Candacal Pty Ltd v Industry Research & Development Board

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".