Australian Competition and Consumer Commission v Prysmian Cavi E Sistemi Energia S.R.L.

REASONS FOR JUDGMENT 1 This is an application by the second respondent for the costs of its application for inspection of documents referred to in two notices to produce served on the applicant by the second respondent on 3 August 2010. The applicant had claimed that the documents were protected by legal professional privilege. 2 Three issues were raised for consideration on the application and neither party was wholly successful: see Australian Competition and Consumer Commission v Prysmian Cavi E Sistemi Energia S.R.L. (No 2) [2012] FCA 44. 3 The second respondent succeeded in persuading the Court that the date upon which litigation was reasonably anticipated was substantially later than that contended for by the Australian Competition and Consumer Commission (ACCC). The ACCC contended that the appropriate date was no later than 9 June 2011. The second respondent contended that the date was when Mr Osada presented himself for an interview with the ACCC on 15 September 2009. 4 The success on that issue meant that those documents which had been created prior to 15 September 2009 were not subject to legal professional privilege because they had not been brought into existence for the dominant purpose of reasonably anticipated legal proceedings. 5 The second issue which fell for determination was whether or not the documents for which the ACCC claimed legal professional privilege were created for the dominant purpose of litigation. On that issue the ACCC succeeded in respect of all those documents created after 15 September 2009. 6 The third issue related to whether the ACCC had waived privilege in respect of a class of documents. On that issue there was no real dispute between the parties as to the principles. The second respondent persuaded the Court that legal professional privilege in respect of one of the documents had been waived, but failed in respect of all of the other documents. 7 The end result is that both the second respondent and the applicant had success in relation to some of the issues raised, but neither party was wholly successful in respect of all of the issues. 8 Although in the result the applicant became obliged to produce a number of documents which it had claimed were subject to legal professional privilege, it succeeded in establishing that most of the documents for which the claim was made were privileged. 9 The second respondent has sought an order for costs and in the alternative an order that costs be in the cause. The applicant suggests that the appropriate order should be that each party bear its own costs. 10 In my opinion, because the parties were each partly successful on the respective issues which I have identified, the proper order ought to be as the ACCC contends, that is that there be no order for costs. There will be an order accordingly. I certify that the preceding ten (10) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Lander.