Brambles Holdings Ltd v. Trade Practices Commission [1981] FCA 123

The proceedings were commenced before the current Federal Court Rules, S.R. No.140 of 1979, were made and therefore

the relevant rules are those appearing in S.R. No. 20 of 1977.

The effect of 0.2 r.1 of those Rules is that the Rules of the High Court are applicable "subject to any directions of the Court

or a Judge". See also s.38 of the Federal Court of Australia Act

The applicant filed an application on 16 March 1981 seeking orders:

1. That the plaintiff make, file and serve within 14 days an affidavit making further and better discovery;
2. That the claim of the plaintiff to legal professional privilege made by paragraph 3 of the affidavit of Wynne Patricia Hannon, sworn 27 January 1981, is not justified; and
3. That the plaintiff make available for inspection a number of documents which were identified in the Notice of Motion and for which the plaintiff has claimed legal professional

No formal Notice for Discovery had been given pursuant to 0.32 r.9 of the High Court Rules but it was agreed that I should treat this application as if the Commission had been served with a Notice for Discovery and it had sought to comply

with obligations then falling upon a party so served.

The first Affidavit of Discovery filed on behalf of the Commission was that of Glen Catherine Smith, sworn on 15 January 1980. The schedule to this affidavit listed a number of documents

of various types and claims were made for privilege. A further

and much more detailed Affidavit of Discovery was sworn on 27 January 1981 by Wynne Patricia Hannon and this affidavit referred to 31 volumes of documents and claimed privilege in respect of certain documents. The documents referred to in the affidavit were described in an exhibit to the affidavit which comprised 537 pages ("the Schedule"). The exhibit contained a list of documents in the first four volumes of documents referred to in the affidavit and described in it as "Documentary material of the plaintiff and its solicitors". Various documents in the schedule were marked to show that privilege was claimed for them. However, senior counsel for the Commission said that it was not seeking to maintain privilege in regard to documents of a date prior to 5 April 1978 which was the date when the Commission decided to commence the proceedings. Senior counsel made it clear that he was not conceding that privilege did not extend to documents prior to that date but was simply not seeking to

The day before the motion was commenced a further affidavit sworn on that day by Mr. Graham Walker setting out the grounds upon which privilege was claimed was filed on behalf of the Commission. After two days hearing the matter was adjourned, and a few days before the hearing was resumed a telex was sent by the Commission to the applicant setting out the text of a further affidavit to be sworn by Miss Hannon. When the matter resumed before me on 8 May 1981 the further affidavit of Miss Hannon was

filed in Court. It is fair to say that it is not possible to

reconcile the precise grounds upon which privilege is claimed in the four affidavits and in the telex. Counsel for the applicant asked me to hold that the claim for privilege had not been established because of the inconsistencies arising out of the affidavits. I appreciate that in a case involving discovery of the magnitude of that involved in this case it is extremely difficult to prepare an affidavit which is beyond criticism, without that affidavit being of an almost impractical length and complexity. In saying this I do not wish it to be thought that I am suggesting that litigants can expect the Court to read affidavits of discovery with particular sympathy but in this case I think the course which I propose to take is the appropriate

The applicant asked that Mr. Walker be cross-examined on his affidavit. Counsel could not refer me to any case where cross-examination of the deponent to an affidavit of discovery had been allowed and I refused to permit the cross-examination of Mr. Walker. I consider that Mulley v. Manifold (1959), 103

C.L.R. 341 at p.343 is sufficient authority for this decision.

Counsel for the applicant relied mainly on 0.32 r.12, r.13 and r.18 of the High Court Rules. However, the applicant no longer seeks any further affidavit but merely seeks inspection of

those documents for which privilege has not been established.

At the conclusion of argument I indicated that I was not prepared to hold that no claim for privilege had been established, but that I considered that the most practical course was to deal with a number of those documents referred to in the schedule to Miss Hannon's first affidavit which had been specifically dealt with by senior counsel for the applicant. I said that I proposed to examine the description of each document under consideration set out in the schedule and then decide whether from its description it appeared that it fell within any of the grounds referred to in the second affidavit of Miss Hannon

In a particular case, I appreciated that it might be necessary to inspect a document before I could rule on whether the claim for privilege was made out. "Z consider that the most practical course is for me to rule 'on such of the documents referred to by senior counsel for the applicant as I can without inspection and to leave the parties to consider my judgment before proceeding further. It is possible that any issues

remaining undetermined may be agreed by the parties.

Whilst still pressing his application that I should rule on the affidavits that no satisfactory claim for privilege had been shown, counsel for the applicant agreed that if I was not

prepared to do this the course I proposed was reasonably suitable

Senior counsel for the applicant submitted a document classifying certain of the documents for which privilege was claimed into 11 categories and he dealt with the description of those documents in the annexure to Miss Hannon's first affidavit. It is not necessary to consider categories 3, 10 and 11 because, prior to the resumed hearing privilege was either not claimed or

The grounds of privilege from the production of documents for which privilege is claimed were set out in the

"(i) prepared by the Plaintiff's legal advisers for use by them in these proceedings; or

(ii) brought into existence by the Plaintiff for the sole purpose of submission to its legal advisers for advice or for use by them in connection with these proceedings; or

(iii) brought into existence at the request of the Plaintiff's legal advisers solely to enable the Plaintiff's legal advisers to advise the Plaintiff or to conduct these proceedings on its behalf; or

(iv) communications passing between the Plaintiff and third parties after the institution of these proceedings at the request or suggestion of the Plaintiff's legal advisers relating to these -proceedings; or

(v) internal memoranda of the Plaintiff prepared after the institution of these proceedings relating to advice or information obtained or to be obtained from or for the Plaintiff's legal advisers in relation to these proceedings; or

(vi) communications between the legal representatives of the parties or notes of discussions between the parties or their legal representatives which communications and discussions were

(vii) confidential communications between the Plaintiff and its legal advisers made to or by the legal adviser, with a view to obtaining or giving legal advice or assistance, or notes of these confidential communications."

I note that only grounds (ii) and (iii) refer to the

Although I have been referred to a number of authorities which I have carefully considered, I take the view that the two recent decisions of the High Court in Grant v. Downs (1976) 135

C.L.R. 674 and National Employers' Mutual General Insurance

Association Ltd v. Waind (1979) 141 C.L.R. 648 set out the

In the application before me the claim which was pressed to justify non discovery of the relevant documents was that of

In Waind's case the judgment of Mason J., with whom Barwick C.J., Stephen, Jacobs and Aicken JJ. agreed, contained the following passages at pp.654 and 656 which make it clear that

the intended use of documents in litigation is insufficient to

attract legal professional privilege but that this privilege attaches to communications passing between the legal adviser and

"Two preliminary comments should be made about the way in which the case for the appellant was presented. First, the argument at times seemed to suggest that it is the intended use of documents in litigation which attracts the relevant privilege. This of course is not so. The relevant head of privilege is legal professional privilege which attaches to communications passing between legal adviser and client. Documents submitted by the client to his solicitors for advice or for use in anticipated litigation attract the privilege, but it is very doubtful whether there is a privilege for documents coming into existence as materials for the purposes of an action to be conducted by a litigant in erson (see Jones v. Great Central Railway Co./1910} A.c. 4; In re Holloway (1887) 12 P.D. 167; Wheeler v. Le Marchant (1881) 17 Ch. D. 675 at p.681; Kyshe v. Holt, Childs and Brotherton [isss| W.N. 128: Anderson v. Bank of British Columbia (1876) 2 Ch. D. 644 at pp.658-659; Halsbury's Laws of England, 4th ed., vol.13, p.68). Of course it may be that privilege can be claimed on the ground that a document relates solely to the case of the party, a head of privilege still available in New South Wales. Secondly, the argument did not always make clear the distinction between the purpose for which information is obtained and the purpose for which a document recording information is brought into existence."

"If, on the facts, the documents are brought into existence for the dual purpose of deciding what it will do and for use in litigation by legal advisers when appropriate, the purpose should be considered as one purpose which, including as it does submission to legal advisers, would attract the relevant head of privilege. That is the argument. Unfortunately for the appellant, it is an argument which runs headlong into Grant v.

' Downs (1976) 135 C.L.R. 674. As Glass J.A. ' observed in the Court of Appeal [1978] 1

N.S.W.L.R., at p. 376, when he applied™ the 1 remarks of Stephen, Mason and Murphy JJ. in Grant v. Downs:

'If the purpose which actuates the party who commissions documents is not single but multiple each must be identified. Unless all of them fall within the protected group of purposes namely submission to legal advisers or use in litigation, no privilege attaches.'

The argument is not only inconsistent with the sole purpose test enunciated by Stephen, Mason and Murphy Jd. (1976) 135 C.L.R. at p.688; it is also inconsistent with the dominant purpose test favoured by Barwick C.J. (1976) 135 c.L.R. at p.678 and in my view it fails to satisfy the test proposed by Jacobs J. (1976) 135 C.L-R. at p. 692 - Does the purpose of

supplying the materials to the legal adviser account for its existence?"

The following passage from the judgment of Barwick C.J. at p.657 also illustrates the importance of the purpose of

"However useful these documents might prove in any supervening litigation, they were not in any sense proofs of witnesses or statements prepared for submission to legal advisers."

"I agree with the reasons given by my brother Mason for this conclusion.

The judgment of Stephen, Mason and Murphy JJ. makes it clear that to attract legal professional privilege it is necessary that the sole purpose for bringing the relevant document into existence was its submission to legal advisers for obtaining legal advice or for use in litigation".

I read this passage as stating that legal professional privilege is not attracted unless the sole purpose for bringing the relevant document into existence was its submission to legal advisers (a) for obtaining legal advice or (b) for use in

In Grant v. Downs (supra) Barwick C.J., who dissented, nevertheless took the view at p.678 that the document under consideration must have been produced for the solicitor in relation to proceedings pending, threatened or anticipated, i.e.

Stephen, Mason and Murphy JJ. in a joint judgment said

"What then are the relevant principles of law governing the privilege which attaches to communications and materials submitted by a client to his solicitor for the purpose of advice or for the purpose of use in existing or anticipated litigation, in particular when the materials have been called into existence to serve more than one purpose, submission to the solicitor being only one of the purposes?"

It is to be noted that this passage refers to "communications and materials submitted by a client to his

"It is not right that the privilege can attach to documents which, quite apart from the purpose of submission to a solicitor, would have been brought into existence for other purposes in any event, and then without attracting any attendant privilege."

"I think that the question which the court should pose to itself is this - does the purpose of supplying the material to the legal

adviser account for the existence of the material? I use the word purpose here in the sense of intention - the intended use."

Again it is to be noted that the reference is to the

I am therefore of the opinion that in order to attract legal professional privilege the document must have been brought into existence for the sole purpose of submission to the legal adviser either for obtaining legal advice or for use in the litigation. Unless the document was brought into existence for the purpose of putting it before the legal adviser legal professional privilege does not attach to it. Whilst neither of the cases I have mentioned deal specifically with the question of copies I am satisfied that legal professional privilege attaches to a draft or copies of a document which is itself entitled to that privilege, at least if the existence of the draft or copy represents a reasonably necessary stage in the preparation of the

The first category of documents dealt with by the applicant was that under the general heading of "File notes, internal memoranda or papers". The first of those was that dated 17 October 1978. The description in the schedule is "File Note of telephone conversation between Ms G. Smith, a member of the staff assisting the plaintiff and Mr N. Stock concerning contact

The only claim for privilege relevant to the document of 17 October 1978 is that in paragraph (v) of Miss Hannon's second affidavit. There is no suggestion that the document was prepared solely for submission to legal advisers. I reject the

The next document in this category is that of 25 May 1979. The description of it in the schedule is "Internal briefing paper of the plaintiff entitled 'T.P.C. v. T.N.T. (Management) Pty. Ltd and Others, Outline of Industry and Effect of Arrangement'". The only claim for privilege relevant to this document appears to be that in paragraph (v) of Miss Hannon's second affidavit which does not allege any sole purpose. Ground (v) is not limited to an internal memorandum merely setting out legal advice which has been obtained and which would be the subject of legal professional privilege if it was a record of a communication of advice from a legal adviser in the litigation. Ground (v) in its terms is applicable to an internal memorandum

setting out legal advice together with comment on that advice by

other persons in the Commission . In such a case that part of the memorandum which set out the legal advice would be privileged but not that part which set out the comment on the advice. I agree with the unreported views in this regard of Rath J. in

Komacha v. Orange City Council delivered on 30 August 1979. It

may be that the parties can agree in the light of this statement whether all or only part of the document should be produced for

The next document referred to by the applicant is that dated 25 January 1980 and described in the schedule as "Internal memorandum of the Plaintiff concerning progress in this matter". That also does not appear to fall within any valid ground of privilege claimed. It is not solely for submission to legal advisers nor does it appear to record legal advice and so it is

The next document is that of 10 March 1980 which appears

The next document is that of 28 April 1980 described in the schedule as "File note of telephone conversation between Ms. E. Barton, a member of the staff assisting the plaintiff and Mr. McGrillen, a member of staff of the Public Transport Commission

of New South Wales concerning the seventhnamed defendant." This document falls into the same category as the file note of 17

The next document is that of 21 July 1980 described as "Internal briefing memorandum of the plaintiff concerning settlement of this matter". If the parties cannot agree with respect to this document it will be necessary for me to inspect

The next document is that of August 1980 described as "Internal Working Paper of the plaintiff entitled 'Specific Competition Evidence Needed'". Privilege is not established for this document except for any part which records legal advice

The next document is that of 2 September 1980 described in the schedule as "Internal memorandum of the plaintiff concerning witnesses in this matter". This document does not appear to have been solely prepared for submission to legal advisers and therefore no claim for privilege is established

except for any part which records legal advice received.

The next category of documents is entitled "Internal briefing paper". This document is described in the schedule as: "Internal briefing paper of the plaintiff entitled 'Effect on Competition of Exclusion of Brokers from National Freight

Forwarding Industry'". Also, apparently included in this

category, are three undated documents described as follows? "Broadsheet being a chronology of the evidence relating to this matter "; "Broadsheet detailing evidence of 'giving effect" to the alleged arrangements by the defendants "; "Broadsheet being

analysis of the pleadings and the evidence in this matter."

The date of these documents is not established as being after 5 April 1978, nor does it appear that any of them were prepared for the sole purpose of submission to legal advisers and

The documents in category 4, being letters from the

Minister, are no longer the subject of a claim for privilege.

The next category of documents is headed "Record of discussion within Commission". The first document in this category is dated 1 May 1978 and is described in the schedule as: "Record of discussion between a Commissioner and members of staff

assisting the plaintiff concerning competition matters".

This appears to be in the category of a record of a discussion and appears to be an internal document which is not claimed to have been prepared solely for submission to legal

The next document in this category is that dated 13 July

1978 which is described in the schedule as: "Record of

discussion between a Commissioner and members of staff assisting the plaintiff concerning competition aspects of° this matter".

The next category of documents is entitled "Records of interviews re Freight Arrangements and Tradestock". The first is dated 18 July 1978 and is described in the schedule as "Record of interview between Mr J. O'Neill and Ms G. Smith, members of staff assisting the plaintiff and Mr T. Henderson, T.F. Henderson &

Associates, concerning the freight forwarding industry".

This document appears to have been brought into existence for internal purposes and not solely for submission to

The next documents are both of 7 August 1978 and described in the schedule as: "Record of interview between Ms. G. Smith, a member of staff assisting the plaintiff, and Mr. Coull, Hardy Spicer, concerning freight arrangements and Tradestock Pty Ltd" and "Record of interview between Ms. G. Smith, a member of staff assisting the plaintiff, and Mr Daws, Mindrill, concerning freight arrangements and Tradestock Pty. Ltd.". Again neither of these documents appear to have been prepared solely for the

purpose of submission to solicitors and neither is privileged.

The next document is dated 4 October 1979 and is described in the schedule as "Statement of Mr. T. Henderson on matters relating to the Freight Forwarding Industry". From its description this document does not appear to be any more than a statement from a Mr. Henderson and it does not appear to have been brought into existence for the sole purpose of submission to

The next category of documents is entitled "Minutes of Commission". The first document in this category is that of 28 April 1978 which is entitled "Minutes of Commission Meeting of the plaintif£"". These minutes appear to be no more than of a meeting of the Commission and they do not appear to have been prepared solely for the purpose of presentation to legal advisers nor as a record of legal advice received. They are not

The next category of documents is entitled "Letters written by or to the plaintiff or to or by various named persons". Those written by a Mr. Haymen on 6 February 1979 and to him on 14 February 1979 were discussed. These letters are described in the schedule as: "Letter of Mr. J. Haymen, Tomasetti & Son Pty. Ltde enclosing copies of correspondence concerning freight arrangements and Tradestock Pty. Ltd." and "Letter of the plaintiff to Mr. J. Hayman, Tomasetti & Son Pty- Ltde concerning

The next category of documents is entitled "Copies of correspondence enclosed with letter plaintiff to Haymen". The letter referred to appears to be that of 6 February 1979 to which I have just referred. No claim for privilege has been established in respect of any of the correspondence enclosed with

My decision in relation to any document which I have held not to be privileged is subject to the qualification that any part of any such document which does no more than reproduce legal advice obtained in relation to the proceedings need not be

I propose to adjourn the matter to a date which I will

I certify that this and the | "1 preceding pages are a true copy of the Reasons for Judgment herein of his Honour

) NEW SOUTH WALES DISTRICT REGISTRY) No. N.S.W. G44 of 1978.

GENERAL DIVISION ) BETWEEN: BRAMBLES HOLDINGS LIMITED Applicant ' "AND: TRADE PRACTICES COMMISSION Respondent.

In this Notice of Motion I gave judgment on 21 May 1981 which I hoped might substantially resolve the problems which had arisen with regard to discovery. I refer to that

"I consider that the most practical course is for me to rule on such of the documents referred to by senior counsel for the applicant as I can without inspection and to leave the parties to consider my judgment before proceeding further. It is possible that any issues remaining undetermined may be agreed by the parties."

I laid down certain tests which were summarized on the

"I am therefore of the opinion that in order to attract legal professional privilege the document must have been

the litigation. Unless the document was brought into existence for the purpose

to it. Whilst neither of the cases I have mentioned deal specifically with the question of copies I am satisfied that legal professional privilege attaches to a draft or copies of a document which is itself entitled to that privilege, at least if the existence of the draft or copy represents a reasonably necessary stage in the preparation of the document to which privilege attaches."

"My decision in relation to any document which I have held not to be privileged is subject

to the qualification that any part of any such document which does no more than reproduce legal advice obtained in relation to the proceedings need not be made available for inspection."

The effect of my judgment, so far as it relates to the documents under consideration in it, was that documents which did not fall within category (ii) or (ii1) set out in the second affidavit of Miss Hannon and reproduced at page 6 of my judgment were not privileged. It had not been necessary for me to consider documents falling within category (vi) of that affidavit but the applicant does not seek inspection

As a result of further argument since my judgment was delivered it is necessary to deal with the position in relation to documents about which I made no specific findings

The applicant seeks that I rule on each other document by doing no more than relying upon the description of that document in Miss Hannon's second affidavit, together with any necessary inspection which I may be requested to make

The respondent argues that the basis of my ruling in relation to each document in category (ii) or (iii) of Miss Hannon's second affidavit requires consideration of the sole purpose for which that document was brought into existence and that neither the description in the affidavit nor any other description of it would be sufficient to establish that

I consider that the only practical way to deal with this problem is to order that Miss Hannon file and serve a further affidavit on or before 5pm. on 11 June 1981, listing each document for which privilege is still claimed by the respondent and stating within which of the categories (ii)

The documents which will need to be covered in the affidavit are those in the schedule tendered today by senior counsel for the applicant and marked Exhibit "A", and for

which privilege is still claimed by the respondent.

I hope that once this affidavit is filed and served there may be no problems of discovery still remaining. It is my present intention, if necessary, to make an order for inspection of each document for which privilege is claimed

and which the applicant still seeks to inspect and which is

not established to be within category (ii) or (iii) or (vi) of the categories in the second affidavit of Miss

It will also be necessary for Miss Hannon to specify in her affidavit any document for which privilege is claimed for any part on the ground that that part does no more than reproduce legal advice obtained in relation to the proceedings, and any order of mine would exclude any such part for which

I propose to stand the matter over to 9.30am on 25 June 1981 and reserve the question of costs. If in the meantime, apart from the question of costs, the question of inspection is no longer an issue, the parties might be kind enough to send a letter to the District Registrar to that effect and there will then be no need for anybody to attend on the date fixed. I reserve the question of costs and give liberty to either party to apply on 3 days notice

I certify that this and the 3 preceding pages are a true copy of the Reasons for Judgment herein of his Honour

NEW SOUTH WALES DISTRICT REGISTRY) NO. G.44 of 1978 ) GENERAL DIVISION )

This matter has taken a rather unusual course but, as I said before, I thought it was the most appropriate course for it to take. I gave some reasons for judgment on 21 May 1981, and on that occasion J set out certain principles that I consider were applicable and ruled on a number of documents. One document If said I would need to inspect before I ruled on it, and that is referred to on page 14 of the judgment of 21 May 1981, but senior counsel for the applicant does not press for the inspection of

The orders which TI made on 5 June 1981 concerning a further affidavit have been complied with, and Miss Wynne Patricia Hannon has filed a further affidavit of 11 June 1981.

In that she has sought to classify various documents, in respect

of which inspection is sought and in respect of which privilege is still claimed, first into category (ii) of the categories which she set out in her affidavit of 8 May 1981, secondly into category (iii) of that affidavit and thirdly into category (vi). There is a further category being certain documents which are saic to contain certain legal advice which would not be discoverable pursuant to my earlier ruling insofar as concerns

the very part of each document which records the legal advice.

This affidavit of 11 June 1981 describes the various documents that it classifies in precisely the same words as were used to classify those documents in Miss Hannon's affidavit of 27 January 1981, and for that reason I do not think that it is desirable or appropriate to have over much regard to the particular description of the documents. A vast number of documents were described in the affidavit of 27 January 1981. As

I mentioned previously that affidavit was of 537 pages.

Now there are one or two documents as described in that affidavit of 27 January 1981 which might be thought not to have been produced under circumstances that fall within category (ii) or (iii) (if they be the relevant categories) in the affidavit of Miss FPannon of 8 May 1981. I take as examples a document of 28 February 1979 which is described as a file note and a document undated except as to May 1980 described as an internal memorandum of the plaintiff. But Miss Hannon has said in paragraph 3 of her

"In the three days preceding the swearing of this affidavit I have looked at each document listed in exhibits """Y" and "Z" to this affidavit and have investigated the circumstances in which each document is correctly placed in the right factual category of the categories referred to in the preceding paragraph of this affidavit."

I said on 21 May 1981 that I would not permit cross- examination of Mr Walker who furnished an earlier affidavit and I consider, broadly speaking, that an affidavit of discovery should be taken as being accurate unless there is some reason for the

Now I am speaking fairly broadly in the way I have phrased that. I have been referred to the cases of Birmingham

and Midland Motor Omnibus Company Limited v. London North Western

Railway Company (1913) 3 K.B. 850, Grant v. Downs (1976) 135

C.L.R. 674 and Waugh v. British Railways Board [1980[ A.C. 521,

but I do not think there is anything in any of those cases which is contrary to the view I have expressed, and I do not consider that there is anything in the material before me which would warrant my Geclining to accept the statement of Miss Hannon in

T cent. *e that this andthe 2 pre eding . ages are a true copy of the Reasons for Judgment herein of his Honour !