FEDERAL COURT OF AUSTRALIA

Australian Competition and Consumer Commission v Liquorland (Australia) Pty Ltd [2005] FCA 503

AUSTRALIAN COMPETITION AND CONSUMER COMMISSION v LIQUORLAND (AUSTRALIA) PTY LTD AND ANOR

NSD 769 of 2003

ALLSOP J

27 APRIL 2005

SYDNEY

No orders made.

REASONS FOR JUDGMENT

1                     An application was heard yesterday in relation to the draft statements of witnesses of the ACCC in particular and the application focused upon the draft statements of Mr Leigh Christopher O'Brien. The form of the application before me was, to a degree, informal, and to the extent that formalisation is necessary, that can be done.  There was placed before me a letter from Clayton Utz, solicitors for the second respondent, Woolworths, dated 21 April 2005, which enclosed a notice to produce. The notice to produce called for a large number of documents, not merely the draft statements of Mr O'Brien.  I raised with Mr Smith SC, counsel for the second respondent, yesterday that at some point I would need to understand why, in the preparation of a case which has taken over 18 months, a notice to produce of this kind was being served, in effect, the day before the hearing began for the purposes, it would seem, at least in part, of challenging the claims to privilege of documents which had been identified in the list of documents for some time. It is unnecessary, because of the view I have reached, to examine this question.  It may become necessary to examine it in more detail if cognate issues are raised about the balance of the notice to produce.

2                     No particular motion was put on to set aside the notice to produce, and the notice to produce has not yet been formally called upon in open court.  However, the parties sensibly, if I may say so, and conveniently argued the matter on the basis of whether or not the draft statements of Mr O'Brien were privileged, or privilege has been made out in relation to them, so that they may thereafter order their affairs in the conduct of the interlocutory aspects of the case upon the basis of my ruling.

3                     The evidence supporting the claim for privilege was in an affidavit of Mr Michael Terceiro, sworn 23 April 2005. Certain objections were taken to that affidavit, and I made rulings upon those objections yesterday.  In addition to that, and in part in consequence upon my rulings, Mr Terceiro gave evidence yesterday both in chief and under cross-examination at pages 77 to 96 of the transcript.

4                     I do not propose to set out in detail the evidence.  It is in short compass, and if I am wrong about my conclusions, that will be evident to anyone reviewing the transcript and my ruling.

5                     The argument propounded on behalf of Woolworths for the assertion that the privilege had not been made out was set out in careful outline of submissions of some six pages, which I will have put with the file and indexed on the face of the file with today's date, marked with a heading "Outline of Submissions of the Second Respondent on O'Brien Privilege Application".

6                     Central to those submissions is a distinction between the commencement of proceedings and the investigation of the matter.  With respect, I do not think that this is the appropriate analysis to make by reference to the evidence led on behalf of the applicant.

7                     The fact that there was a degree of information gathering for the purpose of decision-makers as to whether the proceedings would be begun does not gainsay a relevant purpose for privilege to be made out.  Indeed, to the extent that the careful input of legal advisers such as those mentioned in the affidavit, being solicitors and counsel, was necessary for the formulation of recommendations, it seems to me that that only makes out, rather than detracts from, the privilege.

8                     I do not find it necessary to comment on what might be seen to be the difference between the views of Goldberg J in Australian Competition & Consumer Commission v Australian Safeway Stores Pty Ltd (1998) 81 FCR 526 and Batt JA in Mitsubishi Electric Australia Pty Ltd v Victorian WorkCover Authority (2002) 4 VR 332as to the anticipation of litigation and its likelihood. To the extent that I am wrong about my view that it is unnecessary to decide, with respect, I tend to favour the view identified by Batt JA in Mitsubishi. The relevant purpose here was to obtain legal advice and to obtain legal advice with a view to the using of the material in anticipated litigation, which was a real possibility.

9                     In those circumstances, in my view, privilege in relation to the draft statements of Mr O'Brien has been made out.  To the extent that the parties need to have that formalised in an order for any particular purpose, including any application for leave, they should consider what order they wish, and I will make it.

Associate:

Dated:              18 May 2005