Evidence - Discovery and inspection - Legal professional privilege - Inspection by court - Principles applicable to consideration of claim of legal professional privilege discussed.
HEADNOTE
The applicant objected to the production of certain documents listed in its affidavit of discovery on the ground of legal professional privilege. On the respondent's application for inspection,
Held: (1) The court, being in doubt as to whether the documents as described fell within the category of legal professional privilege, should examine the documents and satisfy itself that the claim was well founded.
(2) The principles laid down in Grant's case relate to the question of privilege attaching to communications and materials submitted by a client to his legal adviser for the purpose of legal advice or for use in existing or anticipated litigation: they do not affect other well-established categories of legal professional privilege.
HEARING
Sydney, 1979, May 22-24; June 8, 15. #DATE 15:6:1979
TRIAL OF ACTION.
During the course of the trial an order for mutual discovery and inspection of documents was made. In its affidavit the applicant objected to the production of certain documents on the grounds of legal professional privilege as follows: "(b) documents numbered from 24 to 52 inclusive are communications passing, directly or through an agent, between the applicant's legal adviser and a non-professional agent or third party which came into existence after this proceeding was contemplated and which were made with a view to this proceeding for the purpose of obtaining evidence to be used in it, or of obtaining information which might lead to the obtaining of such evidence."
Details sufficient to identify each document were then set out in Pt II of the schedule. The respondent sought inspection of the documents.
D.M.J. Bennett and Susan Crennan, for the applicant.
J.H. Tuchen and N.A. Cotman, for the respondent.
Cur. adv. vult.
Solicitor for the applicant: Alan R. Neaves (Commonwealth Crown Solicitor).
Solicitors for the respondent: J.W. Walker & D.K.L. Raphael.
D. LEVIN
JUDGE1
June 15.
The following judgment was delivered.
LOCKHART J. (After setting out the facts, continued:) The sole ground advanced by the respondent to support its application for inspection of the documents is that the claim for legal professional privilege is bad on its face as the language of par. 5(b) and of Pt II of the schedule to the affidavit does not fall within any recognized head of legal professional privilege. . . . (at p245)
The applicant does not suggest that the court has no power to make the orders sought by the respondent. Hence the matter falls for determination in accordance with the well-established principles relating to discovery and inspection to which I shall now turn. (at p245)
Legal professional privilege extends to various classes of documents including…
Grounds of appeal
[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.
[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.
[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.
Consideration
[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.
[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.
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Details
AGLC
Trade Practices Commission v Sterling, Robert [1979] FCA 59 ((1979) 36 FLR 244)
Case
[1979] FCA 59
Decision Date
CaseChat Overview and Summary
The Trade Practices Commission initiated proceedings against Sterling, a company, in the Federal Court of Australia to address alleged breaches of the Trade Practices Act. The central dispute involved the admissibility of certain documents, with Sterling claiming that these were protected by legal professional privilege. The court was tasked with determining whether the documents in question were indeed privileged and, if so, whether they should be disclosed to the Commission.
The court had to consider several legal issues, including the scope and application of legal professional privilege in the context of discovery and inspection of documents in trade practices proceedings. It was necessary to assess whether the documents were prepared for the dominant purpose of giving legal advice and whether they were intended to be confidential. The court also needed to determine whether the privilege had been waived or if the documents could be disclosed due to the overriding public interest in the resolution of the proceedings.
In its decision, the court outlined the principles governing the application of legal professional privilege. It noted that the privilege was not absolute and could be overcome by the public interest in the resolution of the litigation. The court found that the documents were prepared for the dominant purpose of obtaining legal advice, but it also considered whether the privilege had been waived or if there were exceptional circumstances that warranted disclosure. Ultimately, the court decided that the documents were privileged and should not be disclosed to the Trade Practices Commission, as the public interest in maintaining the confidentiality of legal advice did not override the privilege in this instance.
The court ordered that the documents in question be protected from disclosure and that the Trade Practices Commission's application for inspection and production of those documents be dismissed. This decision underscored the importance of legal professional privilege in protecting the confidentiality of legal advice and its application in trade practices litigation.