Australian Competition and Consumer Commission v Yazaki Corporation

IN THE FEDERAL COURT OF AUSTRALIA SOUTH AUSTRALIA DISTRICT REGISTRY GENERAL DIVISION SAD 321 of 2012

BETWEEN: AUSTRALIAN COMPETITION AND CONSUMER COMMISSION

JUDGE: BESANKO J DATE: 3 december 2014 PLACE: ADELAIDE

introduction 1 This is an application by the respondents to this proceeding for an order for the production of documents discovered by the applicant. The applicant claimed that the documents were protected by legal professional privilege and it relied on both limbs of the privilege, that is to say, privilege over communications between solicitor and client, or advice privilege, and privilege over documents prepared with a view to litigation, or litigation privilege. 2 I decided that the applicant's claim for privilege should be upheld and, on 17 November 2014, I made an order dismissing the respondents' application for production. These are my reasons for making that order. 3 For reasons I do not need to set out, the applicant accepts that, in the circumstances of this case, advice privilege does not extend beyond litigation privilege. The focus of the submissions of the parties was on litigation privilege and I can confine my attention to that privilege. 4 This proceeding was commenced on 12 December 2012 and the documents in issue pre-date the commencement of the proceeding. The earliest of the documents in issue is dated 28 March 2011. In those circumstances, there are two issues. The first issue is whether the applicant has established that proceedings were reasonably anticipated on or before 28 March 2011. The second issue is whether, assuming the answer to the first question is yes, the applicant has established that the documents were prepared for the dominant purpose of the proceedings which were reasonably anticipated. As this is an application for the production of documents before trial, the two issues are to be decided by reference to the relevant common law principles (Esso Australia Resources Limited v Commissioner of Taxation of the Commonwealth of Australia (1999) 201 CLR 49; Australian Securities and Investments Commission v Australian Lending Centre Pty Ltd and Others (No 2) (2011) 283 ALR 299 ("ASIC v Australian Lending Centre") at 301-302, [6]-[9] per Perram J). 5 The documents in issue identified by the applicant by class and by number in a supplementary list of documents are as follows: (1) Australian Competition and Consumer Commission ("ACCC") file notes of confidential communications with potential witnesses and/or their legal advisers (being documents 23, 24, 25, 26, 27, 28, 29, 32, 33-36, 37-39, 40-42, 43, 44, 45, 47, 48, 51-53, 56, 58, 67, 68, 88, 89, and 98); (2) Confidential correspondence passing between industry participants and the ACCC in relation to potential evidence (being documents 59-66, 74, 77, and 96); (3) Witness statements and draft witness statements (being documents 49, 50, 54, 55, 69-73, 75, 76, 78, 79-83, 90-92, 94, and 97); and (4) English translations of Japanese documents (being documents 99-109). 6 The applicant relies on four affidavits in support of its claim for privilege. The first affidavit was sworn by an employee of the applicant (John Roderick Rothwell) and it is part of the List of Documents. The applicant's reliance on Mr Rothwell's affidavit was largely formal and I do not need to refer to it again. I will need to refer at some length to the other three affidavits relied on by the applicant. They are all affidavits sworn by Mr George Kamencak, who is the Regional Director, South Australia, of the applicant. For their part, the respondents, without objection from the applicant, relied on a bundle of documents.

the applicant's claims 7 The applicant seeks declarations, an injunction, and civil penalties for contraventions by the respondents of the Competition and Consumer Act 2010 (Cth) and the Competition Code of Victoria as applied as a law of Victoria by s 6 of the Competition Policy Reform (Victoria) Act 1995 (Vic). In summarising the applicant's claims, it is sufficient for me to refer to the Competition and Consumer Act ("the Act"). 8 There are six major participants in the relevant events. The first respondent is a company incorporated in Japan, and the second respondent, which is the first respondent's wholly owned subsidiary, is incorporated in Australia. The two respondents supply wire harnesses, which are electrical systems which facilitate the distribution of power and the sending of electrical signals between the various components of a motor vehicle. Sumitomo Electric Industries Ltd ("SEI") is incorporated in Japan and it is the majority shareholder of SEWS Australia Pty Ltd ("SEWS-A"). SEI and SEWS-A also supply wire harnesses for use in new motor vehicles. 9 The Toyota Motor Corporation and its related entities, including Toyota Motor Corporation Australia Ltd, manufacture motor vehicles, including a model called a Toyota Camry, in various locations around the world, including in Australia. 10 The Toyota companies required wire harnesses for their new vehicles and, in particular, they required them for their 2006 Toyota Camry and 2011 Toyota Camry. The thrust of the applicant's case is that the respondents, on the one hand, and SEI and SEWS-A, on the other, as competitors in the supply of wire harnesses to the Toyota companies, agreed to structure the quotes that they provided to the companies so that the incumbent supplier would be successful in relevant tenders. 11 The allegations are that, in connection with the supply of wire harnesses for the 2006 Toyota Camry, the first respondent, on 30 June 2003, made an arrangement or arrived at an understanding with SEI in contravention of s 45(2)(a) of the Act ("2003 Agreement") and, on 7 July 2003, gave effect to the 2003 Agreement in contravention of s 45(2)(b), with respect to conduct prior to 24 July 2009, and ss 45(2)(b) and 44ZZRK(1) of the Act, with respect to conduct after 24 July 2009. It is alleged that the second respondent also gave effect to the 2003 Agreement in contravention of those provisions on 28 October 2003. 12 There are similar allegations in connection with the supply of wire harnesses for the 2011 Toyota Camry, with the contravening conduct taking place in the first half of 2008 ("2008 Agreement"). 13 There are also allegations of contravening conduct in relation to what is called an Overarching Cartel Agreement from at least the mid-1990s and what is called a 2002 Toyota Camry Minor RFQ Agreement. I do not need to set out the details of these alleged contraventions. 14 The focus of the submissions was on the 2003 Agreement and the 2008 Agreement, and so the contravening conduct is said to have occurred in the second half of 2003 and then the first half of 2008. 15 The applicant has an immunity policy in relation to civil proceedings for cartel conduct, which is described in a document titled "ACCC immunity policy for cartel conduct July 2009" and it has, in addition, issued what it calls "immunity policy interpretation guidelines". Those documents were put before the Court. On 1 July 2010, the applicant granted conditional immunity to SEI and SEWS-A. Under the policy, those companies must provide ongoing full disclosure and cooperation to the applicant for the conditional immunity to remain in place and in order to be eligible for final immunity.

the evidence ON THE APPLICATION 16 Mr Kamencak has responsibility for the management of the South Australian regional office of the applicant and general oversight of the investigation and enforcement activities of the Enforcement Group - South Australia, including the current proceedings on behalf of the applicant. Mr Kamencak was not required for cross-examination. Nevertheless, the respondents submit, correctly in my view, that, because the test is an objective one, it is open to me to find that proceedings were not reasonably anticipated as at 23 November 2010 despite Mr Kamencak's statement to the effect that they were reasonably anticipated. They also submitted, again correctly in my view, that it was open to me to find that the dominant purpose for the creation or preparation of the documents was not for a privileged reason despite Mr Kamencak's statement to the contrary. 17 Mr Kamencak deals with matters at a general level in his first affidavit. He provides more details of his general assertions in his later affidavits. In his first affidavit, Mr Kamencak deposes to the fact that he is satisfied that the applicant reasonably anticipated legal proceedings in this matter on or about 23 November 2010. He reached that state of satisfaction by reason of the following matters. First, as part of an application for conditional immunity, the immunity applicant (identified in his later affidavits as SEI and SEWS-A) had provided information and documents to the applicant in relation to the matters raised in the proceeding and the applicant has reasonably considered that information. Mr Kamencak described the information as "significant and detailed". Secondly, the applicant had received and reasonably considered documents and other information provided to it by the second respondent in response to notices issued under s 155(1)(a) and (b) of the Trade Practices Act 1974 (Cth). Thirdly, the applicant had received and reasonably considered responses to voluntary information requests from industry participants. Fourthly, the applicant had been contacted by representatives of the respondents in relation to the issues in the proceeding. Fifthly, the applicant had engaged external legal representatives. Sixthly, the applicant had obtained a detailed understanding of the evidence that a number of potential witnesses, including witnesses from SEI and SEWS-A, could provide in any legal proceedings commenced in relation to the subject matter of the proceeding. Seventhly, the applicant had received confirmation that a number of the aforesaid potential witnesses were willing to cooperate with the applicant and, if necessary, provide signed statements. Finally, the applicant had formed the view on the basis of advice that it was likely to have jurisdiction under the Act and/or the Competition Codes of the States and Territories in any proceedings brought against the respondents in relation to the subject matter of the proceeding. 18 Mr Kamencak elaborated on each of these matters in his second affidavit. He named the immunity applicant as SEI (and presumably SEWS-A) and he said that it made a request of the applicant to be granted a marker. That request was granted on 21 December 2009. A marker is the first step in the immunity process and it means that the immunity applicant could move to apply for conditional immunity from the applicant without another party jumping ahead of it in the immunity process. 19 On 12 March 2010, a meeting was held between representatives of the applicant and members of Clayton Utz. Clayton Utz are part of a global legal team acting for SEI. That legal team is being coordinated by SEI's overseas lawyers, Latham & Watkins. A second meeting between the same parties was held 14 days later on 26 March 2010. Notes of those two meetings were produced by Mr Kamencak. A claim of confidentiality is made in relation to those notes. A summary in point form of what transpired at those meetings is set out below:

Meeting on 12 March 2010 a meeting was held between Clayton Utz for SEI and representatives of the applicant for the purpose of SEI seeking an extension of the marker granted to it; Clayton Utz provided relevant documents to the applicant; Clayton Utz provided details of SEI's business; Clayton Utz provided details of understandings between SEI and first respondent about supply of wire harnesses to Toyota; Clayton Utz provided explanation of 21 documents. I will not go through the explanation. It is sufficient to say that, if accepted, the documents provide strong evidence of cartel conduct; and the applicant asked for the key witnesses to be made available for interview. SEI's solicitors advised that each individual was separately represented, but was cooperating.

Meeting on 26 March 2010 a meeting was held between SEI's Australian solicitors and the applicant for the purpose of SEI and its Australian subsidiary, SEWS-A, making a formal proffer for immunity from penalties and other remedies "in relation to cartel conduct in the automotive electronic components industry"; SEI's solicitors provided further documents to the applicant; SEI's solicitors provided in significant detail an explanation of the circumstances surrounding the cartel conduct; and there are contemporaneous records of a number of the crucial meetings. The documentary evidence is clearer in relation to the meetings in 2003 than it is in relation to the meetings in 2008. 20 Between 14 April 2010 and 11 June 2010, at least five further meetings were held between the applicant and SEI and, in addition, there was email correspondence. 21 On 1 July 2010, the applicant granted conditional immunity to SEI. 22 On 23 February 2010, the applicant issued a notice to the second respondent pursuant to s 155(1)(a) and (b) of the Trade Practices Act. The second respondent provided its response to the notice in two tranches, the first on 24 March 2010 and the second on 30 April 2010. 23 The applicant communicated with a key industry participant, Toyota Motor Corporation Australia, in about the middle of 2010. There was correspondence from the applicant to Toyota Motor Corporation Australia on 24 June 2010, 25 June 2010, 12 July 2010, and 4 August 2010. Toyota Motor Corporation Australia responded on 30 July 2010 and 13 August 2010. 24 On or about 28 April 2010, the applicant provided preliminary instructions to the Australian Government Solicitor ("AGS") to act for it in this matter and, on 11 October 2010, the applicant formally retained the AGS. 25 On or about 30 September 2010, the applicant informed SEI of the witnesses it sought to interview for the purposes of advancing its investigation based on the information SEI had provided on 12 March 2010 and 26 March 2010. 26 On or about 14 October 2010, in a teleconference between the applicant and members of Clayton Utz, the latter provided a summary of the evidence which key witnesses of SEI and SEWS-A could, and would be willing to, provide in any legal proceedings commenced in relation to the subject matter of this proceeding. Again, a summary in point form of what transpired at this meeting is set out below:

Meeting on 14 October 2010 SEI's solicitors named four important witnesses that SEI would make available for interview by the applicant and gave a fairly detailed summary of the evidence those witnesses would give. Those witnesses were Mr Urata (employee of SEI in Japan), Mr Nagasawa (Australian Managing Director 2001-2008), Mr Shida (employee of SEI in Japan), and Mr Kazahaya (Australian Managing Director after Mr Nagasawa); and the applicant inquired about the availability as witnesses of Mr Shigi and Mr Nagano. Clayton Utz said that they would get back to them about that matter. 27 On 11 October 2010, the applicant sought advice on its jurisdiction under the Act and/or the Competition Codes. On 22 October 2010, SEI advised the applicant that Mr Shigi and Mr Nagano were willing and able to provide evidence for the purposes of any legal proceeding. On 23 November 2010, the applicant received legal advice regarding jurisdiction under the Act and/or Competition Codes in any proceedings brought against the respondents in relation to the subject matter of this proceeding. This is the date on which Mr Kamencak is satisfied that the applicant reasonably anticipated legal proceedings. 28 Mr Kamencak deposes to the fact that, on or about 10 March 2011, the applicant engaged a legal translation and editing firm to provide certified translations of a selection of documents provided by SEI as relevant to the matters in this proceeding. On or about 11 March 2011, SEI provided the applicant with access to advanced draft statements of Mr Shigi and Mr Urata. On or about 30 March 2011, SEI provided to the applicant exhibits to each of the aforesaid draft statements. On or about 24 March 2011, SEI provided to the applicant further documents relevant to the alleged Give Effect of the 2003 Agreement with respect to Australia. On or about 12 April 2011, SEI provided to the applicant further documents relevant to the alleged Give Effect of the 2008 Agreement with respect to Australia. On or about 29 March 2011, the applicant met with a Mr Nobuaki Kazahaya to obtain evidence in relation to a particular aspect of the 2008 Agreement as it concerned Australia. On or about 7 April 2011, SEI provided a detailed summary of the evidence which a Mr Nagasawa could provide and the documents that he may refer to in any evidence to be provided in relation to this proceeding. On or about 13 April 2011, the applicant met with Mr Nagasawa to obtain evidence in relation to a particular aspect of the 2003 Agreement as it concerned Australia.

THE RELEVANT LEGAL PRINCIPLES 29 The first issue raises a question as to the test to be applied to the facts in order to determine when a proceeding is reasonably anticipated and, in particular, whether that point is only reached when a proceeding is more likely than not, or is reached when there is a real prospect of a proceeding. 30 In Mitsubishi Electric Australia Pty Ltd v Victorian WorkCover Authority (2002) 4 VR 332 at 341, [19], Batt JA, after analysing the authorities including Grant v Downs (1976) 135 CLR 674 ("Grant v Downs"), said that litigation will be contemplated where there is a real prospect of proceedings being issued as distinct from a mere possibility. The commencement of litigation does not have to be more likely than not. Callaway JA expressly agreed (at 333, [3]) and Charles JA agreed with the reasons of Batt JA. In this Court, Goldberg J took a different view in Australian Competition and Consumer Commission v Australian Safeway Stores Pty Ltd (1998) 81 FCR 526 ("ACCC v Australian Safeway Stores"). His Honour said (at 559) that proceedings were reasonably anticipated where: … there is a reasonable probability or likelihood that such proceedings will be commenced - not that they will be but rather that more probably than not they will be. 31 The difference between the two tests was discussed by the Full Court of this Court in Visy Industries Holdings Pty Ltd and Others v Australian Competition and Consumer Commission (2007) 161 FCR 122 ("Visy Industries v ACCC"). Weinberg J reviewed the authorities, both in this country and in other common law jurisdictions, and said that as the test of "reasonably anticipated" required such close attention to the facts, the application of the two tests was likely to make a difference in only a handful of cases (130-131, [24]-[34]). Lander J (with whom Moore J agreed) discussed the issue, but, as far as I can see, his Honour did not express a preference for one test over the other (at 140-141, [67]-[70]). 32 In ASIC v Australian Lending Centre (at 306, [23]) Perram J said that the weight of authority favoured the real prospect test over the more likely than not test. Since his Honour considered the matter, it has been considered by a Full Court in Ensham Resources Pty Ltd v AIOI Insurance Company Ltd and Others (2012) 209 FCR 1. That decision is binding on me and it provides that litigation is reasonably anticipated where there is a real prospect of litigation (at 10, [54]-[57] per Lander and Jagot JJ). 33 I agree with Weinberg J that the two tests are likely to produce different results in only a handful of cases. This is not one of them. 34 It is clear that the test of whether litigation is reasonably anticipated is an objective test and requires a consideration of all the facts and circumstances. The question is to be determined at the time the document is produced. The statement of the person claiming privilege that proceedings were reasonably anticipated on and from a certain date is not conclusive (Grant v Downs at 682 and 685 per Stephen, Mason and Murphy JJ). 35 A court may consider a variety of factors to be relevant in deciding when proceedings are reasonably anticipated. Whether relevant witnesses have been interviewed is one factor (Visy Industries v ACCC at 136-137, [61]-[63]; ACCC v Australian Safeway Stores at 545-546 per Goldberg J). Another factor is whether the cooperation of a crucial witness has been secured (Australian Competition and Consumer Commission v Prysmian Cavi E Sistemi Energia S.R.L. (No 2) [2012] FCA 44 at [66] per Lander J). 36 As to the second issue of dominant purpose, once proceedings are found to be reasonably anticipated, it may be relatively easy to draw the conclusion that the dominant purpose for their preparation was for the purpose of the litigation (ASIC v Australian Lending Centre at 308-309, [28]-[33] per Perram J). As Perram J said in that case, where an applicant has both investigatory and enforcement functions, there is no neat and tidy distinction between the end of an investigation and the reasonable anticipation of litigation. 37 Nevertheless, it must be steadily borne in mind that the claim for privilege must be established and this requires "focused and specific" evidence rather than assertions, conclusions, and generalised comments (Barnes and Another v Commissioner of Taxation (Cth) (2007) 242 ALR 601 at 605, [18]-[19] ("Barnes v Commissioner of Taxation")).

RESOLUTION OF ISSUES 38 This is an area where the result is likely to be particularly fact-sensitive. In some cases, the mere occurrence of the event giving rise to the claim will be sufficient to give rise to a reasonable anticipation of litigation: Feuerheerd v London General Omnibus Company, Limited [1918] 2 KB 565; Cataldi v Commissioner for Government Transport [1969] 1 NSWR 561 (see also Grant v Downs at 682-683 per Stephen, Mason and Murphy JJ). In others (as noted above), a clear indication that a critical witness will cooperate will be crucial (Australian Competition and Consumer Commission v Prysmian Cavi E Sistemi Energia S.R.L. (No 2) [2012] FCA 44). 39 The respondents made a number of points in support of its contention that the applicant had not established that proceedings were reasonably anticipated as at 23 November 2010, including that: (1) although it is not clear when the applicant itself interviewed the important witnesses from SEI, it had certainly not done so on or before 23 November 2010; (2) there is a serious jurisdictional issue in this case about the application of the Act to the first respondent's conduct in Japan and nothing to indicate that the applicant had evidence to overcome the potential difficulties on or before 23 November 2010; (3) there was a delay of over two years between the date the applicant claims proceedings were reasonably anticipated and the commencement of proceedings; (4) the applicant continued to "investigate" or "collect evidence" during that period; (5) the applicant has not explained the reasons for the delay; (6) there is no evidence as to when the applicant received advice that it had reasonable grounds to start a proceeding or when it retained counsel; and (7) as late as the second half of 2012, the applicant was utilising its powers of investigation in s 155(1)(a) and (b) of the Act. The applicant issued notices under that subsection to the second respondent on 28 August 2012 and 5 November 2012 respectively. 40 The applicant anticipated that legal proceedings would be brought against the respondents on and from 23 November 2010. In my opinion, having regard to the circumstances of this case, that was a reasonable anticipation or expectation. 41 A crucial consideration in this case is the information provided to the applicant by the other parties (i.e., SEI and SEWS-A) to the alleged unlawful conduct on 12 March 2010, 26 March 2010, and 14 October 2010. That information about the agreements and how they were given effect to was detailed and it identified the particular persons involved in the conduct, not only from the point of view of SEI and SEWS-A, but also from the point of view of the first respondent. The persons who were put forward by SEI and SEWS-A as being able to give relevant evidence were able to give evidence about the 2003 Agreement and the 2008 Agreement. The Australian solicitors for SEI and SEWS-A advised the applicant on 22 October 2010 that two members of senior management from SEI, who were said to be involved, were willing and able to provide evidence for the purposes of any legal proceedings commenced in relation to the subject matter of this proceeding. Critically in terms of the present issue, SEI and SEWS-A, through their Australian solicitors, provided to the applicant at the meetings on 12 March 2010 and 26 March 2010 contemporaneous documents which, on their face and without explanation, provide strong evidence of the 2003 Agreement and the 2008 Agreement. It is true that the position on the documents is stronger in relation to the 2003 Agreement, but, even so, the documents in relation to the 2008 Agreement are significant. 42 The information provided to the applicant by SEI and SEWS-A was provided in a context in which SEI and SEWS-A had been granted conditional immunity (on 1 July 2010) and it was a condition of that immunity that those companies were required to cooperate with the applicant. Furthermore, the applicant had engaged the AGS to act for it in the matter by way of providing preliminary instructions in the matter on 28 April 2010, and it formally retained the AGS on 11 October 2010. 43 The first respondent is a foreign corporation and some of the alleged unlawful conduct occurred in Japan. I was told that there will be an issue at trial as to the jurisdictional reach of the Act and the Competition Code of Victoria. For the purposes of determining when proceedings were reasonably anticipated, whether the applicant's case on this issue is weak or strong is not to the point. On 11 October 2010, the applicant had sought advice from the AGS in relation to the matters in this proceeding and, on 23 November 2010, the applicant had received legal advice regarding "jurisdiction under the Act or the Competition Codes of the States or Territories in any proceedings brought against the respondents in relation to the subject matter of these proceedings". 44 In my opinion, on 23 November 2010, it was more likely than not that proceedings would be commenced. 45 In addition to establishing that legal proceedings were reasonably anticipated on 23 November 2010, the applicant must establish that the documents over which privilege is claimed were created or prepared for the dominant purpose of their use in, or in connection with, the reasonably anticipated proceeding. 46 The applicant relies on the combined effect of three matters in support of its case that a privileged dominant purpose has been made out. First, it relies on the fact that the documents in issue were created or prepared after legal proceedings were reasonably anticipated. Secondly, it relies on the descriptions of the various documents in issue in the supplementary list. By way of example, it submits that a draft witness statement or a signed witness statement is inherently likely to have been prepared for use in, or in connection with, legal proceedings. Thirdly, it relies on Mr Kamencak's sworn statement that he is satisfied that the documents in dispute are "confidential communications created by officers of the ACCC, its legal advisors and/or third parties on or after 23 November 2010, being the day the ACCC reasonably anticipated litigation, for the dominant purpose of being used in, or in relation to, these proceeding and/or to obtain legal advice in relation to these proceeding". 47 For their part, the respondents submitted that the applicant had not discharged the onus of establishing the dominant purpose for the creation or preparation of the documents. They submitted that the applicant had not advanced the focused and specific evidence necessary to ground a claim for legal professional privilege (Barnes v Commissioner of Taxation at 605, [18]-[19]). Furthermore, the applicant had powers of investigation and, although there was no onus on the respondents to prove purpose, it was at least possible that an investigatory purpose was a purpose for the creation or preparation of the documents in issue. They submitted, correctly, that it was not sufficient to sustain a claim of privilege that one of the purposes for the creation or preparation of a document was for use in, or in connection with, anticipated legal proceedings; it must be shown that it was the dominant purpose (ACCC v Australian Safeway Stores at 545-546 per Goldberg J; Rilstone v BP Australia Pty Ltd [2007] FCA 1557 at [16] per Besanko J.) 48 The respondents identified classes of documents where (they submitted) there was at least uncertainty as to the dominant purpose of their creation. Examples are as follows: (1) Documents 49 and 50, which are described as a draft witness statement of a particular person followed by a reference to "(Latham Watkins)" and, for the "Date/period", a date of 29 June 2011; (2) Documents 69, 71, 72, 75, 78, 79, 81, 82, 90, 92, and 94, which are described as a draft witness statement of a particular person followed by a reference to "(with Clayton Utz comments)"; and (3) Documents 99-109, which are all described as "Preliminary translation of document provided by the immunity applicant to the ACCC", with nothing specified for the "Date/period" of those documents. 49 As I have said, Mr Kamencak was not cross-examined. I accept his statement that the documents in issue were created after 23 November 2010. It seems to me that this case is a far cry from a case where, for example, privilege is claimed over a document on the basis that it was obtained for the purposes of seeking legal advice where the topic of that advice is not identified and there is nothing about the description of the document which suggests that it was prepared on a privileged occasion. 50 It seems to me that this case is similar to ASIC v Australian Lending Centre at 308-309, [28]-[32] per Perram J. All of the documents were created or prepared after the date upon which litigation became reasonably anticipated. I have the sworn statement of Mr Kamencak as to the dominant purpose for which the documents were created or prepared and that is supported by the description of the documents. 51 In my opinion, the applicant established that a privileged purpose was the dominant purpose for the creation of the documents in dispute.

conclusion 52 It was for these reasons that I dismissed the respondents' application for production of the documents in dispute. I certify that the preceding fifty-two (52) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Besanko.