FEDERAL COURT OF AUSTRALIA

Candacal Pty Ltd v Industry Research & Development Board

[2005] FCA 1276

PRACTICE & PROCEDURE – clarification of ambiguity of reasons prior to extraction of order – Order 35 rule 7 Federal Court Rules

Autodesk Inc & Anr v Dyason (1993) 176 CLR 300

Ampolex Ltd v Perpetual Trustee Co (Canberra) Ltd (1996) 40 NSWLR 12

CANDACAL PTY LTD, ERINBOL PTY LTD, LELEQUE PTY LTD,

KENASHA PTY LTD, WASLYN PTY LTD, MAYGAIN PTY LTD,

GAPMINT PTY LTD, TREVYN PTY LTD, NARDIA PTY LTD,

IDGCC NO.1 INVESTMENTS PTY LTD, ROMBAR PTY LTD v

THE INDUSTRY RESEARCH AND DEVELOPMENT BOARD

WAD522 OF 2001

LEE J

9 SEPTEMBER 2005

PERTH

THE COURT ORDERS THAT:

On or before the 23 September 2005 the respondent make available for inspection by the applicants the redacted portions of the documents listed in Part 2 of Schedule 1 of the respondent’s Third List of Documents as set out below:

Document 1 - (save for 4^th paragraph on f.002)

Document 2

Document 4 - (save for 1^st paragraph on f.106)

Document 5

Document 8

Document 9 (save for last paragraph on f.038)

Document 11 – (save for material at “dot points” on f.086)  

Document 14 - (save for 4th paragraph on f.119)

Document 15 – (material said to be attached at f.120

Document 17

Document 18 - (save for items “1, 2, 3” at foot of f.178)

Document 55 - (save for paragraphs after first paragraph of f.361)

Document 69 - (save for ff.265, 266 and 267)

Document 70

Document 73

Document 87

Documents 88

Document 89

Document 90

Document 92 

Document 93 - (save for items “1, 2, 3, 4” after the words “inter alia” on f.363)

Document 94 - (save for items “1, 2, 3, 4” after the words “inter alia” on f.359)

Document 95

Document 96 - (save for items “1, 2, 3” after the words “inter alia” on f.350)

Document 97

Document 99

Document 102

Document 104

Document 106 - (save for the last paragraph on f.262)

Document 109

Document 110

Document 112

Document 114

Document 115

Document 116 (save for penultimate paragraph on f.137)

Document 129

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

REASONS FOR JUDGMENT

1                     On 24 May 2005 I delivered reasons on interlocutory applications that related, principally, to discovery of documents in this matter.  The parties were directed to file a minute of orders to give effect to those reasons.  On 21 June 2005 the respondent filed a notice of motion for further submissions to be made on the orders to be extracted.  On 5 July 2005 directions were made that the parties file submissions on the motion and that the motion be heard on 11 August 2005. 

2                     In the course of the hearing on 11 August 2005 counsel for the parties reached agreement (save for the one issue discussed below) on the terms of the orders to be extracted to give effect to the foregoing reasons and to provide for the further preparation of the matter for hearing. 

3                     The outstanding issue referred to above arose out of the content of [75]-[95] of the reasons.  It may be noted in passing that two typographical errors appear in [79] and [80] of the reasons.  In [79] “4 June 1999” should read “4 June 1997”, the date set out in the preceding paragraph, and in [80] the word “confidentiality” should read “client legal privilege”. 

4                     At [75]-[83] and [91]-[94] it was held that the respondent had not lost its right to claim client legal privilege in respect of certain discovered documents.  At [94]-[95] it was held that in respect of the documents identified in [95] the claim to client legal privilege was not maintainable and that the documents were to be “produced in full”.

5                     The respondent submitted that it was necessary that the intent of that paragraph be clarified before any order based on that paragraph was made.  It was submitted that if the paragraph was applied literally it would be inconsistent with earlier paragraphs (viz: [80]-[82]) and with rulings made in the course of the interlocutory hearings held in October 2003.  It should be noted that those rulings were made “in the running” and without the benefit of the detailed submissions considered in the preparation of the reasons provided on 24 May 2005, and were of an indicative nature to assist the parties resolve issues relating to discovery being regarded by counsel as “preliminary” or “tentative” rulings. 

6                     The applicants submitted that the respondent should not be permitted to “quibble” with the determination made in [95].  The orders made by consent on the 11 August 2005 provided that the obligation of the respondent to produce the discovered documents referred to in [95] await the further order of the Court. 

7                     I accept the respondent’s submission that clarification of the intent of paragraph [95] is necessary.  It is plain that it is in the interests of justice to remove a clear ambiguity in the reasons provided before any order is extracted based on those reasons. In the absence of further explanation as to how [95] is to be read substantial uncertainty as to the terms of the orders to give effect thereto will arise.  The terms of Order 35 rule 7 of the Federal Court Rules which provides the Court with power to vary or set aside an order or judgment after an order has been made or judgment has been pronounced confirm that there is power so to act before an order is made or judgment pronounced.  I am satisfied that it is appropriate to use that power to remove the ambiguity present in [95]: (See Autodesk Inc & Anor v Dyason (1993) 176 CLR 300).

8                     The statement in [95] that the documents referred to therein are to be “produced in full” is intended to refer to the determination that claims of client legal privilege made in respect of passages in documents described in the commencement of that paragraph, being passages which did not disclose the substance of legal advice, could not be maintained.  That is to say, passages in administrative memoranda which recite that legal advice has been obtained, or which provide a broad outline of that advice, or report that administrative steps have been taken consistent with legal advice obtained, do not attract a claim of client legal privilege: (See Ampolex Ltd v Perpetual Trustee Co (Canberra) Ltd (1996) 40 NSWLR 12 at 20).

9                     Of the documents identified in [95] as documents to which that ruling applied the respondent concedes that documents numbered 19, 24, 62, 66, 67, 74, 83, 85, 100, 101, 103, 111 and 117 are to be “produced in full”. 

10                  With regard to the remainder of the documents referred to in [95], redacted portions that do not sustain claims of client legal privilege and are to be disclosed in full occur in those documents as follows: 

Document 1 - (save for 4^th paragraph on f.002)

Document 2 - (material said at f.057 to be “attached” (“copy of the Mallesons report”) was not part of the discovered document and is not a redacted portion thereof)

Document 4 - (save for 1^st paragraph on f.106)

Document 5

Document 8

Document 9 - (save for last paragraph on f.038)

Document 11 - (a] save for material at “dot points” on f.086;  b] material said at f.083 to be an “Attachment” (“The Executive Summary of the Mallesons report”) was not part of the discovered document and is not a redacted portion thereof)

Document 14 - (save for 4th paragraph on f.119)

Document 15 - (material said at f.120 to be “Attached” (“Executive Summary of Mallesons Stephen Jaques report”) was not part of the discovered document and is not a redacted portion thereof)

Document 17

Document 18 - (save for items “1, 2, 3” at foot of f.178)

Document 55 - (save for paragraphs after first paragraph on f.361),

Document 69 - (save for ff.265, 266 and 267)

Document 70

Document 73

Document 87 - (material said at f.151 to be “Attachment 2”, (“legal advice … from AusIndustry Legal Unit”) and at f.145 to be “Attachment 3” (“Advice from legal counsel”) was not part of the discovered document and is not a redacted portion thereof)

Document 88

Document 89 - (description at f.084 of legal advice obtained is disclosed in substance in Exhibit G(1) Document 36, (f.169) and Document 38 (f.178))

Document 90 - (description at f.081 of legal advice obtained is disclosed in substance in Exhibit G(1) Document 36, (f.169) and Document 38 (f.178))

Document 92 

Document 93 - (save for items “1, 2, 3, 4” after the words “inter alia” on f.363),

Document 94 - (save for items “1, 2, 3, 4” after the words “inter alia” on f.359),

Document 95

Document 96 - (save for items “1, 2, 3” after the words “inter alia” on f.350),

Document 97

Document 99 - (material said at f.297 to be “Attachment 3” (“Advice from legal counsel”) was not part of the discovered document and is not a redacted portion thereof)

Document 102 - (material said at f.278 to be “Attachment 2” and “Attachment 3” was not part of the discovered document and is not a redacted portion thereof)

Document 104

Document 106 - (save for the last paragraph on f.262)

Document 109 - (description at f.254 of legal advice obtained is disclosed in substance in Exhibit G(1) Document 36, (f.169) and Document 38 (f.178))

Document 110 - (description at f.251 of legal advice obtained is disclosed in substance in Exhibit G(1) Document 36, (f.169) and Document 38 (f.178))

Document 112 - (description at f.218 of legal advice obtained is disclosed in substance in Exhibit G(1) Document 36, (f.169) and Document 38 (f.178))

Document 114 - (description at f.164 of legal advice obtained is disclosed in substance in Exhibit G(1) Document 36, (f.169) and Document 38 (f.178))

Document 115

Document 116 - (save for penultimate paragraph on f.137),

Document 129

Associate:

Dated:              9 September 2005