The Trade Practices Commission v Ampol Petroleum (Victoria) P/L
[1994] FCA 143
•25 Mar 1994
143 99
JUDGMENT No. ........ ........ .. I ,........ ..
IN THE PEDERAL COURT OF AUSTRALIA ) VICTORIA DISTRICT REGISTRY ) GENERAL DIVISION
) No. VG 368 of 1993 B E T W E E N :
THE TRADE PRACTICES COMMISSION
Applicant
- and -
AMPOL PETROLEUM (VICTORIA) PTY LIMITED,
WERNER SPREEN. KENNETH MCKAY. WILLIAM MITHEN and
ROBERT MacARTHUR
Respondents
Olney J
Melbourne
25 March 19942 8 MAR 1994
FEDERAL COURT OF
AUSTRALIA
MINUTE OF ORDERS
PRINCIPAL REGISTRY
THE COURT ORDERS THAT:
1. Paragraphs 1 and 2 of the respondents' notice of motion filed on 17 December 1993 be dismissed.
3.
The applicant have leave within 7 days to file and serve affidavit evidence in support of the claim for legal professional privilege made in its Second Further Supplementary List of Documents dated 14 February 1994, the directions set out in the reasons for decision such affidavit to be filed and served in accordance with
The question of costs be reserved with liberty to apply.
published thls day.
AND DIRECTS THAT:
The matter be otherwise adjourned for mention on 7 April 1994 at 9.30am.
NOTE ' -- Settlement and entry of orders is dealt with in Order
36 of the Federal Court Rules.
IN THE FEDERAL COURT OF AUSTRALIA ) VICTORIA DISTRICT REGISTRY ) GENERAL DIVISION
) No. VG 368 of 1993 B E T W E E N :
THE TRADE PRACTICES COMMISSION
Applicant
- and -
AMPOL PETROLEUM (VICTORIA) PTY LIMITED,
WERNER SPREEN. KENNETH McKAY. WILLIAM MITHEN and
ROBERT MacARTHUR
Respondents
Coram: Olney J
Place : Melbourne Date: 25 March 1994
REASONS FOR DECISION
The respondents in this proceeding seek orders forthe production for inspection of certain documents in respect of which the applicant claims legal professional privilege.
The substantive proceeding, which was instituted on 2 7 August 1993, is an application under ss 77 and 80 of the T r a d e P r a c t i c e s A c t seeking pecuniarypenalties and injunctive relief in relation to conduct which is said to constitute the practice of resale
price maintenance contrary to S 48 of the T r a d e P r a c t i c e s A c t .The following facts are admitted on the pleadings. The first- named respondent (Ampol) is a trading corporation which carries on business as a supplier of petroleum products. At material times Ampol employed the second-named respondent (Spreen) as a business manager, and the third-named respondent (McKay) and the fourth-named respondent (Mithen) were employed as area managers. The fifth-named respondent was at material times employed as Retail Sales Manager Victoria/Tasmania.
The conduct complained of is said to have occurred as follows:
a)
Between 26 February 1993 and 1 March 1993 in relation to the supply of petroleum products to Frank M010ney's Auto Centre at Altona;
b)
Between 26 February 1993 and 1 March 1993 in relation to the supply of petroleum products to the proprietors of a business at Williamstown Road Yarraville.
c) Between July 1992 and May 1993 and on or about 4 August
1993 in relation to the supply of petroleum products to the
proprietor of a business at Dorset Road Bayswater.
The statement of claim pleads conduct engaged in by Ampol and by each of the other respondents in their capacities as servants and agents of Ampol.
The applicant (TPC) has filed four lists of documents.
In its original list of documents dated 12 November 1993 (filed
15 November 1993) the applicant claimed that documents referred
to in Part 2 of Schedule 1 to the list are privileged from
production on the ground that:
a) they are covered by legal professronal privrlege in that they comprrse: (I) documents brought Into exlstence at a tune when lrtrgatron was anticipated or commenced and that such documents were brought into exrstence by or at the request of the Applicant or rts legal representatives for the sole purpose of obtarnlng, provldlng or recording erther evidence or rnformatron relating to these proceed~ngs; or
( 1 ) documents recording confidentral communications between the Applicant and rts legal representatives and other documents brought rnto exlstence for the sole purpose of obtainrng, provrdrng or recordrng legal advrce.
b)
they are documents of a conf~dentral nature record~ng information or relatrng to the exerase of the rnvestrgatlve powers of the Trade Practrces Commrssron under the Trade Practices Act 1974 and are thus the sublect of publrc rnterest immunity.
The documents in Part 2 of Schedule 1 are described as:
Brrefs, notes memoranda, notices, rnstructions, reports, advrces,
minutes, correspondence, transcrrpt of evldence grven pursuant to
sectron 155 of the Trade Practices Act 1974 and other documents brought Into exrstence rn anticipatron of and or durrng the currency of t h ~ s proceeding and for the sole purpose of the conduct of this proceedrng.
In a supplementary list of documents dated 25 November 1993
(filed 26 November 1993) the applicant made a claim similar to that made in paragraph (a) above in respect of the following documents:
(i) Bundle of documents labelled "A", comprrslng of Brrefs to Counsel.
(ii) Bundle of documents labelled "B" , comprising Notes of attendances on wrtnesses and potentral wrtness and audio tape of conversation and transcrrpt thereof, includlng statements, affidavrts, draft statements and draft aff idavrts.
(iri) Bundle of documents labelled "C" , comprising Notes of
attendance on Counsel and Sollcrtors.
(rv) Bundle of documents labelled "D", comprrsrng Memoranda from Counsel, rncluding draft pleadrngs.
(rv) Bundle of documents labelled "E", comprising Notices pursuant to section 155 and rnternal memoranda relatrng to the issue of 155 notrces.
(vi) Bundle of documents labelled "F", comprising Transcrrpts of evidence in prrnted form and on computer dlsks given pursuant to sectron 155 of the Trade Practlces Act 1974 and notes thereon together wrth documents provided pursuant to sectron 155.
(vrr) Bundle of documents labelled "G" , comprising internal reports, mrnutes and communrcatrons wrth~n the Commlssron relatrng to the gathering of evldence for the proceedings and counsel's advice thereon.
(viii) Bundle of documents labelled "H" , comprlsrng Correspondence between the Trade Practrces Commrssron and
~ t s legal advrsers.
Following an order made by consent on 3 December 1993 whereby the applicant was requlred to provide further and better descriptions
and dates of the documents in sub-paragraphs 2, 5, 6 and 7 of Part 2, Schedule 1 of the supplementary list of documents filed
on 26 November 1993, the applicant filed a document dated 10
December 1993 giving the following particulars:
(ii) Bundle of documents labelled "B", comprisang Notes of attendances on witnesses and potential witnesses and audio tape of conversation and transcript thereof, including statements, affidavits, draft statements and draft affidavits.
1. 6 draft statements from wrtnesses and potential wrtnesses dated from 17 May 1993 to 2 June 1993.
2. 4 draft Affidavrts from wrtnesses and potentral witnesses
dated from 6 July 1993 to 2 September 1993.
3. 8 Affidavits from witnesses and potential witnesses dated
from 30 August 1993 to 30 September 1993.
4. 98 file notes prepared by offrcers of the Trade Practlces Commission of attendances on witnesses and potential witnesses dated from 1 March 1993 to 30 September 1993.
5. 1 hand wrrtten note of evidence prepared by potential wrtness at the request of the Applrcant dated 31 July 1993.
(v) Bundle of documents labelled "E" , comprising Notices pursuant to section 1 5 5 and internal memoranda relating to
the issue of 155 notices.1. 7 draft section 155 notrces dated March 1993.
2. 8 Sectlon 155 notrces and covering letters to addressees
stated rn the not~ces dated from 29 March 1993 to 15 July
1993.3. 3 Internal memoranda dated 11 March 1993, 15 July 1993 and 15 July 1993 (including copies of orlgrnal memoranda thereof) relating to the lssulng of sectaon 155 and lncorporatmg references to and summarres of evidence to be called from wltnesses or potential wltnesses.
(vi) Bundle of documents labelled "F", comprising Transcrlpts of evidence in printed form and on computer disks glven pursuant to section 155 of the Trade Practices Act 1974 and notes thereon.
1. Transcrlpts of evldence grven pursuant to SectL0n 155 of
the Trade Practices Act in hearings from 5 ~ p r i l 1993 to 13 Aprll 1993.
2.
5 Computer drsks containing the transcr~pts referred to in paragraph 1 above.
3. Flle notes prepared by the Applicant's sol~crtor summarrsing and referring to evidence grven at the sard sectlon 155 hearangs.
fvii) Bundle of documents labelled "G" . com~risins internal - -
reports, mrnutes and communacations withln the Commission relatins to the satherins of evidence for the vroceedinss - - and counsel's ad;lce the;eon. 1. 4 rnternal mrnutes (includmg drafts) dated 15, 19, 25 May
1993 and 2 August 1993, summarrsrng Counsel's advice and evrdence for use m the lrtrgataon, together wrth the attachments thereto, berng witness statements referred to rn paragraph (11) 1 above and draft pleadrngs referred to Ln paragraph (rv).
2. 3 ~emoranda/~mail messages, one dated 6 Aprrl 1993 m c l u d m g a summary of a reference to evidence of wltnesses or potential wltnesses and two Memoranda/Emarl messages dated 22 September 1993 summarasing Counsel's advice.
3. 4 charts and graphs prepared by Trade Practices Commassion
staff for the purpose of bemg submitted to its legal advisers, all of such documents havlng been brought into
exrstence subsequent to 8 Aprrl 1993.
A further supplementary list of documents was filed on 10
December 1993 but it contains no claim of privilege and nothing more need be said of it.
The applicant's fourth list was filed on 14 February 1993 and reference will be made to it below.
The notice of motion presently before the Court was filed on 17
December 1993. The respondents seek orders:
1. That the Applrcant produce for lnspectron the documents referred to in Part 2 of Schedule 1 of lts Supplementary List of Documents dated 25 November 1993 (and in lts Further and Better Description of Applicant's Prrvilege Documents dated 10 December 1993) on the ground that they are not privileged as alleged.
2. Alternat~vely, that the Applicant provrde a further and better descrrptlon of the documents referred to in its Further and Better Descrrptron of Applicant's Prrvilege Documents dated 10 December 1993 by specifyrng the precrse basls of the clalm for prrvllege m each case.
3. Such further or other orders as to costs or otherwlse as to the Court shall seem appropriate.
The notice of motion was heard on 8 February 1994. At the hearing the applicant filed by leave an affidavit of one Nada Karadzic sworn 8 February 1994, the full text of which is set out
below : I, NADA KARADZIC, Public Servant, MAKE OATH AND SAY as f0llOws:
1. I am an Assistant Drrector ln the permanent employ of the
Trade Practices Commrssion and have had responslbllrty for t h ~ s matter rn the Melbourne off~ce of the Trade Practices
Commrssron. I am famrliar wlth the documents held by the Trade Practices Commission in respect of this matter.
I have instructed the Australran Government Solrcrtor to
assemble the documents m respect of whrch legal
professronal privilege is clalmed into four folders.
These folders are numbered 2 to 5 consecutively. Folder 1 1s a folder which contamed pleadings for Counsel's brief in thrs matter and its contents do not form part of the documents rn respect of whlch privilege is claimed. Each folder is drvlded into a number of sectrons headed by Tabs.
Folder 2 - Tab A
2. This tab contarns two sets of instruct~ons to Counsel whlch were brought into existence solely for the purpose of submissron to the Counsel for use Ln this litigatron.
Folder 2 - Tab B
3. T h ~ s sectron contains documents of several classes. In the first lace there are draft statements of Dotentral witnesses in this litigation. The second class of documents are draft affrdavits. The draft affrdavits and draft statements were brought into existence with the sole purpose of submission to legal advlsers for advice. The section also contains a letter from the Australian Government Solicitor to the Trade Practices Commission enclosing draft pleadings. The letter 1s a confrdentral communicatron between the Applrcant's legal advrsers and rtself and the draft Applicatron and Statement of Claim are draft pleadrngs in thrs proceedrng. The sectron also
contarns affrdavrts. These affrdavrts were prepared for the sole purpose of use in thrs lrtrgatron. There rs also a file note which reproduces communicatron wrth a potential witness. Further, there are notes in regard to other evidence berng gathered by the Commrssron for the sole purpose of use in thrs lrtrgation.
Folder 3 - Tab B
4. Thrs tab contains file notes of conversations wrth potentral witnesses made for the purpose of thrs lrtlgatlon.
Folder 3 - Tab C
5. This tab contains frle notes of conferences with Counsel reproducing the advrce grvenby Counsel rn such conferences entirely related to thrs litigation. It also contains a note of a telephone conversation between the Trade Practrces Commission and a solicitor of the Australian Government Solrcrtor. This file note relates to advice grven rn relatron to this lrtrgatlon.
Folder 3- Tab D
6. This sectron contains a f ~ l e note of the conference with Counsel, two memoranda from Counsel, all of which relate to this lrtrgation and solely to thrs lrtlgation and a draft Statement of Clam rn this lrtrgatron.
Folder 4 - Tab E
7. Thrs sectron contains the followrng classes of documents:
Notrces sent out to potential wrtnesses in thrs lrtrgatron
requiring their attendance at section 155 hearrngs
conducted by the Commrssion. The sole purpose of these documents was to require the attendance of witnesses for the purpose of gathering evrdence forthrs litigatron. The second class of documents are minutes which comprise summarres of the evrdence of witnesses or potentral
wrtnesses in this litigation together wrth some draft
affrdavits. The minutes rn question almost entirely
comprise summarres of advice from Counsel or evidence to be given by wrtnesses. There are brref sections in such minutes whrch are in general of a formal nature, such as draft agenda for Trade Practice Commission meetings and I
am rnstructed that the Commrssron does not seek to marntain privrlege in respect of those documents when the prrvrleged sections, that rs the sectrons whrch summarise evrdence or advice from Counsel are excised. Appended to some of the documents are draft pleadings in thrs action.
Folder 4 - Tab F
8. Thrs tab contains the transcrrpt of evidence grven by witnesses called by the Trade Practices Commission pursuant to its powers under section 155 of the Trade Practices Act
1974. These transcripts came rnto exrstence solely for the purpose of recording evldence to be submitted to Counsel for advice and possrble use in this lrtigation.
Folder 5 - Tab F (cont)
9. This contains further transcripts as referred to in paragraph 8 above.
Folder 5 - Tab G
10. Thrs tab contalns a number of internal mlnutes and as ln the case of the minutes referred to in paragraph 8 above these minutes summarrse advice of Counsel and evldence from
witnesses. The advice from Counsel and the evldence of
wrtnesses relate solely to this proceedrng. Insofar as there are severable portlons of these minutes I repeat the statements in paragraph 7 above as to the preparedness of the Commission to provide those severed portions. As well as these mrnutes there rs a document contained whrchsummarises certaln evidence whlch was gathered by the
Commrssron for use m thls lltrgatlon.
Folder 5 - Tab H
11. This sectlon contalns correspondence between the Australran Government Solicitor and the Trade Practices Commission, draft documents drawn by Counsel, mcludrng draft pleadrngs ln this proceeding, draft correspondence.
12. I am informed by Cralg Henderson, the State Dlrector of the Trade Practices Commission and bellevethat the declsronto
institute proceedings by the Trade Practices Commission rn
this matter was taken on 3 March 1993. Now shown to me and marked wlth the letters "NK1" 1s a true copy of a mlnute by the said resolution.
Exhibi t NK1 to t h e affidavit is as follows:
TPC MINUTE
Date 3.3.93 TPC Meetlng No 9318 Matter Ampol Petroleum (Vic) P/L
alleged rpm'S' Paper Commassioners Present Fels, Asher, Cousins staff Present Spler, Smith & Henderson
(by 'phone)Branch or Office Melbourne
Action Of flcer
The Commission accepted the staff ~olm/~enkrns recommendataon rn respect of Ampol. Subject to advice as to suffrcient of
evidence, proceedings should be
rnstituted for interim orders restraining
the conduct by Ampol and for penalty
against Ampol and any relevant
individuals.AGS Melbourne should be instructed in this matter.
Following the conclusion of proceedings on 8 February 1994, counsel for the respondents sought leave to make further submissions in writing. Leave was granted and subsequently an
extensive submission was filed. The applicant later filed a submission in reply.
In the meantime, on 14 February 1994, the applicant filed a further list of documents which discloses in Schedule 1 Part 1 further documents as follows:
SCHEDULE 1
PART 1
Non privileged extracts of two internal memoranda of the Applrcant dated 11 March 1993, one being a draft and the other a final verslon thereof.
Two lnternal memoranda of the Applicant dated 15 July 1993, one being a draft and the other a frnal versron thereof.
Non prrvrleged extracts of two rnternal memoranda of the Applicant dated 15 July 1993, one being a draft and the other a final versron thereof.
Non prrvrleged extracts of an internal memorandum of the
Applicant and a facsimile page, both dated 18 May 1993.
Non prrvrleged extracts of an internal memorandum of the
Applicant dated 19 May 1993.
Non privileged extracts of an internal memorandum of the
Applrcant and a facsrmile page, both dated 25 May 1993. Non privrleged extracts of an internal memorandum of the
Applrcant dated 2 August 1993.Non privileged extracts of two rnternal memoranda/Email messages of the Applicant both dated 22 September 1993.
Non prrvrleged extracts of an internal memoranda/~mail message of the Applrcant dated 6 April 1993.
10. Monthly Summary Reports prepared by Informed Sources for the perrod July 1992 to August 1993.
11. Informed Sources Dally Information Sheets for the period July 1992 to August 1993.
Legal professional privilege is claimed for the "privileged parts of documents described in paragraphs 1, 3, 4, 5, 6, 7, 8 and 9 of Schedule 1 Part 1".
The 14 February 1994 list of documents was filed before the respondents' written submission was prepared. The submission deals with the claim for privilege, made in Schedule 1 Part 2 of the list although this was not a matter addressed during the hearing of the notice of motlon.
As a number of discrete issues have been raised by the respondents in support of the motion and in relation to the 14 February list, it will be convenient to deal with them under their separate headings.
1. THE DATE WHEN THE DECISION TO INSTITUTE PROCEEDINGS WAS
MADE.
It is central to a claim to legal professional privilege based upon the ground that documents were brought into existence at a time when litigation was anticipated that the date when that
anticipation first arose be established.
As the proceedings were commenced 27 August 1993 the institution of the proceedings must have been anticipated before that date. The applicant relies upon the decision of the applicant made on 3 March 1993 to support its contention that from and after that date the institution of the proceedings was contemplated.
The respondents rely upon a chronology of events, which they have compiled from documents discovered by the applicant, to conkradict the applicant's suggestion that proceedings were contemplated as from 3 March 1993.
The decision made by the applicant on 3 March 1993 was based upon information received in a report from two officers which deals with thelr investigations concerning various matters which have been pleaded in the statement of claim in these proceedings and which are sald to constitute conduct in breach of S 48 of the
T r a d e P r a c t i c e s A c t . In the report the officers identified the
options available to the applicant as:
1. No further action.
Institute proceedings seeking interim orders and penalty, in relation to both Mr Spreen personally and Ampol for contravening S 48 of the Act.
Launch a more in depth investigation including the use of
possibility of prlce fixing/collusive conduct. S 155 orders to obtain additional evidence of RPM and
The officersf recommendation was that proceedings be instituted immediately seeking interim orders and, subsequently penalty in relation to a contravention of S 4 8 . The actual decision made by the applicant (as evidenced by exhibit NM1) was a modification of the second option in that the decision to institute proceedings was made conditional upon the receipt of advice that there was suffic~ent evidence. Given the nature of the
proceedings and the fact that at the same tune a decision was
made to instruct the Australian Government Solicitor in the matter, the only construction that can be placed on the words "Subject to advice as to sufficiency of evidence" is that the applicant intended to obtain legal advice before instituting any proceedings.
Subsequent to .3 March 1993, a decision was made by the Deputy Chairman of the applicant to issue notices under s 155(l)(c) of the Trade Practices Act to the various complainants and their employees and also to Spreen. Such a notice was in fact issued on 29 March 1993 addressed to Spreen. Other notices were also issued.
The agenda for the meeting of TPC Cornmissloners on 11 August 1993 contains an item:
Amp01 Petroleum (Vic) Pty Ltd
s 93/201 institute proceedings?
The respondents say that the question mark indicates that at the time the agenda was compiled no decision had been made to institute proceedings. It is conceded however that as from 11
August 1993 it may be possible to say that litigation was reasonably probable, but that this was not the case earlier.
The respondents rely upon the fact of the issuing of s 155 notices in support of their contention that a decision to institute proceedings was not made on 3 March 1993.
Sectlon 155 of the Trade Practices Act provides that where the TPC, lts Chairman or its Deputy Chairman has reason to believe that a person is capable of furnishing information, producing documents or giving evidence in relation to a matter that constitutes or may constitute, a contravention of the Act, a member of the Commission may by written notice served on that person, require the person, mter alia, to appear before the Commission at a time and place specified to give any such evidence, either orally or in writing and produce any such documents (S 155(l)(c)).
On 29 March 1993 the Deputy Chairman of the TPC signed a notice pursuant to S 155(l) (c) requlrlng Spreen to appear before the
Commission at a time and place specified to glve oral evidence
relating to a range of matters specified in the notice and to produce certain specifled documents. The matters specified in the notice which were said to constitute or may constitute contraventions of the Act relate to the period 26 February 1993 and 1 March 1993 and refer to the alleged conduct of Ampol
Ampol, all of which conduct, if substantiated would, or may, through its employee Spreen and also to the alleged conduct of constitute breaches of ss 45 and 48 of the Act. The allegations
are not particularised as to time, place or specific events.The respondents say that the applicant would have been in breach of its statutory duty, or alternatively in contempt of court, in exercising its powers pursuant to S 155 if the decision made on
3 March 1993 in fact meant that proceedings were then contemplated in respect of the same subject matter. The argument advanced is that because (as the respondents say) the issuing of s 155 notices after a decision to proceed has been made would be improper, the Court should not lightly conclude that the applicant had acted in an improper manner but rather should infer that no decision to institute proceedings had been made prior to the issuing of the notices.
The respondents rely upon the decision in Brambles Holdinas Ltd v Trade Practices Commission 44 FLR 182 as the basis of their submission. Brambles case dealt with a situation in which a S 155 notice was served upon a respondent to pending proceedings in which the Commission was applicant, which notice related to issues relevant to the pending proceedings. Franki J held that the service of the notice was beyond the power vested by s 155 and constituted a contempt of court. Although the facts in thls case are different in that here the s 155 notice was served before the proceedings were commenced, counsel submits that there is no distinction in terms of impermissibility between the two
cases. Other cases cited by the respondents namely TPC v Pioneer Concrete (Vie) Pty Ltd 152 CLR 460; and Kotan Holdinas Ptv Ltd v Bia Rock Pty Ltd (1991) ATPR 41-134, do not support the submission advanced, and indeed the latter is authority for the
contrary view.In my opinion there is no basis for the Court to draw any inference from the fact that S 155 notlces were lssued after 3 March 1993.
The applicant asserts that two decisions were made by the applicant. First, on 3 March 1993, it was decided to institute proceedings providedthat the applicant's advisers considered the evidence sufficient, and second (presumably on 11 August 1993) it was decided that sufficient evidence had been accumulated and that the applicant was in a position to commence proceedings.
It is said that for the purposes of establishing a claim of legal professional privilege the first decision was sufficient because it indicated that from that point on proceedings were contemplated.
In my view there is merit in the applicant's submission. The report that was placed before the Commissioners on 3 March 1993 clearly identifies the conduct which was thought to be in breach of the Act. It is beyond doubt that the application filed on
27 August 1993 relates to that conduct. The fact that in the
of the available evldence to support the contemplated proceedings continued to gather evidence and sought advice as to the adequacy interval between 3 March 1993 and 27 August 1993 the applicant does not detract from the fact that as from 3 March 1993 the proceedings were contemplated and accordingly it is my opinion that all documents which have been brought into existence from and after 3 March 1993 for the sole purpose of submission to legal advisers for advice or for use in the contemplated proceedings attract legal professional privilege.
2. AFFIDAVIT OF NADA KARADZIC The respondents do not press for inspection of ltsms set out in paragraphs 2, 3, 5, 6, 11 and 12 of MS Karadzic's affidavit. As there does not appear to be a relevant correlation between the various bundles labelled "A" to "H" inclusive in the applicant's list of documents dated 25 November 1993 and the documents identified by reference to folder and tab numbers in MS Karadzic's affidavit reference will be made to the disputed documents by the paragraph number (followed by the folder and tab identification) used in the affidavit. The only documents in respect of which the respondents press their claim for inspection are those referred to in paragraphs 4, 7, 8, 9 and 10 of the affidavit. I propose therefore to deal with each of these groups of documents.
PARA 4 - (FOLDER 3 - TAB B) Notes of conversations with potential witnesses made for the
purpose of this litigation. The respondent says that as the documents are not described as communications between the client and its legal adviser and it not being said that the file notes are communications of that description, the claim for privilege must fail. Further, the documents are not identified as coming into existence at or after litigation was reasonably probable.
In Dinale v Commonwealth Development Bank ( 1 9 8 9 ) 9 1 ALR 239 Pincus J said at p 242:
Material gathered by the sollcltor or client in preparation for litrgat~on 1s prrvrleged as rf it were a confidentral communicatron between sollcrtor and clrent, even ~f lt is not such a communicat~on; the exrstence of the relevant pr~vrlege
does not depend upon there being any relevant communrcatlon in fact between the sollcrtor and cllent or persons actlng on their
behalf . . . In Grant v Downs the principal Iudgment dld not expressly accept the validity of the principle underlyrngthe privilege, in so far as it was thought to be based upon encouragrng people to use lawyers in litigation. It would seem odd, and one might say unlust, lf informatlon collected by an unrepresented party rn a case were drscoverable, whereas corresponding informatlon collected by his represented opponent's solicltor were not drscoverable. But leaving that consideration asrde, the drfficulty about t h ~ s body of doctrine, in so far as rt protects
communications other than between solicitor and cllent, is slmply
that it rs not defensible as preservrng the conf~dentiality of communrcatlons between solicitor and client. For that reason, the relevant rules may, in the end, be held to be more soundly based on a separate and narrower principle, namely that a party rs not m general bound to reveal to the court statements taken from wrtnesses and the lrke for the purpose of lit~gatron.
These comments are directly relevant to the question in issue, and are a sufficient answer to the respondents' claim to inspect the documents. Nor is there any substance in the second point raised in relation to the time when the documents came into existence. If the documents came into existence forthe purpose of the litigation it follows that the litigation must then have been in contemplation.
PARA 7 (FOLDER 4 - TAB E) a) Notices sent out to potential witnesses in this litigation requiring their attendance at S 155 hearings conducted by the Commission.
The applicant says that the sole purpose of these documents was to require the attendance of witnesses for the purpose of gathering evidence for this litigation.
The respondents point to the use of the word "purpose" twice in the description of the documents and contend that the proper construction is that the purpose of the documents was to require the attendance of the witnesses and that therefore they cannot be the subject of legal professional privilege.
With respect, I disagree. In the context of the then contemplated litigation, the notices were served for the purpose
of obtaining evidence. This is the function of S 155. b) Minutes which comprise summaries of the evidence of witnesses or potential witnesses in this litigation and
draft affidavits.
The respondents say that these documents are not privileged
because they are not communications between a client and legal adviser or between a client and a third person. In Trade Practices Commissioner v Sterling (1978) 36 FLR 244, Lockhart J set out at pp 245-6 various classes of documents to which legal professional privilege extends, including:
(d) Notes, memoranda, minutes or other documents made by the client or officers of the cllent or the legal advrser of the client of communications whlch are themselves privileged, or contarnrng a record of those communrcations, or relate to lnformatron sought by the clrent's legal adv~ser to enable hlm to advise the cllent or to conduct litigation on his behalf.
Sterling's case has remained unchallenged for a considerable period and I accept the foregoing as an authoritative statement which is relevant to the respondents' argument in relation to this group of documents. By their description the documents are summaries of privileged material and in my opinion attract the same privilege as the material itself.
PARAS 8 AND 9 (FOLDER 4 - TAB E: FOLDER 5 - TAB F)
Transcript of evidence given by witnesses called pursuant to
S 155.
The applicant says that the transcripts came into existence solely for the purpose of recording evidence to be submitted to counsel for advice and possible use in this litigation.
This categorisation of the purpose for which the transcripts came into evidence is disputed by the respondents who say that the sole purpose was to record evidence to consider it regarding
possible changes.
Consistent with what has been said above I am of the view that the gathering of evidence pursuant to S 155 is not distinguishable from the obtaining of witness statements or the gathering of material by a solicitor or client in preparation for litigation. For this reason I uphold the claim for privilege.
It is common cause that Spreen's solicitors were supplied with a copy of the transcript of Spreen's evidence, and this it is said amounted to a waiver of any privilege that the applicant may otherwise be entitled to or assert in respect of that document. The applicant says however, that in the usual course of conducting examlnatlons pursuant to s 155 the supplying to a witness of a transcript of his evidence is part of, and consistent with, the function of the examination and its falr conduct. which cannot amount to a waiver.
An analogous clrcumstance arose in the facts of Hartoaen Eneray
Ltd (In Lia) v Australian Gas Liaht CO 109 ALR 177 in which the
liquidators of two companies, in the course of conducting
investigations relevant to the liquidatlons were advised to
interview persons with a view to examinations being conducted under s 541 of the Companies Code (NSW). The liquidators engaged senlor counsel who conducted private and confidential interviews with a number of persons including a director of one of the companies. The respondents sought access to a transcript
of the interview. A copy of the transcript had been supplied
to the director through his solicitors for the purpose of making
corrections. In considering the question of whether the
liquidators had waived their legal professional privilege in the
transcript Gummow J said at pp 186-7:
There was no express waiver by the applacants of any legal professronal privalege. Whether a waiver should be rmplied depends upon the prrnciples discussed an Attorney-General (NT) v iYaurice (1986) 161 CLR 475 at 481, 487-8, 493, 497-8; 69 ALR 31. Counsel for the applicants submits that the issue was whether the liquidators had either used the transcrrpt in litigation or in some way otherwise put it into the public domain in a fashron which would make it unfair to allow the maintenance of their claam to privalege. He submrtted that, as a matter of farrness, it could not be said that the liquidators had waived privilege in respect of the transcript by the taklng of steps whereby copies were supplied, through his solrcrtors, to Mr Nicholls for hls
consideratron and the making of correctrons. I accept those
submlss~ons.
Although the facts are different in the present case, I think that the same principle is applicable. The applicant has not used Spreen's transcript in litigation nor has it been used in some other way to put it in the public domain so as to render it unfair to allow the claim to privilege to be maintained.
PARA 10 (FOLDER 5 - TAB G )
Internal minutes which summarise advice to counsel and the evidence of witnesses.
The arguments for and against the claim for privilege are the same as for the documents referred to in (b) under paragraph 7. The claim to privilege is upheld.
THE LIST OF 14 FEBRUARY 1994.
In this list the Commissioner claims privilege in respect of part only of certain documents. The non-privileged parts of the
documents have been produced for inspection.
The respondents say that the claim to privilege as to part only of a document cannot be maintained and that therefore the whole of the documents in question must be produced. They rely upon the decision in Hona Kona Bank v Mur~hp (1993) 2 VR 419 to support this proposition, which is said to be consistent with the decision in Grant v Downs 135 CLR 674. Counsel for the respondents has urged that I should exercise my undoubted right to inspect the relevant documents.
The description of the documents in Schedule 1 to the 14 February 1994 list is inadequate to enable any assessment to be made as to whether or not the documents are susceptible to a claim to legal professional privilege. In particular it is not possible to discern whether the "sole purpose" test enunciated in Grant
v Downs and discussed in Waterford v The Commonwealth 163 CLR 54
is met. The applicant says in paragraph 2 of the list that the documents referred to in Part 2 of Schedule 1 are privileged from inspection on the same grounds as are claimed in earlier lists of documents. But the "documents" referred to in Part 2 are said to be parts only various documents. Further, it would seem that Part 1 of the Schedule incorrectly describes the documents in the applicant's possession as "non-privileged extracts" of documents. Clearly, the applicant has possession of the whole of each of the documents in question even though it may seek to claim privilege in respect of part only of the documents.
documents referred to in the list but before doing so I think it It may well be that it is appropriate that I should inspect the is appropriate that the applicant have the opportunity to file affidavit evidence supporting the claim for legal professional privilege made in the list of 14 February 1994. For this purpose the affidavit should exhibit complete copies of the documents which are numbered 1, 3, 4, 5, 6, 7, 8 and 9 in Part 1 of Schedule 1, on which the parts of the documents for which privilege is claimed should be identified without obliterating the text. The applicant should also depose to whatever other
facts it considers to be relevant to the question of privilege in relation to these documents. Any affidavit filed should be served on the respondents but without copies of the exhibits.
The exhibits filed with the affidavit should be placed in a sealed envelope which should be marked "Confidential exhibits" and otherwise identified as being exhibits to the affidavit.
Upon the handing down of these reasons any further directions necessaryto facilitate the finalisation of the remainingmatters in dispute will be given.
CONCLUSION
For the reasons which I have given above, the applicant is not obliged to produce for inspection by the respondents the documents referred to in Part 2 of Schedule 1 of the applicant's Supplementary List of Documents dated 25 November 1993 nor is it appropriate that the applicants be required to provide a further and better description of the documents referred to in its Further and Better Description of Applicant's Privileged
Documents dated 10 December 1993.
Accordingly, paragraphs 1 and
2 of the respondents' notice of motion filed 17 December 1993
will be dismissed.Pursuant to paragraph 3 of the notice of motion the Court will grant leave to the applicant to file and serve affidavit evidence in support of the claim for legal professional privilege made in its Second Further Supplementary List of Documents dated 14
-
February 1994.
I certify that this and the preceding 23 pages are a true copy of the Reasons for Judgment of the Honourable Mr Justice
Olney \
Heard : 8 February 1994 Place : Melbourne
Decision: 25 March 1994.
Auuearances:
Mr P . OICallaghan QC and Mr D. Curtain QC (instructed by Hall &
Wilcox) appeared for the respondents in support of the motion.
Mr R. Merkel QC and Mr M. Crennan (instructed by Australian
Government Solicitor) appeared for the applicant.
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