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Federal Court of Australia - Full Court |
Last Updated: 23 March 2009
FEDERAL COURT OF AUSTRALIA
Australian Competition and Consumer Commission v Cadbury Schweppes
Pty Ltd [2009] FCAFC 32
PRIVILEGE – Legal professional
privilege – Litigation privilege – Finalised proofs of evidence
– Whether litigation
privilege exists where documents created for purpose
of providing to opposing party and in fact so provided
PRIVILEGE
– Legal professional privilege – Litigation privilege – Waiver
of privilege – Whether filing and service,
without more, of finalised
proofs of evidence constitutes waiver of privilege
PRIVILEGE
– Legal professional privilege – Litigation privilege –
Distinction between privilege and implied undertaking
PRACTICE AND
PROCEDURE – Whether leave to appeal against interlocutory ruling ought
to be granted – Case raises a matter of public importance
– Possible
loss of substantive right – Leave granted
PRACTICE AND
PROCEDURE – Appeal – Issue not taken below – When allowed
to be raised on appeal – When in interests of justice –
Issue
concerns substantive right – Party repudiating stance adopted at trial
– No prejudice to opposing party –
In interests of justice to allow
Evidence Act
1995 (Cth), s 122
Federal Court Rules (Cth), O 46
r 6
Akins v Abigroup Ltd
(1998) 43 NSWLR 539 cited
AMP Financial Planning Pty Ltd v CGU
Insurance Ltd [2004] FCA 1196 cited
Attorney-General for the Northern
Territory v Maurice [1986] HCA 80; (1986) 161 CLR 475 applied
Australian Competition
and Consumer Commission v Construction, Forestry, Mining and Energy Union
[2008] FCA 678 cited
Australian Competition and Consumer Commission v
Telstra Corporation Ltd [2000] FCA 28; (2000) 96 FCR 317 cited
Australian Medic-Care
Co Ltd v Hamilton Pharmaceutical Pty Limited (No 3) [2008] FCA 976
cited
Austress Freyssinet Pty Ltd v Marlin International Pty Ltd
[2002] NSWSC 958 cited
AWB Ltd v Cole [2006] FCA 571; (2006) 152 FCR 382
cited
Black & Decker Inc v Flymo Ltd [1991] 1 WLR 753
cited
British American Tobacco Australia Services Ltd v Cowell (No 2)
[2003] VSCA 43; (2003) 8 VR 571 cited
Cadbury Schweppes Pty Ltd v Amcor Limited
[2008] FCA 88 cited
Cadbury Schweppes Pty Ltd v Amcor Limited
[2008] FCA 398 cited
Chief Executive Officer of Customs v Neate
(1998) 144 FLR 373 cited
Churche v Australian Prudential Regulation
Authority (No 3) [2006] FCA 1168 cited
Comfort Hotels Ltd v Wembley
Stadium Ltd [1988] 1 WLR 872 cited
Commissioner of Australian Federal
Police v Propend Finance Pty Ltd [1997] HCA 3; (1997) 188 CLR 501 cited
Commissioner
of Patents v Sherman [2008] FCAFC 182 cited
Complete Technology Pty
Ltd v Toshiba (Australia) Pty Ltd [1994] FCA 1314; (1994) 53 FCR 125 considered
Dingle
v Commonwealth Development Bank of Australia (1989) 23 FCR 63
cited
Esso Australia Resources Ltd v Federal Commissioner of Taxation
[1999] HCA 67; (1999) 201 CLR 49 cited
Fairfield-Mabey Ltd v Shell UK Metallurgical
Testing Services (Scotland) Ltd [1989] 1 All ER 576 cited
Farah
Constructions Pty Ltd v Say-Dee Pty Ltd [2007] HCA 22; (2007) 230 CLR 89
cited
Goldberg v Ng [1995] HCA 39; (1995) 185 CLR 83 cited
GSA
Industries (Aust) Pty Ltd v Constable [2002] 2 Qd R 146 cited
Harman v
Secretary of State for the Home Department [1983] 1 AC 280
cited
Hearne v Street [2008] HCA 36; (2008) 235 CLR 125 cited
In the Marriage
of Crowe (1988) 12 Fam LR 696 cited
Leaders Shoes (Aust) Pty Ltd v
National Insurance Co of New Zealand Ltd [1968] 1 NSWR 344
cited
Liberty Funding Pty Ltd v Phoenix Capital Ltd (2005) 218 ALR 283
considered
Li Pei Ye v Crown Ltd [2004] FCAFC 8 cited
Mann v
Carnell [1999] HCA 66; (1999) 201 CLR 1 followed
Mitsubishi Electric Australia
Pty Ltd v Victorian Workcover Authority [2002] VSCA 59; (2002) 4 VR 332
cited
Multicon Engineering Pty Ltd v Federal Airports Corporation
(1997) 47 NSWLR 631 cited
Nagan v Holloway [1996] 1 Qd R 607
cited
National Employers’ Mutual General Insurance Association Ltd v
Waind [1979] HCA 11; (1979) 141 CLR 648 cited
Nilsen Industrial Electronics Pty Ltd v
National Semiconductor Corporation (1994) 48 FCR 337 cited
Osland v
Secretary, Department of Justice [2008] HCA 37; (2008) 234 CLR 275 cited
Optiver
Australia Pty Ltd v Tibra Trading Pty Ltd [2008] FCAFC 133; (2008) 169 FCR 435
cited
Polyaire Pty Ltd v K-Aire Pty Ltd (2003) 226 LSJS 109
cited
Pratt Holdings Pty Ltd v Federal Commissioner of Taxation [2004] FCAFC 122; (2004)
136 FCR 357 cited
Public Transport Authority of Western Australia v
Leighton Contractors Pty Ltd [2007] WASCA 151; (2007) 34 WAR 279 cited
Sevic v Roarty
[1998] NSWSC 462; (1998) 44 NSWLR 287 cited
Southern Equities Corporation Ltd v West
Australian Government Holdings Ltd (1993) 10 WAR 1 cited
Spotless
Group Ltd v Premier Building and Consulting Group Pty Ltd [2006] VSCA 201; (2006) 16
VR 1 cited
State Bank of South Australia v Smoothdale (No 2)
Limited [1995] SASC 5070; (1995) 64 SASR 224 not followed
State of New South Wales v
Jackson (2007) NSWCA 279 cited
Wheeler v Le Marchant (1881) 17 Ch
D 675 cited
A Ligertwood, Australian Evidence (4th ed,
LexisNexis Butterworths, 2004)
AUSTRALIAN COMPETITION AND CONSUMER
COMMISSION v CADBURY SCHWEPPES PTY LTD (ACN 004 551 473), AMCOR LIMITED (ABN 62
000 017 372),
AMCOR PACKAGING (AUSTRALIA) PTY LTD (ABN 55 004 275 165), VISY
BOARD PTY LTD (ACN 005 787 913), VISY INDUSTRIES HOLDINGS PTY LTD
(ACN 005 787
968) and VISY INDUSTRIES AUSTRALIA PTY LTD (ACN 004 337 615)
VID 187
of 2008
MANSFIELD, KENNY AND MIDDLETON JJ
20 MARCH
2009
MELBOURNE
THE COURT ORDERS THAT:
1. Leave be granted to Jarra Creek Central Packing Shed Pty Ltd to intervene limited to the making of written submissions.
2. The application for leave to appeal be granted.
3. The appeal be dismissed.
4. On or before 4:00 pm on 2 April 2009 the parties and the intervener file
and serve proposed draft orders and any submissions as
to costs of the
application for leave to appeal and of the
appeal.
Note: Settlement and entry of orders is dealt with in Order 36 of the Federal
Court Rules.
The text of entered orders can be located using eSearch on the
Court’s website.
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ON APPEAL FROM A SINGLE JUDGE OF THE FEDERAL COURT OF
AUSTRALIA
|
|
BETWEEN:
|
AUSTRALIAN COMPETITION AND CONSUMER
COMMISSION
Applicant |
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AND:
|
CADBURY SCHWEPPES PTY LTD (ACN 004 551 473)
First Respondent AMCOR LIMITED (ABN 62 000 017 372) Second Respondent AMCOR PACKAGING (AUSTRALIA) PTY LTD (ABN 55 004 275 165) Third Respondent VISY BOARD PTY LTD (ACN 005 787 913) Fourth Respondent VISY INDUSTRIES HOLDINGS PTY LTD (ACN 005 787 968) Fifth Respondent VISY INDUSTRIES AUSTRALIA PTY LTD (ACN 004 337 615) Sixth Respondent |
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JUDGES:
|
MANSFIELD, KENNY AND MIDDLETON JJ
|
|
DATE:
|
20 MARCH 2009
|
|
PLACE:
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MELBOURNE
|
REASONS FOR JUDGMENT
INTRODUCTION
1 This is an application for leave to appeal and an appeal from an interlocutory decision of a judge of the Court made on 28 March 2008 in proceedings between Cadbury Schweppes Pty Ltd (‘Cadbury’) and Amcor Ltd and Amcor Packaging (Australia) Pty Ltd (together, Amcor) and Visy Board Pty Ltd, Visy Industries Holdings Pty Ltd and Visy Industries Australia Pty ltd (together, Visy) (‘the Cadbury proceeding’). The application is brought by the Australian Competition and Consumer Commission (‘ACCC’) as an intervening party, contending that the primary judge erred in finding that the ACCC waived any legal professional privilege it had in 111 finalised proofs of evidence when those proofs were served by the ACCC on Visy (the opposing parties) in earlier separate proceedings.
2 The matters argued before the Full Court raise important issues concerning the principles of legal professional privilege and the operation of those principles in relation to a final version of a witness statement or proof of evidence intended at the time of its creation to be filed in court and served upon an opponent to existing litigation and then in fact so filed and served pursuant to an order of the Court.
BACKGROUND
3 On 21 December 2005 the ACCC commenced proceedings alleging price-fixing and unlawful market sharing against Visy and certain current and former officers of Visy (‘the ACCC proceeding’).
4 The Cadbury proceeding was commenced on 15 December 2006 with Cadbury making allegations against Amcor, certain of which were in relation to the same subject matter as that of the ACCC proceeding. Amcor subsequently cross-claimed against Visy.
5 On 8 December 2006, in the ACCC proceeding, Heerey J made a number of orders, including the following:
11. The [ACCC] file and serve any proofs of evidence of lay witnesses on which it proposes to rely by 30 June 2007. ...15. The content of a proof of evidence or witness statement served pursuant to an order of the Court is subject to the same implied undertaking as to confidentiality as applies to a document produced upon discovery. Where the content of, or annexures to, a proof of evidence or witness statement, or parts thereof, are marked as subject to confidentiality in accordance with any confidentiality order made by the Court, such proof of evidence, witness statement or annexure, or part thereof, will be treated in accordance with that confidentiality order.
6 It was anticipated that the trial in the ACCC proceeding would proceed by way of viva voce evidence, with the finalised proofs of evidence giving notice to Visy of the content of such evidence. However, it was envisaged that if no factual issue arose as to the content of any finalised proofs of evidence, the parties could agree to admit such into evidence in place of actually calling the witness to give viva voce evidence.
7 Between 2 July 2007 and 21 September 2007, in a series of 15 tranches, the ACCC filed and served the 111 finalised proofs of evidence on Visy in the ACCC proceeding pursuant to the order of Heerey J. All save two of the 15 communications between the ACCC and Visy, pursuant to which the 111 proofs of evidence were served, invoked an express confidentiality regime in place between the parties to that proceeding, and then only in respect of specified parts of some of the finalised proofs of evidence. For example, in the covering letter dated 2 July 2007 enclosing the finalised proofs of evidence, the ACCC stated:
You should note that a number of the witness proofs contain confidential information and have been shaded and marked appropriately with the words, ‘Confidential A (Shaded parts only)’ or ‘Confidential B (Shaded parts only)’ in accordance with the Confidentiality Orders dated 26 October 2008 and the Orders dated 8 December 2006.8 Save as to any ‘confidentiality’ that may arise from the ‘implied undertaking’ referred to in the orders of Heerey J, no finalised proof of evidence was in its entirety expressly claimed to be confidential.
9 Judgment was pronounced in the ACCC proceeding by Heerey J on 2 November 2007, without a trial having been conducted but after facts had been agreed between the parties. The makers of the 111 finalised proofs of evidence were never called to give evidence, and the 111 finalised proofs of evidence were not introduced into evidence in the ACCC proceeding.
10 On 9 November 2007, in the Cadbury proceeding, Gordon J ordered that Visy file and serve a list of witness statements (including proofs) served on it by the ACCC in the ACCC proceeding, identifying each listed document by ID number allocated in the ACCC proceeding and by the name of the witness, and that Visy be released from the implied undertaking (which existed by reason of the order of Heerey J in the ACCC proceeding and as recognised by Harman v Secretary of State for the Home Department [1983] 1 AC 280 (Harman)). Visy was released from the implied undertaking so as to enable the process of discovery and inspection of the witness statements by Cadbury: Cadbury Schweppes Pty Ltd v Amcor Limited [2008] FCA 398.
11 On 16 and 21 November 2007, Visy filed and served the list pursuant to the order of Gordon J made on 9 November 2007, giving the name of each witness and the document ID number in relation to each of the 111 finalised proofs of evidence, and describing each as ‘Unsigned Proof of Evidence’ of the proposed witness.
12 The ACCC claimed legal professional privilege in the 111 finalised proofs of evidence in the hands of Visy.
13 The primary judge decided that the privilege held by the ACCC in its finalised proofs of evidence was lost when the ACCC filed and served the witness proofs on Visy in the ACCC proceeding in compliance with the order of Heerey J. Justice Gordon, in her Honour’s reasoning, stated that ‘it was agreed between the parties that the only issue to be resolved is whether the ACCC waived privilege when it, at the direction of the Court, filed the documents and served them on Visy’ (Cadbury Schweppes Pty Ltd v Amcor Limited [2008] FCA 88 at [12]). Accordingly, her Honour did not address the question of whether the finalised proofs of evidence in question were privileged upon their creation and immediately prior to their service on Visy, or whether the service of each finalised proof of evidence was itself a separate communication which attracted legal professional privilege. An issue arose before us as to whether agreement was in fact reached between the parties or the concession made by Cadbury, in terms of that recorded by the primary judge. We will return to this matter later.
PRELIMINARY ISSUES
Leave to appeal
14 At the hearing before us, the ACCC sought leave to appeal (and, in the event that leave was granted, appealed) the interlocutory judgment of the primary judge pronounced on 28 March 2008.
15 In our view, the questions raised in the application are of sufficient importance for leave to appeal to be granted, and the appeal heard instanter: cf Commissioner of Patents v Sherman [2008] FCAFC 182 at [13] and Optiver Australia Pty Ltd v Tibra Trading Pty Ltd [2008] FCAFC 133; (2008) 169 FCR 435 at [30]. In addition, the ACCC is exposed to losing legal professional privilege over the finalised proofs of evidence (if any) if the order of Gordon J remains undisturbed, which would involve the loss of a substantive right.
16 All parties were given and availed themselves of the opportunity to put before the Court their submissions in respect of the appeal.
Intervenor
17 Jarra Creek Central Packing Shed Pty Ltd (‘Jarra Creek’) moved the Court for orders that it be permitted to intervene in the hearing for leave to appeal, and in any resultant appeal.
18 Jarra Creek is an applicant in a separate representative action seeking compensation and declaratory and injunctive relief in relation to the alleged conduct of the Amcor parties and Visy parties which was the subject of the ACCC proceeding. We received written submissions from Jarra Creek and, to that extent, grant leave to Jarra Creek to intervene.
Notice of contention
19 By notice of contention filed by Cadbury, it was contended that judgment should be affirmed on a ground further to that relied upon by the primary judge, namely that the communication by the ACCC to Visy of the finalised proofs of evidence, consisting of the covering letter and enclosed finalised proofs of evidence, was not confidential or otherwise of a character capable of attracting legal professional privilege. Before us, Cadbury also sought to argue that the finalised proofs of evidence intended to be filed and served upon Visy were, at the time of their creation and prior to their service, not the subject of legal professional privilege, although such a contention did not appear to be clearly (if at all) contained in the notice of contention.
20 During the hearing of the appeal, the ACCC argued that it was not open for Cadbury to retract a concession made by Cadbury during the hearing before the primary judge. The ACCC referred to Cadbury’s submissions before the primary judge, part of which stated that:
So as not to prolong the argument and because it is not necessary for present purposes to do otherwise, Cadbury accepts that LPP subsisted in each of the 111 [w]itness [s]tatements immediately prior to those witness statements being served on Visy.21 The transcript of the hearing before her Honour indicates that it was understood by her Honour, and potentially by counsel acting for the ACCC, that the only issue for resolution by her Honour was that of waiver. Certainly in her reasons, her Honour proceeded on that basis: see [13] above. However, before us, Cadbury contended that there had been some misunderstanding by the primary judge and the ACCC, but seemed to accept that it had contributed, even if unintentionally, to such a misunderstanding. Cadbury then referred to another part of its submissions before the primary judge which stated that:
The Service Communications [defined in the submissions as the letters and documents under cover of which the ACCC served the 111 witness statements on Visy] were separate and distinct from the antecedent privileged communications between the ACCC’s legal advisers and witnesses. ... The Service Communications were not confidential communications for the reasons given in [Liberty Funding] ...22 Accordingly, Cadbury contended, it had not intended to concede at any stage that the communication of the finalised proofs of evidence to Visy was confidential or otherwise of a character capable of attracting legal professional privilege. Further, as we have indicated, it was contended during the appeal by Cadbury that the finalised proofs of evidence themselves, prior to being sent to Visy, were not protected by legal professional privilege.
23 The evidence relied upon by the ACCC in support of the claim of legal professional privilege set out, in some detail, the circumstances leading up to and including the preparation of the finalised proofs of evidence. The ACCC clearly had the onus of establishing legal professional privilege in the 111 finalised proofs of evidence.
24 In an affidavit of Mr Geoffrey Williams, Regional Director, Sydney Office, of the ACCC sworn on 23 November 2007 and filed by the ACCC for the hearing before Gordon J, Mr Williams deposed, inter alia, that:
56. Following the making of the Heerey J order, in early 2007 I directed ACCC staff working under my supervision to engage in the process of creating lay witness proofs of evidence (proofs of evidence) for filing and service in accordance with the Heerey J order. 57. This process involved:58. The above process was carried out, when necessary, with the assistance of the ACCC’s external counsel and solicitors. 59. From time to time throughout 2007, other potential lay witnesses were identified whose evidence I considered would assist the ACCC’s case in the ACCC Proceeding. When this occurred, I directed one of the ACCC staff working under my supervision to engage in the process of creating a witness proof in respect of each other potential witness. 60. My purpose in directing ACCC staff (and, where necessary, the ACCC’s external counsel and solicitors) to engage in the above process, including the creation of a proof of evidence (being the final stage of the process), was for the ACCC to use each of the proofs of evidence in the ACCC Proceeding. Further, it was my intention that each of the proofs of evidence would be filed and served pursuant to the Heerey J order. I have reviewed Visy’s lists and confirm that each of the proofs of evidence enumerated therein was created as a result of the process described in paragraphs 57-59 above. 61. Once the content of each of the proofs of evidence had been finalised, the proof of evidence in its final form (the finalised proof) was provided to AGS for processing, filing and service.... (Emphasis added.)- identifying persons from whom the ACCC wished to adduce evidence in support of its case;
- conducting ... meetings, interviews and/or telephone conferences with each such person in order to establish the scope and content of the evidence they could give;
...
- based on those ... meetings, interviews and/or telephone conferences, creating a proof of evidence for filing and service in accordance with the Heerey J order.
25 As to the service of the proofs of evidence, Mr Williams further deposed that:
Service of proofs of evidence enumerated in Visy’s lists Following completion of the steps listed at paragraphs 63 above, the finalised proofs were served upon Visy (by its solicitors) by AGS in fifteen tranches between 2 July 2007 and 21 September 2007. The content of each tranche was largely determined by the order in which each proof was finalised and processed. Each tranche was served on Visy by AGS on my instructions. My purpose in instructing AGS to serve each tranche of proofs of evidence was in order to comply with paragraph 11 of the Heerey J order.26 During the hearing, we heard argument by all parties on the contentions sought to be raised by Cadbury on this appeal. We reserved our judgment on whether to grant leave to Cadbury to withdraw its concession and argue the two new matters sought to be raised by Cadbury. The ACCC did not seek on the appeal to tender any further evidence on the new matters. Nor did any party seek further time to address what are essentially legal issues.
27 It seems to us that it is expedient and in the interests of justice to consider all the issues sought to be raised by Cadbury. We are mindful that normally a party should be bound by the course deliberately adopted at the trial: see Multicon Engineering Pty Ltd v Federal Airports Corporation (1997) 47 NSWLR 631, 645 and Li Pei Ye v Crown Ltd [2004] FCAFC 8 at [76] per Sackville, Selway and Lander JJ. However, important issues are sought to be agitated, and, since we consider there is no relevant prejudice to the other parties to the appeal, the Court permits the matters now raised by Cadbury to be agitated. In the circumstances of the case, bearing in mind the nature of the issues under discussion, we consider that Cadbury should be allowed to withdraw its concession, and we grant leave for it to do so. We also consider that Cadbury should be given leave (to the extent necessary) to raise the contentions argued before us even if not encompassed in the notice of contention.
ISSUES ON APPEAL
28 It seems to us there are two main issues to be addressed in this appeal, which are to be answered according to the common law:
1. whether or not the finalised proofs of evidence prepared, filed and served by the ACCC (that is, the finalised proofs prepared for the purpose of ACCC using them in the ACCC proceeding and for filing and service on Visy in accordance with the orders of Heerey J) were subject to legal professional privilege, and more specifically subject to litigation privilege; and
2. whether or not the filing and service of the finalised proofs of evidence constituted a waiver (implied or otherwise) of legal professional privilege in the finalised proofs of evidence, and if so, to what extent?
29 If no legal professional privilege arises in answer to the first issue, it is, strictly speaking, unnecessary to address the second issue, although, for reasons we explain, we do in fact do so below.
30 It is to be noted that no submission was made by any party or the intervener seeking to argue that the portions of the proofs of evidence the subject of the agreed confidentiality regime between the parties to the ACCC proceeding stood in any different position to the rest of the proofs of evidence. Any such ongoing confidentiality was apparently to be addressed, if necessary, at the point of inspection by Cadbury of the proofs of evidence, if (as her Honour found) they were not protected from inspection by the legal professional privilege of the ACCC. Moreover, it is not necessary for us to address any claim that the proofs of evidence could not be inspected by reason of the implied undertaking discussed in Harman [1983] 1 AC 280, as Visy has been released from that undertaking: see [10] above. The argument relating to confidentiality turned upon the operation of the principle from Harman and the nature of proofs of evidence, to which we will return.
31 It is also to be observed that we do not need to concern ourselves with the operation of the Evidence Act 1995 (Cth) (‘the Evidence Act’), as we are dealing with the position at common law. To the extent that the ACCC in written submissions dated 15 January 2009 relied upon recent amendments to s 122 of the Evidence Act (which were to operate from 1 January 2009) and the Explanatory Memorandum thereto, we do not consider reference to such material to be instructive. Putting aside the fact that the Evidence Act is concerned with the adducing of evidence at trial, little assistance can be gained as to the common law position by having recourse to the view of the author of the Explanatory Memorandum. In any event, in this area the common law is not to be developed by reference to the Evidence Act: see Esso Australia Resources Ltd v Federal Commissioner of Taxation [1999] HCA 67; (1999) 201 CLR 49 and Osland v Secretary, Department of Justice [2008] HCA 37; (2008) 234 CLR 275 (Osland) at [49] per Gleeson CJ, Gummow, Heydon and Kiefel JJ.
CONSIDERATION
32 It is convenient to set out some general observations as to certain principles of law relevant to the issues now arising for our determination. In our view, it is by reference to these principles that this appeal should be determined, although conflicting statements may be found in certain authorities as to their scope and application.
33 In this appeal the parties and intervener proceeded on the basis that legal professional privilege extends to protect material created at the instigation of a party or the party’s lawyer for the dominant purpose of conducting anticipated or pending litigation (which has been referred to as litigation privilege). It is the ambit of the litigation privilege that is the contentious issue in this appeal.
34 There has been some controversy over whether litigation privilege is
confined to communications or whether it extends to documents
themselves, the
need for confidentiality in ‘litigation privilege’, and the
independent existence of ‘litigation
privilege’ itself: see eg
State of New South Wales v Jackson (2007) NSWCA 279; Public Transport
Authority of Western Australia v Leighton Contractors Pty Ltd [2007] WASCA 151; (2007) 34 WAR
279 at [20]; and
A Ligertwood, Australian Evidence
(4th ed, LexisNexis Butterworths, 2004) 291-2.
35 As to confidentiality, we would have thought that the scope of the confidentiality arising from litigation privilege is different from advice privilege. We say this because when dealing with third parties, such as potential witnesses, unless there is a separate confidentiality agreement with such third parties, then, subject to the principle in Harman [1983] 1 AC 280 (as explained in Hearne v Street [2008] HCA 36; (2008) 235 CLR 125 (Hearne) at [109] per Hayne, Heydon and Crennan JJ), such potential witnesses would be free to discuss with others their potential evidence. Of course, the position would be different if there was a confidentiality agreement with such a potential witness, because in that case the client might seek to enforce the obligation of confidentiality arising out of such an agreement.
36 However, for the purposes of this appeal, no definition or investigation of the outer boundaries of the ambit of litigation privilege needs to be undertaken.
37 In our view, whatever is the extent of confidentiality arising from litigation privilege, one element of confidentiality is essential, namely non-disclosure to one’s opponent. To say (as does the ACCC) that the finalised proofs of evidence were created and served for the existing litigation can be accepted. However, in our view it is impossible for litigation privilege to attach to the finalised proofs of evidence, when the finalised proofs of evidence were created for the purpose of serving them on the ACCC’s opponent and when they were in fact served on that opponent.
38 The rationale for litigation privilege is different from that of advice privilege, and rests on the basis that, in the adversarial system, the legal representatives and their clients generally control and decide for themselves which evidence they will adduce at trial, without any obligation to make disclosure to the opposing party or parties of the material acquired in preparation of the case.
39 Justice Williams in Nagan v Holloway [1996] 1 Qd R 607 stated (at 609-10):
The older common law authorities establish that a party is not bound to communicate evidence which he has obtained for the purpose of litigation ... . The position was well summed up by Lindley LJ in Re H W Strachan [1895] 1 Ch 439 at 445 where he said:"In England it is considered contrary to the interests of justice to compel a litigant to disclose to his opponent before trial the evidence to be adduced against him... .
It is considered that so to do would give undue advantages for cross-examination and lead to endless side issues; and would enable witnesses to be tampered with, and give unfair advantages to the unscrupulous."
40 In Dingle v Commonwealth Development Bank of Australia (1989) 23 FCR 63 Pincus J referred to the principle that (at 66):
... a party is not in general bound to reveal to the Court statements taken from witnesses and the like for the purposes of litigation; see Baker v Campbell (CLR at 66) per Gibbs CJ and (CLR at 75) per Mason J. That principle was expressed by James LJ in Anderson v Bank of British Columbia (1876) 2 Ch D 644 at 656: "... that as you have no right to see your adversary's brief, you have no right to see that which comes into existence merely as the materials for the brief."41 Consistent with this approach, we observe that no privilege arises if an action is conducted by a litigant in person: see the cases referred to in National Employers’ Mutual General Insurance Association Ltd v Waind [1979] HCA 11; (1979) 141 CLR 648, 654 per Mason J.
42 There have been other comments that indicate that the rationale of litigation privilege is to secure a fair trial within the adversarial process and to facilitate the common law mode of trial: see Southern Equities Corporation Ltd v West Australian Government Holdings Ltd (1993) 10 WAR 1 at 21 per Seaman J; Mitsubishi Electric Australia Pty Ltd v Victorian Workcover Authority [2002] VSCA 59; (2002) 4 VR 332 at 336 per Batt JA; Wheeler v Le Marchant (1881) 17 Ch D 675 at 685 and AWB Ltd v Cole [2006] FCA 571; (2006) 152 FCR 382, 424 at [158] per Young J. All formulations emphasise, in one way or another, that the communications made or materials to be protected are those which are made confidentially between the client and the legal representative or otherwise come into existence for the dominant purpose of the litigation, and which are to be kept away from the opposing party.
43 With the introduction of case management principles, some of the adversarial elements of the common law pre-trial processes have been removed or tempered. However, a party generally still has the option of what evidence to put before the court, and what witnesses to call in support of his or her case. The timing of the disclosure of such evidence may not be in the complete control of a party if the court intervenes in this regard, as occurred by reason of the orders of Heerey J. But generally the extent of the evidence adduced or to be adduced remains within the control of the party who has assembled it.
44 Prior to the introduction of the practice of serving proofs of evidence prior to trial, disclosure of evidence to be adduced did not normally occur until the trial. If so disclosed at trial, no question of litigation privilege arose. At trial, the actual statement made under oath or tendered in written form was not privileged. There would be no issue of ‘waiver’ of that particular evidence so given. Issues of ‘waiver’ may arise as to the other materials or communications made relating to or arising out of the giving of the evidence at the trial, but this appeal raises different considerations. Disclosure of the evidence has now been accelerated by the provision of proofs of evidence, but no different consequence or application of principle should apply just because of this acceleration of the process of communicating to the adversary (and the court) the evidence to be adduced.
45 It is important in this appeal to have regard to the factual position and how the question comes to be determined. The documents the subject of this appeal are finalised proofs of evidence in the possession of Visy -- not proofs of evidence (copy or otherwise) in the possession of the ACCC or those filed in the Court. As such, our attention is on the creation of the finalised proofs of evidence and their service upon Visy. It is generally accepted that one would ask what was the intended use or uses of the finalised proofs of evidence which accounted for their being brought into existence: see Pratt Holdings Pty Ltd v Federal Commissioner of Taxation [2004] FCAFC 122; (2004) 136 FCR 357 (Pratt Holdings), 366-7 at [35] per Finn J. The purpose of creating the finalised version of a proof of evidence to be served on the opposing party in existing litigation is quite different from, say, the creation of a version of a proof of evidence prepared for the purpose of only being used by counsel for the taking of the viva voce evidence of a witness in court. Equally, the purpose for creating the finalised version of the proofs of evidence is different from the purpose for preparing drafts of proofs of evidence. Such proofs of evidence to be used by Counsel and drafts of proofs of evidence would be privileged in the normal course of events.
46 We should mention that the question of whether one focuses on the time of the creation of the finalised proofs of evidence or their subsequent communication to Visy does not appear to matter in this case, as there was no suggestion that the purpose for which they came to exist changed or was different between those two times. In GSA Industries (Aust) Pty Ltd v Constable [2002] 2 Qd R 146, 154 at [34] Holmes J suggested that, as the communication and not the document is the subject of privilege, it was arguable that a time later than the creation of the document may be relevant.
47 Another point to observe is that the implied limitation on use of the finalised proofs of evidence by Visy, once they had been received from the ACCC, as discussed in Harman [1983] 1 AC 280 is not relevant to the present appeal. As noted above at [10], that issue has been addressed by the primary judge and her Honour’s orders in that regard are not challenged on this appeal. This appeal is concerned with such confidentiality as might have arisen in the circumstances from any legal professional privilege, enjoyed by the ACCC, in the finalised proofs of evidence. The doctrine in Harman gives rise to an implied undertaking to the court not to use documents accessed or any information contained in them through the litigation process otherwise than for the legitimate purposes of the litigation. The rationale for the implied undertaking arises because of the coercive nature of the court process and its impact upon the citizen. It is a legal obligation which arises by operation of law. It is an obligation the court has the right to control and can modify or release a party to the litigation or third party therefrom: see Hearne [2008] HCA 36; 235 CLR 125. The court itself enforces the obligation imposed on a party to litigation or third party.
48 On the other hand, legal professional privilege is a common law right. The rationale for the privilege is quite different from that for the existence of the implied undertaking.
49 The limits on the use that can be made of the documents accessed or the information obtained though the litigation process do not attract the same confidentiality as those to which legal professional privilege attaches. For instance, documents obtained by discovery from an opposing party may be read in open court, and whether or not the principles of Harman then still apply to the party to the litigation, it is clear that the public can make whatever use they would like of the information so disclosed in open court: see British American Tobacco Australia Services Ltd v Cowell (No 2) [2003] VSCA 43; (2003) 8 VR 571, 587-8. However, if the document is privileged, no disclosure at all of such document can be made in court, and it would remain confidential.
50 Further, within the principles of Harman, the legitimate purposes of litigation would entitle an opposing litigant to disclose to his or her potential witnesses, or any one assisting in the litigation, the documents provided by the other side. Whilst the ‘privacy’ of the other party is sought to be protected, it is not the confidentiality of the type sought to be protected by legal professional privilege. The confidentiality relevant to legal professional privilege is that of preventing one’s opponent from seeing the confidential communications between a client and his or her legal representative or otherwise brought into existence for the dominant purpose of the litigation.
51 It is important to note that there is no element of compulsion as to the nature and content of the evidence to be adduced where an order is made providing for the service and filing of witness statements, as in the case of the orders of Heerey J. Whilst a party's ability to lead oral evidence at the trial is conditioned on notice of that evidence being provided in the form of a proof of evidence, the party is not compelled to disclose any particular information, document, or possible item of evidence. The party has the absolute discretion to decide what, if any, evidence is to be adduced on that party’s behalf. Until that decision is made proofs of potential witnesses, or other documents assembled for the purposes of the litigation, remain privileged from production. Any party may keep such information or documentary material to itself. It may decide not to call a particular witness, even though it has a final proof of that possible witness’ statement. These are the same options a party has at a trial without the direction being given of advance proofs of evidence. In Comfort Hotels Ltd v Wembley Stadium Ltd [1988] 1 WLR 872, Hoffman J pointed out (at 877):
Order 38, r 2A has the effect of empowering the court to make it a condition of a party’s ability to lead oral evidence at the trial that he should have given prior notice of such evidence in the form of a written statement served on the other parties. It does not mean that he can be compelled to disclose any document or information. Anything which he does not wish to disclose he may still keep to himself. It is only if he wants to disclose the information by way of evidence at the trial that he may now be required as a precondition to disclose it in written form in advance.See also Black & Decker Inc v Flymo Ltd [1991] 1 WLR 753 at 755.
52 It is necessary not to confuse the purpose of the court in making directions to ensure the advance disclosure of evidence with the purpose of a party in creating and serving on the other side finalised proofs of evidence. The relevant purpose in the context of legal professional privilege is the purpose of the party (or his or her agent): see, eg, Pratt Holdings [2004] FCAFC 122; 136 FCR 357 at [35] per Finn J. In this matter the purpose of the finalised proofs of evidence was to tell the ACCC’s opponent Visy what the ACCC in any event wanted to disclose to Visy (and the court) and it fulfilled that purpose by giving advance notice of the evidence to be led. The primary purpose of the court in making an order for the advance disclosure of evidence includes ensuring the orderly and efficient disposition of the trial, in the interests of the parties and in the public interest, and to avoid surprise at the hearing: see Complete Technology Pty Ltd v Toshiba (Australia) Pty Ltd [1994] FCA 1314; (1994) 53 FCR 125 (Complete Technology) at 131 per Hill J.
53 As we have already indicated, the finalised proofs of evidence were created and served for the dominant purpose of use in existing litigation, but were obviously not to remain confidential as far as Visy was concerned. They were intended to be provided to Visy.
54 The above application of principle disposes of the appeal. The ACCC relies upon litigation privilege. The finalised proofs of evidence were prepared for provision to and provided to Visy, the ACCC’s opponent in existing litigation. The disclosure was not made on a relevantly confidential basis, although made expressly with the protection of the ‘implied undertaking’. The fact that the existence of the implied undertaking was expressly part of Heerey J’s orders makes no difference to the analysis. The ACCC did not seek any form of restriction upon the use Visy could make of the finalised proofs of evidence, save as to the limited ‘confidentiality’ regime already in place.
55 As the subject matter of this appeal is the finalised proofs of evidence in the possession of Visy, and not copies of them, say, in the hands of the ACCC, no issue waiver arises. If, for instance, the finalised proofs of evidence in the possession of Visy were no longer available, and copies in the hands of the ACCC were sought, a question of waiver may arise in these circumstances having regard to the service of the finalised proofs of evidence. This is not the current position.
FURTHER OBSERVATIONS ON SPECIFIC SUBMISSIONS
56 Having regard to some of the arguments raised by the parties, it is necessary to make some further observations.
57 The approach we have adopted is consistent with comments made in Attorney-General for the Northern Territory v Maurice [1986] HCA 80; (1986) 161 CLR 475 (Maurice), in which Aborigines claiming to be the traditional owners of certain land filed with the Aboriginal Land Commissioner and handed to the other parties a claims book in which particulars of the claim and certain material in support were set out. In the course of the proceedings the claimants made incidental reference to its contents. It was held that, by lodging and distributing the book and making limited reference to it, the claimants had not waived their legal professional privilege in relation to source materials that had been used in preparing the book but which neither formed part of it nor were mentioned in it.
58 Chief Justice Gibbs, obiter, commented that (at 480):
The matter was argued as though the question in issue was whether source material is waived by a waiver of the privilege in respect of a document derived from that source material. Although it does not matter, it does not seem to me right to suggest that the 1982 claim book was privileged. It was not a document which had been brought into existence for the sole purpose of being submitted to legal advisers for advice or use in legal proceedings: see Grant v Downs [1976] HCA 63; (1976) 135 CLR 674; 11 ALR 577. On the contrary the completed claim book (any drafts were no doubt in a different situation) was intended to be, and was, communicated to all the parties concerned and it was open to any party to make any proper use of it. However, if the claim book had been privileged, there can be no doubt that the distribution of the copies would have waived the privilege. On either view the question is whether the publication and use of the claim book constituted a waiver of the privilege in respect of the documents which formed some of its sources. (Emphasis added).59 Justice Dawson, also obiter, stated (at 495-6):
I should say at the outset that I regard it as inappropriate to speak in terms of waiver of privilege in relation to the claim book. Whilst it may be difficult to describe with any precision its true nature, the purpose of the claim book was to give notice of the claim made by the claimants, not only in relation to the area of land over which the claim was made, but also in relation to the basis of the claim, that is to say, the basis upon which it was said that the claimants were the traditional owners of the land. The practice of lodging a claim book had developed previously and its function was recognised in the revised Practice Directions issued by the Commissioner in 1979. The Practice Directions also require those appearing on the hearing of an application, as far as is practicable, to prepare and exchange statements of their intended evidence and any material of a technical nature proposed to be used as evidence and to give a copy of those statements and that material to the Commissioner's Associate before the hearing: see Aboriginal Land Commissioner's Report for year ended 30 June 1979 (1980), at pp 9–13. The development and the nature of a claim book is described by a former Commissioner, Toohey J, in an article entitled "Aboriginal Land", Federal Law Review (1988), 159 at p.173, as follows:No doubt a claim book ordinarily -- and certainly in the case of the 1982 Claim Book -- goes somewhat further than a statement of claim. But its initial purpose is to make known the case which the claimants seek to put. It may subsequently be accepted as evidence on the basis that the author or authors are available for cross-examination if required: Toohey, supra at p 173. Until it is placed in evidence, which never occurred with the 1982 Claim Book, it remains no more than a statement of the claimants’ case for use in the relevant proceedings by all parties. It is a document which is intended to be communicated to the Commissioner and other participants in the hearing. It is not in any sense a confidential communication nor is it intended to be. In those circumstances I am unable to see how it is a document to which legal professional privilege attaches. Before it emerges in its final form, successive drafts of a claim book may be privileged but this is not because of any privilege attaching to the final product. Draft pleadings in an action may be privileged, but I have never heard it suggested that a statement of claim or a defence or a reply is privileged so that the privilege is waived when it is filed or delivered to the other side. The reason why the draft may be privileged before the document is completed was early explained in Walsham v Stainton (1863) 2 H & M 1 at 4 ; 71 ER 357 at 358, upon the basis that, although after a pleading has been filed it becomes publici juris, the drafts "might disclose the precise character of confidential communications with the solicitor, by showing the alterations made from time to time". In the same way a letter to the other side in litigation which is drafted in a solicitor's office may be privileged before it is sent because it may reveal confidential communications between the solicitor and his client. Once it is sent, however, it ceases to be confidential and there is no privilege in it, not because privilege in the document is waived, but because no privilege attaches to it. When the claim book in this case reached final form or, at all events, when it was put to the use for which it was intended, it was not a confidential communication and not a privileged document. Legal professional privilege exists to secure confidentiality in communications between a legal adviser and his client but it can have no application in relation to a document the purpose of which is to communicate information to others. Of course, what is contained in such a document may reveal some confidential communication between a legal adviser and his client, but if it does do so and so waives privilege, the waiver is of the privilege in the anterior communication and not in the document itself. (Emphasis added.)"Claimants are required to lodge particulars of their claim, the primary purpose of which is to identify the land claimed and those said to be the traditional Aboriginal owners. The practice has developed of lodging a claim book some weeks before the hearing. Usually this book is prepared by one or more of the anthropologists whom the claimants propose to call in support of their claim. The claim book has become a substantial and sophisticated document which not only identifies the land and the traditional owners. It plots sites of significance on a map, formulates the principle of local traditional land holding and, with the use of genealogies, identifies the traditional owners, gives some history of the claim area since white contact, and generally canvasses the advantages to the claimants and the disadvantages to others if the claim is acceded to."
60 The ACCC sought to distinguish the type of documents referred to in Maurice [1986] HCA 80; 161 CLR 475 from the finalised proofs of evidence. The ACCC contended that the sort of documents discussed in Maurice are ones which are similar to the claim book the subject of that case, namely documents which will become public. The ACCC alternatively contended that final versions of affidavits and statements of claim prepared for filing in proceedings would not attract privilege (although drafts of those documents would) but that finalised proofs of evidence are fundamentally different in character because that they may never be tendered or even referred to at trial. The ACCC referred to the existence of the "Harman" (or implied) undertaking which Heerey J expressly ordered would bind Visy in relation to the finalised proofs of evidence, and argued that this supported the notion that the ACCC, when producing its finalised proofs of evidence, expected that an obligation of confidence was owed by Visy and that this confidence underpinned the privilege which it claims subsisted in the finalised proofs of evidence.
61 There is undoubtedly a distinction between a pleading on the one hand and proofs of evidence and affidavits filed in accordance with a direction given by the Court on the other. Pleadings may be inspected, unless a confidentiality order is in place, by a search of the Registry: see O 46 r 6(1) and (2) of the Federal Court Rules (Cth). On the other hand, affidavits and witness statements filed will not be able to be inspected without the leave of the Court, and this may not occur if the affidavit or witness statement has not been admitted into evidence or otherwise relied upon or referred to: see O 46 r 6(3) and Churche v Australian Prudential Regulation Authority (No 3) [2006] FCA 1168 at [26]. We note that, whilst O 46 r 6(3) distinguishes between affidavits (see O 46 r 6(3)(a) and unsworn statements of evidence (see O 46 r 6(3)(b)), no different consequence arises from the fact that there exists affidavits or unsworn statements of evidence.
62 However, even accepting this distinction between a pleading and unsworn statements of evidence, is this a relevant distinction in the circumstances of this case, for determining whether legal professional privilege attaches to the finalised proofs of evidence intended to be given to an opponent, not otherwise sought to be made confidential? Does it matter that members of the public do not have access to the finalised proofs of evidence through a search of the Registry, when the opponent has access to the proofs, and can disclose their contents to other persons, subject only to specific portions of them being confidential, and subject to the principles of Harman 1 AC 280? Further, is there a relevant distinction between final affidavits and finalised proofs of evidence?
63 In our view, the operation of the Rules of Court and legal professional privilege are quite distinct. It may be that the general law protection provided by the Harman principle is buttressed by Rules of Court (see Hearne [2008] HCA 36; 235 CLR 125, 155 at [98]), but this is in relation to accessing the court file. The Rules of Court do not inform, nor impact upon, the principles of legal professional privilege. The fact that a pleading may become public is not to the point. Once a document in question (here the finalised proof of evidence) is intended to be given to an opposing party, it is not a document in which privilege subsists. As a matter of principle, this is sufficient to conclude that no privilege attaches to the finalised proof of evidence.
64 Further, we see no distinction for the purposes of this appeal between final affidavits and finalised proofs of evidence. Whilst the use that can be made of such documents at trial may depend on this distinction, for the purposes of determining whether privilege attaches to such documents, there is no consequence based on the distinction. The cases relied upon by the ACCC do not make this distinction for the purposes of the application of the principles we have applied: see Liberty Funding Pty Ltd v Phoenix Capital Ltd (2005) 218 ALR 283 (Liberty Funding) at [21] (where the distinction was as to an affidavit which was in the nature of discovery, not an affidavit of evidence to be read at trial) and Austress Freyssinet Pty Ltd v Marlin International Pty Ltd [2002] NSWSC 958 (Austress) at [6]-[8] per Barrett J (where reference was made to both affidavits and witness statements). Importantly, whether it be an affidavit, witness statement or finalised proof of evidence, the purpose in serving and filing is not within the rationale of litigation privilege once disclosed to an opposing party. This is because, if the privilege is to protect the confidential communication between one party and that party’s legal advisers as to the evidence that might be led at trial, the very giving of such information to the opposing party flies in the face of the rationale for the continued existence of the litigation privilege.
65 The ACCC further relied upon State Bank of South Australia v Smoothdale (No 2) Limited [1995] SASC 5070; (1995) 64 SASR 224 (Smoothdale), which addressed the issues currently under discussion, as well as the issue of waiver.
66 In Smoothdale, King CJ, with Mullighan and Nyland JJ concurring, made the following observations relevant to the first issue before us (at 226-7):
The argument sought to be advanced by the appellant is that the statements of which production is sought, as distinct from the original statements taken from the witnesses, were prepared and signed for the purpose of compliance with the order, and were not documents brought into existence for submission to legal representatives for the sole purpose of use in legal proceedings; Grant v Downs [1976] HCA 63; (1976) 135 CLR 674, Baker v Campbell [1983] HCA 39; (1983) 153 CLR 52 at 108 per Brennan J. I think that the argument is fallacious. The documents in question are in substance merely a reproduction of statements already obtained from witnesses for the sole purpose of use in the proceedings, in a form suitable for compliance with the order. They do not lose their character as statements of witnesses because they are prepared with a view to compliance with the order. It is true that the court may order their use as evidence in chief at the trial, but I do not think that that prospect affects the essential character of the documents as statements of witnesses. It is implicit in the argument for the appellant that privilege would not attach to statements of witnesses prepared and signed with a view to compliance with the usual order, notwithstanding that they were never delivered pursuant to the order because a decision was taken not to call the witnesses. They would be discoverable documents in those and any other proceedings. That, as it seems to me, would make a mockery of legal professional privilege and exposes the plainly fallacious nature of the argument. In my opinion it is plain that legal professional privilege attached to the statements until they were delivered pursuant to the order. The point sought to be raised by amendment is plainly untenable and the proposed amendment should be refused for that reason, quite apart from the question of whether the point should be permitted to be raised at this stage. It was argued by Mr Conti that even if the statements were privileged when brought into existence, they ceased to be privileged documents when delivered to the other parties, quite apart from any question of waiver, because they were no longer confidential documents. He relied upon a passage in the judgment of Dawson J in Attorney-General (NT) v Maurice (1986) 161 CLR 475 at 495-496. There is, however, a marked difference between the purpose and function of the claim book in that case and of statements of witnesses. The claim book's very purpose was to communicate the particulars of the claim to the Aboriginal Lands Commissioner and the other parties. Once communicated, there could be no element of confidentiality. Statements of witnesses are by their nature confidential documents. Their communication to another party for a limited purpose pursuant to a court order does not appear to me to deprive them necessarily of every element of their confidential character. They retain the character, except as to use by the other party for the limited purpose, "until either the witness makes the statement public by verifying it on oath in the witness box or the party who served the statement waives the privilege", Fairfield-Mabey Ltd v Shell UK Ltd [1989] 1 All ER 576 at 577, or a party puts the statement in evidence pursuant to leave granted under par 3(e) of the Practice Note. Olney J explained the distinction between the Claim Book in Maurice's case and statements of witnesses, in Nilsen Industrial Electronics Pty Ltd v National Semiconductor Corporation (1994) 48 FCR 337 at 339-341, and I adopt that explanation.67 We are mindful that in Farah Constructions Pty Ltd v Say-Dee Pty Ltd [2007] HCA 22; (2007) 230 CLR 89 at 151-2, Gleeson CJ, Gummow, Callinan, Heydon and Crennan JJ reminded us that Australia has the one common law, and that:
Intermediate appellate courts and trial judges in Australia should not depart from decisions in intermediate appellate courts in another jurisdiction ... unless they are convinced that the [decision] is plainly wrong.68 It was contended by Cadbury that the decision in Smoothdale [1995] SASC 5070; 64 SASR 224 is plainly wrong. However, it has been adopted in a number of cases, as referred to by the primary judge.
69 Apart from arguing that the decision in Smoothdale was contrary to principle, Cadbury relied upon the decision in Liberty Funding 218 ALR 283 in an attempt to undermine the authority of Smoothdale. In Liberty Funding, the Full Court of the Federal Court doubted the correctness of the approach taken in Smoothdale, and said that (at [24]):
Whilst on the approach that we have taken it is unnecessary to analyse Smoothdale, Akin and Sevic in detail, it appears to us that there is a real issue as to the correctness of those decisions, at least in so far as they deal with the question of waiver at common law by service of statements (or affidavits) of witnesses in advance of the trial.70 However, their Honours expressly stated that the matters raised by Liberty Funding could be disposed of ‘without the necessity for expressing a concluded view on the correctness or otherwise of the approach of the Full Court in Smoothdale or of the Court of Appeal in Akins v Abigroup Ltd (1998) 43 NSWLR 539 or Sevic v Roarty [1998] NSWSC 462; (1998) 44 NSWLR 287’: see Liberty Funding at [27]. In any event, the doubt expressed in Liberty Funding as to the correctness of Smoothdale seemed to be especially directed to the issue of waiver, and not the first issue in this appeal.
71 Therefore, it is necessary for us to consider from the point of view of legal principle and the rationale of litigation privilege the reasoning in Smoothdale as referred to above.
72 At one level, there is a clear distinction between the circumstances upon which the court in Smoothdale proceeded and the present circumstances. Here, the evidence is that the finalised proofs of evidence were for the purpose of being provided to Visy so as to convey to it the content of the evidence to be adduced by the ACCC. As the passage from the judgment of King CJ in [66] above indicates, the purpose of the witness statements in issue in that case was for consideration by the legal representatives of the party which caused them to be created for use in the proceedings. We do not, therefore, regard Smoothdale as directly addressing the particular circumstances of this case.
73 However, if these observations in Smoothdale do relate directly to the present circumstances, we do not consider it correct to conclude that the final witness statements were being prepared and signed for the purpose of compliance with a court order or that the documents were merely reproductions of statements already obtained by witnesses for the sole (now dominant) purpose of use in the proceedings so that they were privileged. This fails to appreciate a number of matters. Drafts and final proofs are by nature and in fact different documents. A draft may well include information which is not included in a final version of a witness statement given to an opposing party. A draft may well be a ‘discussion’ document, intended only to be seen and considered by the party’s legal advisor. It should not be assumed that the final version is just a reproduction of anything that comes before it. Even if it be so, once the decision has been made to call a particular witness to give evidence and that the evidence will comprise that which is in the witness statement, that final witness statement assumes a different character. The final version of a proof of evidence is the document prepared for disclosure to the court and to the opponent. The ‘essential character’ of a final proof of evidence is to make disclosure to the opponent and the court of the evidence which is proposed to be led at trial. Such finalised witness statements may be prepared in the finalised form because of the court order for disclosure of evidence before the hearing. However, the fact remains that the purpose of the party preparing and delivering a final version of a witness statement is to give advance notice of what evidence that party proposes to put before the court. It does not matter whether the finalised version was or was not intended to be tendered in court -- the purpose of bringing into existence the finalised proof of evidence was to give it to the opposing party at the time of service and to disclose the information contained in the proof.
74 Chief Justice King also distinguished between a final version of a statement of claim (or claim book) and witness statements. We have already considered this distinction. Chief Justice King said that statements of witnesses are ‘by their nature’ confidential documents. He relied upon two cases Fairfield-Mabey Ltd v Shell UK Metallurgical Testing Services (Scotland) Ltd [1989] 1 All ER 576 and Nilsen Industrial Electronics Pty Ltd v National Semiconductor Corporation (1994) 48 FCR 337, to support his conclusion.
75 We do not consider that reliance on those two cases assists in the application of principle. The cases referred to do not examine the issue as one of legal professional privilege, but by reference to the Harman implied undertaking. This was explained by Hill J in Complete Technology [1994] FCA 1314; 53 FCR 125 at 133-4:
In reaching this conclusion I have the misfortune to differ somewhat from the comments made by Olney J in Nilsen Industrial Electronics Pty Ltd v National Semiconductor Corporation (1994) 48 FCR 337. In that case his Honour had to consider whether discovery should be ordered of witness statements filed in proceedings brought by the applicant in this Court against a third party in the Supreme Court of Victoria. Those witness statements had been filed and served in the Victorian proceedings but not read. It had been argued that the witness statements attracted legal professional privilege. The argument in support of the continued existence of legal professional privilege relied upon Maurice's case. This, his Honour regarded, with respect, correctly, as distinguishable because the claim book was in the nature of a pleading and as such did not constitute a waiver of privilege of the underlying material. It seems that no other authority was cited to his Honour. However, his Honour found support for the view that the witness statements, although served, continue to attract legal professional privilege in decisions in the United Kingdom in Fairfield-Mabey Ltd v Shell UK Ltd [1989] 1 All ER 576 and Prudential Assurance. In the former, Judge Bowscher QC had said, inter alia, (at 577):In this ruling, it will be noted no reference is made referring explicitly to legal professional privilege. The ruling, which was given in the course of a trial, dealt with the manner in which witness statements exchanged might be used during the trial. It does not accord with what I understand to be the practice adopted in this court, nor for that matter the practice adopted in the Supreme Court of New South Wales. Olney J referred also to the Prudential Assurance case, particularly at 769; 890 where Fairfield-Mabey Ltd is referred to, but only as a case to which reference had been made in the course of argument. I have already referred to Prudential. That case also does not refer specifically to legal professional privilege, although what is said by Hophouse J (at 774; 894) may have been intended to relate to it. At that page his Honour said:"I take the view that such statements are served on a confidential basis and that they remain confidential until either the witness makes the statement public by verifying it on oath in the witness box or the party who served the statement waives the privilege. The confidence in the statement is the confidence of the party on whose behalf the statement was taken. That is not to say that there is any property in a witness. It may be that more than one party will take a statement from one particular witness but each statement will be confidential to the party taking it." (Original emphasis).
However, later on that page and at 775 his Honour referred to the matter as arising under the duty that was owed to the Court, breach of which amounted to contempt, and which duty could be released by the Court. It would be strange if the Court could act in such a way as to waive legal professional privilege. Rather, it seems to me, that his Honour was referring to the [implied undertaking] to which I have referred."In my judgment when a statement is served pursuant to a direction given under O 38, r 2A and the witness to whose evidence that statement relates is never called by that party to give evidence (whether it be because the trial never takes place or for any other reason) that statement remains a privileged document in the same way as a without prejudice communication remains privileged. The party serving the statement may not be compelled to disclose the statement to any other person and is entitled to prevent any other person using that statement without his consent and, in particular, using it in evidence against the person who originally served the statement."
76 The Harman principle seems to us to be the principle to apply in the case of disclosure to an opponent pursuant to a Rule of Court, or Court direction, not by recourse to principles of litigation privilege. If the principles are as we have stated them, then the argument that the finalised proofs of evidence did not attract legal professional privilege is to be readily accepted. Whilst clearly created for the purposes of existing litigation, they were created to be served upon Visy, the opponent in adversarial litigation, and thus no privilege could arise. However, the principles of Harman 1 AC 280 (as explained by the High Court in Hearne [2008] HCA 36; 235 CLR 125) would provide the protection needed so that the information contained in the finalised proofs of evidence could not be misused.
77 We consider, therefore, that the principles enunciated in Smoothdale on this issue, if they apply directly on the present facts, are inconsistent with the rationale of litigation privilege and are clearly wrong, and should not be followed.
78 If we are correct in the above analysis, no other questions necessarily arise for determination.
79 We should indicate that Cadbury argued that, even if the finalised proofs of evidence as at the time of their creation were held to be privileged, the case of Commissioner of Australian Federal Police v Propend Finance Pty Ltd [1997] HCA 3; (1997) 188 CLR 501, with its emphasis on communications rather than documents, requires a separate consideration of the service of the statements on Visy in order to establish whether that communication was privileged (independently of any privilege which existed in the document immediately prior to service).
80 On our analysis, whenever and whatever the ‘communication’ was for the purposes of the application of the principle of litigation privilege, focussing on the creation of the finalised proof of evidence, or its service upon Visy, the purpose was to give them to the ACCC’s opponent. This itself disposes of the appeal for the reasons outlined above.
81 In these circumstances it is unnecessary to consider the application of the principles discussed in Spotless Group Ltd v Premier Building and Consulting Group Pty Ltd [2006] VSCA 201; (2006) 16 VR 1 (Spotless), and whether the majority view in that case was correct in the characterisation of the ‘communication’ made in that proceeding.
82 Whilst unnecessary to do so, as the waiver question was considered by the primary judge and extensive argument was addressed on this issue, we now proceed to consider the waiver issue.
WAIVER OF PRIVILEGE
83 The primary judge found that any privilege in the finalised proofs of evidence which may have existed had been waived in its entirety once they had been served on Visy. Her Honour made the following comments (at [13]-[23]):
• After referring to Mann v Carnell [1999] HCA 66; (1999) 201 CLR 1 (Mann), her Honour referred to the body of authority supporting the proposition that:
"statements or affidavits filed and served in proceedings, but not read in open court, remain ... subject to legal professional privilege".
See Liberty Funding 218 ALR 283 at [15] (citing Nilsen 48 FCR 337; Smoothdale [1995] SASC 5070; 64 SASR 224; Akins 43 NSWLR 539; Sevic 44 NSWLR 287); Spotless 16 VR 1; AMP Financial Planning Pty Ltd v CGU Insurance Ltd [2004] FCA 1196; Polyaire Pty Ltd v K-Aire Pty Ltd (2003) 226 LSJS 109 and Australian Competition and Consumer Commission v Telstra Corporation Ltd [2000] FCA 28; (2000) 96 FCR 317.
• Her Honour then referred to authority for the proposition that filing and service, without more, operates as a full or limited waiver: eg, Complete Technology [1994] FCA 1314; 53 FCR 125; Austress [2002] NSWSC 958; Chief Executive Officer of Customs v Neate (1998) 144 FLR 373; Black & Decker 1 WLR 753; In the Marriage of Crowe (1988) 12 Fam LR 696 and Leaders Shoes (Aust) Pty Ltd v National Insurance Co of New Zealand Ltd [1968] 1 NSWR 344.
• Her Honour also referred to Liberty Funding 218 ALR 283, and commented that its reasoning was (at [16]):
... both persuasive and sensible. If it is conceded, as it must be, that a party upon whom a witness statement is served may use that statement in any way within the context of those proceedings (that is the whole reason why it is filed and served), it follows that it is conduct "inconsistent with the maintenance of the confidentiality which the privilege is intended to protect" (Mann v Carnell [1999] HCA 66; (1999) 201 CLR 1 at [29]) and an implied waiver of privilege has occurred. Indeed, if one follows the Full Court’s reasoning to its logical conclusion, the filing and service operates as a complete, not simply limited, waiver of legal privilege.(Original emphasis).
• Her Honour accepted that there may be (at [18]):
... something less than a full waiver of privilege; rather, the point is that for there to be only a limited waiver, the original holder must still retain full control as to further dissemination of the document. So, for example, providing a witness statement to a party but subject to conditions that the party may use it only for internal purposes, may not read it in court, may not place it into evidence and may not otherwise rely on it in examination or the proceedings generally might constitute a limited waiver only: see Goldberg v Ng [1995] HCA 39; (1995) 185 CLR 83, 96 (stating that the waiver "can be limited so that it applies only in relation to particular persons, materials or purposes"); Goldman v Hesper [1988] 3 All ER 97 (cited in Mann v Carnell [1999] HCA 66; (1999) 201 CLR 1 at [29] for the proposition that disclosure "for a limited and specific purpose" will not lead to loss of the privilege).
• Her Honour considered that Visy was under no constraint as to the purposes for which it could use the finalised proofs of evidence filed and later served on Visy by the ACCC.
• Her Honour further commented that Visy was bound to limit its use of those statements to the context of the ACCC proceeding and the source of that limitation was its implied undertaking to the court, not any legal professional privilege held by ACCC.
• Her Honour commented in this regard that:
A basic principle of Australian litigation is that parties give an implied undertaking to the court not to use any document produced to them in the course of litigation except in the context of that litigation: Esso Australia Resources Ltd v Plowman [1995] HCA 19; (1995) 183 CLR 10, 32, 36-37, 46; see also Harman v Secretary of State for the Home Department [1983] 1 AC 280. Where other courts have erred doctrinally is in failing to distinguish the implied undertaking analysis from the waiver analysis. The Full Court in Liberty Funding recognized this error when it stated (at [26]): "This so-called ‘limited waiver’ by service such that the privilege is waived only for the purpose of the legal proceedings in question might be seen to be no more than the operation of the implied undertaking dealt with in Harman": Liberty Funding (2005) 218 ALR 283. In other words, the limitation on Visy’s use of the witness proofs stems not from limitations to be inferred from the conduct of the ACCC in serving them, but in Visy’s own obligations to the Court.(Original emphasis).
84 The ACCC, in essence, submitted that the primary judge erred in failing to apply or follow a substantial body of earlier authority (the leading case being Smoothdale [1995] SASC 5070; 64 SASR 224) which stands for the proposition that unsworn proofs of evidence filed and served in proceedings on an opponent pursuant to a court order but not read in open court or otherwise tendered into evidence remain subject to legal professional privilege in the hands of the recipient.
85 The ACCC relied on the following passages of King CJ in Smoothdale on the waiver issue (at 227-31):
The real question on this appeal is whether the delivery of the statements to the other parties amounted to a waiver of the privilege. The mere fact that a document is in the hands of a person other than the parties to the litigation in which its production is required, does not of itself deprive the document of its privileged character: Hartogen Energy Limited (In liq) v Australian Gas Light Co (1992) 36 FCR 557 at 571. There must be some intentional communication amounting to waiver or circumstances in which the law imputes or implies waiver. It is obvious, of course, that in delivering the statements to the other parties, the respondent waived privilege at least to the extent necessary to permit the use of the statements by those parties for the purposes of the obligation: Black & Decker Inc v Flymo Ltd [1991] 1 WLR 753; [1991] 3 All ER 158. Mr Conti argued that waiver for any purpose was waiver for all purposes and that waiver in respect of one person was waiver in respect of all. He maintained that the notion of partial waiver is not part of the law of this country. ... There is a general waiver of privilege if the party expressly waives privilege for all purposes or intentionally uses the documents in a manner which is incompatible with the retention of confidentiality. These witness statements, however, were never used in the public arena as they would have been if introduced into evidence: Springfield Nominees Pty Ltd v Bridgelands Securities Ltd (1992) 38 FCR 217 at 222-223. The delivery of statements pursuant to the order of the court is for the limited purpose contemplated by the Practice Note namely "the just, quick and cheap disposal of the proceedings". The object is to provide advance notice to the other parties of the evidence which the witnesses are expected to give and thereby to facilitate the hearing perhaps even to the point of the use of the statements as evidence in chief. There is an obligation on the recipients of documents pursuant to the discovery process not to disclose those documents or their contents for a collateral purpose: Harman v Secretary of State for the Home Department [1983] 1 AC 280; Crest Homes plc v Marks [1987] AC 829 at 853; Holpitt Pty Ltd v Varimu Pty Ltd [1991] FCA 269; (1991) 29 FCR 576. That obligation extends to the recipient of documents pursuant to an order of the court of the present kind; Springfield Nominees Pty Ltd v Bridgeland Securities Ltd (at 691). The documents therefore could not be disclosed for a collateral purpose and could not be put in evidence by the other parties without leave of the court. I can find nothing in the circumstances to indicate a use of the statements which is incompatible with the retention of confidentiality except to the extent that confidentiality must be modified to achieve the purpose of the Court Order namely to acquaint the other parties in advance with the evidence which the witnesses were expected to give. There was therefore no intentional waiver of privilege except to the extent of permitting use of the documents by the other parties for the purpose of preparing the case. It remains to consider whether in the case of delivery of witness statements pursuant to an order of the kind under consideration the law imputes or implies waiver of the privilege. There is a conflict in the decided cases. ... ... waiver should not be imputed in consequence of compliance with the order, to any greater extent than is necessary to accomplish the purposes of the order and the Practice Note pursuant to which it was made. I have reached the clear conclusion that the delivery of the statements pursuant to the order did not place the statements in the public domain and did not amount to a use of them in a manner incompatible with the retention of confidentiality and privilege except so far as waiver was necessary to permit their use for the purposes of the case in which they were delivered in accordance with the Practice Note and ordering the court. There being no express waiver or intentional use of the statements in a manner incompatible with the retention of privilege, the law will impute waiver only if the maintenance of privilege would, in the circumstances, be unfair to the party seeking discovery: Attorney-General (NT) v Maurice. I can see no unfairness to the appellant in the maintenance by the respondent of its privilege in the statements. Their disclosure to other parties in other proceedings is quite fortuitous as regards the appellant. If there is a question of fairness, it might be thought that the forced disclosure of the respondent's statements while the appellant retains privilege with respect to its statements would not be without some element of unfairness to the respondent.86 The ACCC further contended that her Honour misapplied Liberty Funding 218 ALR 283. The distinction between affidavits and finalised proofs of evidence was contended to be critical for the purposes of the application of waiver.
87 The ACCC contended that, as a matter of law, there can be a limited waiver of privilege, and that a complete waiver does not necessarily follow from disclosure to a party not holding the privilege. At the outset we indicate that there is no doubt that waiver imputed by operation of law may be limited: see Goldberg v Ng [1995] HCA 39; (1995) 185 CLR 83, 95-6 (per Deane, Dawson and Gaudron JJ). The ACCC argued that Smoothdale recognises that filing and service pursuant to compulsory court order entails only a limited waiver. The ACCC referred to various authorities applying the principles set out in Smoothdale.
88 The ACCC also referred to the relative importance of the Harman undertaking, contending that in Smoothdale, the implied undertaking was treated as being capable of supplying the necessary restriction to dissemination of documents served under compulsory order such that a conclusion may be reached that any privilege has only been waived for the limited purposes required by the waiver.
89 It was further argued that her Honour erred in finding that ‘a party upon whom a witness statement is served may use that statement in any way within the context of those proceedings’ led to the conclusion that there was a Mann [1999] HCA 66; 201 CLR 1 inconsistency, and that privilege was therefore waived in its entirety, because, according to the ACCC, the statements could not be used in ‘any way’ (giving as an example that such could not be used testimonially). It was contended that an important limitation on the uses that could be made of the finalised proofs of evidence was the Harman undertaking and that this limitation was of itself enough to find a limited waiver.
90 Visy made similar submissions, and contended that in Liberty Funding 218 ALR 283 the Full Court did not express a concluded view as to the correctness of the Smoothdale line of authorities and that the primary judge erred in placing the reliance she did on Liberty Funding, and failed to make a distinction between affidavits and witness statements. Visy submitted, in summary, that the primary judge erred because her reasoning:
• overstated the extent to which confidentiality is undermined when a witness statement or affidavit is filed and served in the Federal Court in accordance with pre-trial directions of the Court;
• failed to give due regard to principles concerning limited waiver of privilege; and
• failed to give due weight to the importance of the privilege in protecting the rights of citizens, including corporate citizens, under the law.
91 Cadbury argued that there was an express waiver of any privilege in the communication when it was sent to Visy as the ACCC did not expressly preserve confidentiality.
92 Cadbury asked that the Court apply Liberty Funding 218 ALR 283, in which the Full Court commented that ‘once [the proofs were] filed and served, a step was taken entirely antithetical to the confidentiality that might be said to have previously existed’ (at [22]). Put simply, Cadbury argued that ‘there could be no more obvious inconsistency between the conduct of the ACCC in serving the communications on Visy and the maintenance of confidentiality in that communication’ and that ‘[c]onsidered objectively, the ACCC’s action can only be viewed as a deliberate renouncement of its right not to disclose the evidence it would seek to lead at trial’.
93 Jarra Creek’s submissions focused on the lack of express confidentiality claimed by the ACCC at the time of service on Visy of the proofs, and that the order of Heerey J did not of itself render the statements confidential. Further, Jarra Creek argued that Heerey J’s orders did not compel the ACCC to file or serve anything. Rather, the ACCC was entitled to choose the evidence on which it proposed to rely and disclose that evidence. When it made its choice as to what it wanted to file and serve and thereby disclose, it ‘lifted the veil of secrecy to the extent of those disclosures’.
94 It was contended that to find limited waiver in the present case would require the ‘perverse’ conclusion that the ACCC had waived privilege for all purposes in favour of Visy while maintaining it against the consumers on whose behalf it ostensibly brought the relevant proceeding against Visy.
95 Since the hearing of this appeal, the decision of Gordon J has been considered by Finn J in Australian Competition and Consumer Commission v Construction, Forestry, Mining and Energy Union [2008] FCA 678, where his Honour made the following observations:
123 The case law in this country is discordant on whether one party to a proceedings can seek to tender admissions made in a witness statement or affidavit filed and served by another party in that proceeding pursuant to rule of court or court order, but who does not call the maker of that statement or read that affidavit. On one view, the statement or affidavit remains subject to legal professional privilege; on the other, filing and service operates, without more, as a full or limited waiver: see generally Cadbury Schweppes Pty Ltd v Amcor Ltd [2008] FCA 88 at [12]- [19] where the case law has been helpfully reviewed by Gordon J. 124 As I am in entire agreement with the conclusions reached by her Honour on the proper approach to be taken to the question in a case such as the present – particularly in light of observations made by the Full Court of this Court in Liberty Funding Pty Ltd v Phoenix Capital Ltd (2005) 218 ALR 283 at [25] – my comments will be brief. 125 I am prepared to assume for present purposes that Sutton and Noonan’s communications with the CFMEU’s and Noonan’s solicitors for the purpose of preparing their statements were confidential communications: cf Cadbury at [11]. The statements themselves were filed and served for the purposes of the proceedings pursuant to a number of directions made by Gyles J. Their service on the ACCC was subject to the implied undertaking given by the parties to the Court not to use any document produced to them in the course of the proceeding otherwise than in relation to the proceeding: see Esso Australia Resources Ltd v Plowman [1995] HCA 19; (1995) 183 CLR 10. The use proposed by the ACCC in this case raises no issue in relation to the implied undertaking: cf Cadbury at [20]-[22]. The only question arising from that use is one of privilege. Assuming the statements to be privileged prior to service, whether or not it subsists after their service falls to be determined by the common law and not by the Evidence Act, the provisions of that Act having no applications to a disclosure so made: cf s 122. 126 As the Full Court observed in Liberty Funding in endorsing the approach of Barrett J in Austress Freyssinet Pty Ltd v Marlin International Pty Ltd [2002] NSWSC 958 that a party could tender, as an admission, parts of an affidavit sworn by the opposing party (at [25]):Their Honours went on to point out (at [26]):Thus, it is necessary to posit a limited waiver, within a broad framework of the conduct of proceedings, which may bring about the result (as in Austress) that it is in the other side’s power to destroy the privilege entirely by putting the statement or affidavit into evidence or examining or cross-examining on its contents.
127 The reasoning of the Full Court, as Gordon J noted in Cadbury at [16], is persuasive and sensible and it leads to the conclusion that, save where a disclosure is made for a particular and limited purpose, the filing and service operates as a complete, and not simply limited, waiver of privilege: at [16]-[18]; for the reason that the uses that may be made of the served document in the proceedings are "inconsistent with the maintenance of the confidentiality which the privilege is intended to protect": Mann v Carnell [1999] HCA 66; (1999) 201 CLR 1 at [29]. 128 I agree with her Honour’s view of the approach that Liberty Funding mandates. It is the implied undertaking, not privilege, which in this case limits the use the ACCC can make of the statements, but that use is not inconsistent with, or precluded by, the undertaking. The tender is in the proceedings in which the statements were served.This so-called "limited waiver" by service such that the privilege is waived only for the purpose of the legal proceedings in question might be seen to be no more than the operation of the implied undertaking dealt with in Harman [and Esso].
96 In addition, Lander J in Australian Medic-Care Co Ltd v Hamilton Pharmaceutical Pty Limited (No 3) [2008] FCA 976 followed Gordon and Finn JJ preferring the line of authority to the effect that filing and serving of a witness statement, without more, amounted to a full or limited waiver.
97 Turning again to Smoothdale, and the principles therein stated relevant to waiver, what we have concluded in relation to the existence of the litigation privilege applies equally to this second issue of waiver. The orders of Heerey J did not involve any relevant compulsion. There is no relevant distinction between affidavits and finalised proofs of evidence. The principles of the Harman implied undertaking do not give rise to confidentiality which would support a claim for litigation privilege. Further, the approach of the Full Court in Liberty Funding is, as commented by the primary judge and Finn J, ‘persuasive and sensible’. Such an approach would lead to the conclusion that the filing and serving of the finalised proofs of evidence is a complete waiver of such privilege as existed in those documents before their filing and service.
98 In any event, the ultimate task is to apply the principles set out in Mann [1999] HCA 66; 201 CLR 1.
99 As stated in the joint reasons in Mann (at 13):
What brings about the waiver is the inconsistency, which the courts, where necessary informed by considerations of fairness, perceive, between the conduct of the client and maintenance of the confidentiality; not some overriding principle of fairness operating at large.100 The ‘principle of fairness operating at large’ is a reference to the fairness test which had been described by the High Court in Maurice [1986] HCA 80; 161 CLR 475 and applied by it in Goldberg [1995] HCA 39; 185 CLR 83.
101 In the joint reasons in Osland [2008] HCA 37; 234 CLR 275, Gleeson CJ, Gummow, Heydon and Kiefel JJ confirmed that the judgment as to whether there is inconsistency (between the conduct of the privilege-holder and the confidentiality which the privilege is intended to protect) ‘is to be made in the context and circumstances of the case, and in the light of any considerations of fairness arising from that context or those circumstances’ (297 at [45]). Questions of waiver are matters of fact and degree (see Osland at [49]).
102 The filing and serving of the finalised proofs of evidence obviously occurred in the context of existing litigation and for the purpose of the giving of notice of the proposed evidence to be adduced at trial. This is to be distinguished from the context of the cases of Mann and Osland, which did not occur in the course of litigation. The filing and serving of the finalised proofs of evidence was a deliberate act and, whilst made because of the existence of the orders of Heerey J, was made with the purpose of informing Visy of the proposed evidence to be led by the ACCC in existing litigation. It would have been inconsistent upon so filing and serving the finalised proofs of evidence on Visy for the ACCC to have claimed litigation privilege, and it remains inconsistent to now claim such litigation privilege. No unfairness to the ACCC arises. The ACCC was content for the information contained in the finalised proofs of evidence to be made known to Visy, and presumably, to be led in open court save as to certain parts specifically ordered to be confidential.
103 Therefore, in our view, given the context and circumstances of the filing and serving of the finalised proofs of evidence, there was a complete waiver.
104 In our view the application for leave to appeal should be granted, but
the appeal should be dismissed. If the parties can agree
upon cost orders, then
a joint minute can be provided to the Full Court. We will make an order in the
event that the parties cannot
agree as to costs and, in order that we can do so,
we will make provision for filing and serving competing draft orders and
submissions.
Associate:
Dated: 20
March 2009
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Solicitor for the Applicant:
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Australian Government Solicitor
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Counsel for the First Respondent:
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Mr M Wyles and Mr R Peters
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Solicitor for the First Respondent:
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Mallesons Stephen Jaques
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Counsel for the Second and Third Respondents:
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Mr P Solomon
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Solicitor for the Second and Third Respondents:
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Allens Arthur Robinson
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Counsel for the Fourth, Fifth and Sixth Respondents:
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Mr JBR Beach QC, Mr PD Crutchfield and
Mr MH O'Bryan |
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Solicitor for the Fourth, Fifth and Sixth Respondents:
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Arnold Bloch Leibler
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Counsel for Jarra Creek Packing Shed Pty Ltd (Intervener)
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Mr I Wylie
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Solicitor for Jarra Creek Packing Shed Pty Ltd (Intervener)
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Maurice Blackburn
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URL: http://www.austlii.edu.au/au/cases/cth/FCAFC/2009/32.html