ordered,
make an order requiring another party to state by affidavit -
(c) whether a particular document or documents, or a class or classes of documents, specified or indicated in the application is or are, or has or have at any time been, in his possession, custody or power; and
(d) if it or they is or are not then in his possession, custody or power, whether and when he parted with it or them and what has become of it or them.
(2) The application shall be made on an affidavit stating in the belief of the deponent the party against whom the application is made has, or has at some time had, in his possession, custody or power the particular document or documents, or the class or classes of documents, specified or indicated in the application, and that they relate to a matter in question in the proceeding."As earlier mentioned his Honour's conclusion was based upon the words of Rule 9, particularly upon the words, "of the documents which are or have been in his possession or power". Notwithstanding those words it was counsel's submission that there was a continuing obligation imposed on a party who had been served with a notice under Rule 9 to make further discovery each time fresh documents relevant to the issues in the case came into that party's possession or power. The submission went so far as to suggest that this obligation extended to documents privileged from inspection with the result that a fresh affidavit would need to be sworn as documents such as briefs to counsel, solicitor and client correspondence and other documents prepared for or by a solicitor solely for the purposes of the case came into existence. The burden which would be imposed upon solicitors preparing a complex case for trial, if this were the requirement, is not difficult to imagine.
A number of texts and authorities were referred to. The researches of counsel of texts and authorities here and in England did not reveal that any judge from either country was ever reported to have turned his mind to the question. However, since we reserved our decision, our attention has been drawn (not by counsel) to the decision of a Divisional Court in England in James v. Plummer (1888) 23 L.J. (N.C.) 107. The case is referred to in Bray's Digest of the Law of Discovery (1904) at p. 56. The judgment was delivered by Manisty J. The other member of the Court was Stephen J.
James v. Plummer was an action commenced in 1885. In August 1886 the plaintiff made an affidavit of documents. In January 1888, on its being discovered upon inspection that certain documents referred to in letters had not been set out in the schedule, an order was obtained for a further and better affidavit. The affidavit set out the required documents but limited the discovery to the date of the original affidavit filed in August 1886. The question was whether or not the plaintiff was bound to set out and disclose all the documents which might have come into his possession between August 1886 and March 1888, no discovery of these having been given in the later affidavit. Manisty J. said (p.108):
"Here is a general affidavit, good on the face of it, but on inspection something appears to have been left out. Then the order of January, 1888, is obtained, which being complied with cures the defect; but it is urged by the defendant that to comply properly with that order plaintiff must search for, find, and give discovery of documents up to date. To hold this to be so would be, in my opinion, to cast a burden of intolerable weight upon litigants, and add enormously to cost of litigation."To a substantial degree each case must depend upon the rules of court which it is relevant to consider. But the case lends support to the view that the appellant's submission now under consideration is not soundly based.
No other relevant authorities except some Canadian decisions, later to be mentioned, have been found. Halsbury 4th ed. vol. 13. para. 46 says, "If after the list of documents has been served a document is discovered of which the opposite party has a right to have discovery, it is the duty of the party serving the list to give information to his opponent of the fact, either by supplementary list or by notice". Two authorities are cited for that proposition, namely Mitchell v. Darley Main Colliery Co. (1884) 1 Cab & El 215 and Myers v. Elman (1940) A.C. 282. These cases are authority for the proposition that a person who has made discovery pursuant to an obligation so to do is obliged to make further discovery of documents in his possession or power of which he becomes aware after the original discovery is made. But the cases are concerned, not with documents coming into his possession or power after discovery has been made, but with documents which were always in his possession or power and which were omitted from the original discovery through accident, oversight or deliberate non-disclosure. The cases do not shed any light on the present problem with the result that the statement in Halsbury ought not to be taken as relevant on the point at issue.
There is nothing said about the problem in Bray on Discovery (1885) nor in the Supreme Court Practice (U.K.) (1982), nor in the practice books in use in relation to the High Court, the Supreme Courts of New South Wales and Victoria, and this Court. The rules of the Supreme Court of Judicature in England and those of the other courts mentioned are not materially different from those of the High Court which here apply.
The most recent of the Canadian decisions earlier referred to is Ontario Bean Producers' Marketing Board v. W. J. Thompson & Sons Limited (1982) 134 D.L.R. (3d) 108. That was a decision of three judges of a Divisional Court of the Ontario High Court of Justice. It was concerned with a Canadian procedure enabling the oral examination of a party in relation to documents in his possession or power. Southey J., who delivered the judgment of the Court, thought that a party into whose hands new documents came should be able to be examined concerning them. In the course of his judgment he said:
"The rules are silent on the point in issue, as they are in the case of production of documents, another form of discovery. Yet it is well-settled that a party who has been served with a notice to produce is under a continuing duty right up to the time of trial to disclose to the opposite party documents coming into his possession or power, even where he acquires possession or power after filing an affidavit of production. I can see no reason why the rule as to after-acquired information in oral discovery should be any different". (p.111)Choate on Discovery in Canada (1977) confirms the impression that one would have in any event that the notice to produce referred to in the judgment is the equivalent of the notice for discovery provided for in Order 32 Rule 9 of the High Court Rules - see pp. 171-172. In paragraph 3204, p.212, Choate deals with "newly discovered documents". The author says that although most provinces do not set a procedure for the filing of an additional list where a document comes to light or even comes into being after the original list or affidavit has been prepared, it nevertheless is the duty of the party giving the discovery to give full information to the opposite party either by way of a supplementary affidavit or further list. Two authorities are cited for this proposition. They are the cases cited in Halsbury (supra) namely, Mitchell v. Darley Main Colliery Co. and Myers v. Elman. As previously said, these do not bear on the problem now under consideration.
In the light of the dictum of Southey J. in the Ontario Bean Producers case above cited, it must be accepted that in Ontario at least a party who has been served with a notice to produce is under a continuing duty to discover documents coming into his possession or power after the original discovery has been made. But enquiries made of judges who sit in the Equity Division and the Commercial List of the Supreme Court of New South Wales and of judges of this Court do not reveal that there is any settled practice. The problem does not seem to have been encountered. That is in line with what one would expect in the light of the absence of any mention of the problem in any of the texts referred to or authorities cited therein.
In the light of known practices in a number of the courts of Australia and the absence of treatment of the problem in any English or Australian practice books in general use, one could not say the same of the position here. It may be a matter for regret that this is not as yet the case and it is a matter which judges or masters conducting directions hearings in complex litigation might well bear in mind. But it seems clearly right to say that there is not in Australia at the present time in jurisdictions having rules similar to those of the High Court any such continuing obligation as is referred to by Southey J. In many cases there will be no problem because no relevant documents will come into existence after the original discovery except documents which may clearly be made the subject of a claim for privilege. In others, for example, claims involving continuing breaches of obligations or claims for damages which are ongoing, a party will produce the documents because he will need them for the purposes of his own case. Then there is always the right of the other party to make an application for further and better discovery pursuant to a provision such as Order 32 Rule 18 of the High Court Rules. The Court would not require much persuasion to make an order under the rule if it were shown that there was reasonable ground for suspecting the existence of further documents; see the Supreme Court Practice (supra) Part 1 pp.449-450. Finally, a party may always serve a subpoena upon his opponent to produce documents. There may be questions of abuse in such a case if the procedure is used in lieu of discovery but it seems unlikely that that view would be taken if the subpoena were directed to the production of documents recently coming into the possession of the opposite party.
In the light of all these considerations the clear conclusion is that the learned primary judge was correct in the view he took that the Commission was not bound to make discovery of documents coming into its possession or power after it had made its original discovery in 1981.
That, however, does not conclude the matter. The Commission did in fact make further and better discovery. It cannot, in my opinion, take such a course without admissions. Upon the oath of one of its officers, it says that the documents are material to the issues in the case. If a less formal statement disclosing the existence of the documents had been made, the defendants would plainly have succeeded in an application for further and better discovery made pursuant to Order 32 Rule 18 of the High Court Rules earlier set out. The letter stating that the affidavit was filed without admissions should be ignored. Thus the Commission, although not obliged to do so by any rule, order or direction of the Court, has in fact made further and better discovery. That is how the matter must be approached.
In an appropriate case the Court has power peremptorily to order the dismissal of proceedings or the striking out of a defence if a party is in flagrant or contumelious disregard of his obligations under the rules or orders or directions of the Court; see Allen v. McAlpine (1968) 2 Q.B. 229 and Birkett v. James (1978) A.C. 297 per Lord Diplock at p. 318.
In this case the way in which the Commission went about disclosing the additional documents is open to criticism. Its conduct in that respect is exacerbated by statements by its then senior counsel made during the application for an adjournment on 31 March last. Those statements would reasonably have led the defendants to think that the new documents, if and when produced, would not create any substantial problem for them. The Commission and its advisers ought to have appreciated that the disclosure of such a vast quantity of material so close to the date fixed for hearing would cause serious problems for the defendants in such complex litigation. That they did not appreciate the problem with which their actions would confront the defendants is to be regretted. But the case is clearly not within the class of case referred to in the authorities above mentioned.
In the present case the discovery was made voluntarily and pursuant to no obligation. It was clearly prudent and sensible, as well as just, that disclosure of the documents be made. For reasons which our reference to the absence of authority well justify, the Commission was in genuine doubt as to what course it should take in relation to the documents. Matters went awry because it failed to face up to the problem as soon as it should have done and disclosed the documents so close to the date fixed for hearing. But its disclosure of the documents, belated though it was, will enable the defendants to have the benefit of the examination of the documents in advance of the hearing and thus in advance of any use of the documents which the Commission may itself seek to make of them. Probably also there have been disclosed to the defendants many documents of which they would otherwise never have become aware. In all those circumstances it seems impossible to say that the Commission's actions have been of the flagrant kind which would need to be the case before Brambles would be entitled to the relief it here claims.
It was for the above reasons that I thought, at the conclusion of the argument on its appeal, that it was not entitled to an order that the proceedings against it be dismissed.
For similar reasons it is, in my opinion, quite inappropriate to order, as the primary judge was asked to do, that the Commission pay either the whole of Brambles' costs up to date or those costs thrown away by reason of the disclosure of the new documents, whether on a solicitor and client basis or otherwise. The additional costs incurred as a result of the production of the documents is a matter which should remain in the discretion of the primary judge. It seems unlikely that it will be appropriate for him to turn his mind to that matter until the proceedings are at an end.
It remains to consider claims made for the filing of an affidavit of further and better discovery and for inspection of at least some of the documents in the lettered volumes A to E in respect of which the Commission claims privilege from inspection. I have already said that the Commission was not entitled to file a further and better affidavit of discovery without admissions. There is therefore no purpose in there being filed any additional affidavit. Explicit claims for privilege from inspection of the documents are made in Miss Hannon's affidavit of 31 March, 1983. Those claims and the description of the documents said to be contained in volumes A and B leave no room for doubt that the documents in those volumes are privileged from inspection. The documents in volume C are said by Miss Hannon to be privileged from inspection because, "they are communications between the legal representatives of the parties, or notes of discussions between the parties or their legal representatives which communications and discussions were without prejudice". The descriptions of the documents tend to bear out what Miss Hannon has said. For example, the fourth document is said to comprise certain handwritten notes of Mr. R. M. Bannerman "re 'without prejudice' discussions between or on behalf of the Plaintiff and certain of the Defendants". It has been long established that documents which concern without prejudice discussions or negotiations for the settlement of litigation are privileged from inspection in the interests of public policy; Whiffen v. Hartwright (1848) 11 Beav. 111, 50 E.R. 759, and Rabin v. Mendoza & Co. (1954) 1 A.E.R. 247.
It was submitted in argument that the decisions of the High Court in Grant v. Downs (1976) 135 C.L.R. 674 and National Employers' Mutual General Insurance Association Limited v. Waind (1979) 141 C.L.R. 648 had altered the law and that henceforth the only privilege which a party to litigation could claim was a privilege from inspection of documents which were established to have come into existence solely for the purpose of submission to solicitors for advice or for use in litigation, either anticipated or in fact on foot. This submission should be rejected. There is not to be found in the two cases any intention to affect the quite separate head of privilege which is here in question. In this respect I am in agreement with the decision of Lockhart J. in Trade Practices Commission v. Sterling (1979) 36 F.L.R. 244 in which his Honour rejected a similar argument, although not in respect of a claim for privilege made in relation to without prejudice documents. His Honour said (p. 248) that Grant's case (supra) had nothing to say as to other well-established categories of legal professional privilege.
For the above reasons the documents in volume C are therefore privileged from inspection by the defendants.
The documents in volumes D and E were said by Miss Hannon either to have been brought into existence by members of the Commission's staff for the sole purpose of submission to the legal advisers of the Commission for advice or for use by them in the proceedings, or were said to have been brought into existence at the request of the Commission's legal advisers solely to enable the Commission's legal advisers to advise the Commission or to conduct the proceedings on its behalf. Those claims clearly fall within the class of document said by the High Court to be privileged from inspection. Reference should particularly be made to Waind's case (supra) at p. 654 per Mason J. Accordingly the Commission is entitled to maintain its claims for privilege from inspection of the documents in volumes D and E.
In the result I would make no order in the TNT appeal except that the date for the hearing of the proceedings be postponed to 15 June next and that the costs of the appellants in that appeal be paid by the Commission. The appellant in the Brambles appeal is entitled to succeed insofar as its appeal involved the vacation of the date originally fixed for hearing. It has failed on all other matters argued by it. Argument on its appeal extended over a period of two days. The orders to be made in the Brambles appeal should be that the appeal be allowed, the hearing date be postponed to 15 June, 1983, and that the appellant pay two-thirds of the Commission's costs of the appeal.
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