REASONS FOR JUDGMENT
ALLSOP J
21 I have had the advantage of reading in draft the reasons for judgment of Branson J. I agree with them and with the orders that her Honour proposes.
22 The applicants sue the respondents and others in respect of conduct that is said to amount to contraventions of the Trade Practices Act 1974 (Cth). The substantive complaints of the applicants concerned the activity of the respondents in respect of bidding for rights to broadcast on television different codes of football, AFL and Rugby League. A pay television channel owned or run by the applicants, or one or more of them ("C 7") had, at that time of the impugned conduct of the respondents, the AFL rights. It lost those rights to rivals after the negotiations the subject of complaint.
23 The applicants, by detailed written and oral submissions, sought to persuade the Australian Competition and Consumer Commission (the "ACCC") to take legal action against, or at least commence an investigation into the bidding of, the respondents, or some of them. The ACCC declined to take that course. Thereafter, the applicants brought proceedings themselves. Those proceedings are due to commence in this Court on Monday, 18 July 2005 and are expected to take up considerable hearing time.
24 As part of what might be called the lobbying of the ACCC, a meeting was held on 12 December 2000. In attendance were three senior executives of two of the applicant companies, two partners of the solicitors then (and now) acting for the applicants and two officers of the ACCC. There can be no doubt that at the meeting the applicants, in particular through Mr Gray and Mr Gammell, one of the solicitors and one of the applicants' officers, respectively, sought to convince the ACCC of the anti-competitive nature of what the notes of the meeting described as "the joint bid for AFL broadcasting rights by News Ltd, the Nine Network, Telstra and the Ten Network".
25 The first point made by Mr Gray at the meeting was to convey to the ACCC officers a summary of relevant legal advice of counsel said to have been received by one of the applicants in respect of the bidding process for the AFL broadcast rights.
26 A subpoena to the ACCC was issued calling for, amongst other documents, the ACCC's file note of the meeting. The file note of the meeting contains a record of Mr Gray's summary of counsel's advice. The respondents sought production of, and access to, the whole of the note. The applicants resisted that course claiming that the part of the note recording what Mr Gray said about counsel's advice was subject to (their) legal professional privilege.
27 The primary judge (not the proposed trial judge) rejected that claim. Leave to appeal has been sought. The question of leave has been argued together with the substance of the appeal. The arguments, reduced to their essentials, raised the following questions.
28 First, does Order 33 rule 11 govern the question of production of the document under subpoena in these circumstances, that is before the commencement of the trial?
29 Secondly, if it does, is production of the document not compellable under Order 33 rule 11 on grounds of privilege, by reference to Part 3.10 of the Evidence Act 1995 (Cth) (the "Act")?
30 Thirdly, if it does not, is production or inspection of the document prevented by the common law?
31 In my view, the answers to these questions are: no, does not arise and no. My reasons are as follows.
32 The Act makes a clear distinction in relation to legal professional privilege between the adducing of evidence (to which the Act applies) and the earlier stages of the trial and litigation process to which it does not. It is evident that this was a deliberate choice of the Law Reform Commission. There is no need to recite the judicial attempts to harmonise or integrate the two regimes. Since Esso Australia Resources v Commissioner of Taxation (2001) 201 CLR 49, it is clear that the two regimes - that of the common law of Australia, and the Act and equivalent legislation in New South Wales, Victoria and the Australian Capital Territory - are distinct in their operation, albeit underpinned by the same dominant purpose test.
33 Orders 33 and 34 of the Federal Court Rules were amended in 2002 (Federal Court Amendment Rules 2002 (No. 1)) in a manner conformable with recommendations made by the Australian Law Reform Commission: Report 38, Appendix A p 267. These changes were introduced to bring relevant aspects of the Rules into conformity with the operation of the Act. It was not an attempt by the exercise of the rule making power to have all questions of production at any stage of the litigation process brought under a regime governed in accordance with the Act. That may or may not be a sensible course; the rule making power may or may not extend that far: cf. Esso Australia Resources v Commissioner of Taxation (1998) 83 FCR 511 at 527, 568 and 572. Order 33 rule 11 is in a part of the Rules dealing with evidence. Subrule (3) identifies the circumstances where subrule (1) applies. It refers in the last clause to 'whether on a trial or hearing or any other occasion'. This reference is, however, to occasions for the taking of evidence. Rule 11 seeks to make clear that at the occasion of the trial or hearing or other reception of evidence the production of documents under subpoena will be governed by theAct. Such a course ensures that during the process of the trial or hearing or other reception of evidence there will not be two regimes under which to analyse privilege: that is, the Act at, but only at, the immediate point of adducing evidence, and the common law at the point of answering a call or subpoena. This is not to neuter the provision, as Mr Sheahan SC, who appeared on behalf of the applicants, submitted; rather, it is to make for a more coherent and simplified hearing process.
34 The inapplicability of the Act makes the second question unnecessary to answer. It was, however, argued, and, in those circumstances and in case the above construction of Order 33 rule 11 be found to be wrong, I propose to express my view that the answer is, no.
35 The primary contention of the applicants was that the production and disclosure of the document (or the adducing of evidence of the document), being secondary evidence in summary form of the advice of counsel, would result (contrary to s118 or s119 of the Act) in disclosure of the confidential communication made between the client and a lawyer (the original advice) for the dominant purpose either as found in s 118 or in s 119 of the Act. The above contention rested for its correctness upon the communication to the ACCC being a "confidential communication" as defined in s 117 of the Act. The primary judge concluded that it was not a confidential communication. In my view, his Honour was correct. There was undoubtedly a policy of the ACCC to treat information given to it by informants or under compulsory process with a degree of confidence. Mr Gray was aware of that policy. No doubt, an argument would be mounted based on public law notions of legitimate expectations and, perhaps, procedural fairness, that warning should be given before any departure from that policy. That is not to say, however, that as between these parties on 12 December 2000 it could be said that the ACCC was obliged not to disclose the contents of the communications made to if by Mr Gray and others. No doubt, the applicants hoped that their urging of the ACCC would result in steps being taken contrary to the interests, legal and commercial, of the respondents. It was hoped that the rival bid or the bidding process would be impeded or interrupted. That, it is apparent, was the idea. In those circumstances, it must have been plain that it was at the very least possible, if not likely, that should the ACCC succumb to the persuasion of the applicants it may have to justify, publicly, its course of action, and, thus, to the extent that the advice that the applicants had received from counsel, as put to the ACCC by Mr Gray, was part of those reasons, it may have to be disclosed. Mr Gray told the ACCC of counsel's advice in order to persuade the ACCC to act upon it as a relevant consideration. In those circumstances, it can hardly be said that the ACCC was obliged not to disclose the communication made to it by Mr Gray on behalf of the applicants. Naturally, the ACCC was not free to communicate the information otherwise than for the purposes of carrying out its functions. Nevertheless, if it decided to act, one of the things that it needed to be in a position to do was justify its course of action. Mr Gray thought the advice of counsel was sufficiently important to raise, and to raise as the first matter at the meeting. As such, it can be taken as a matter, which, the parties must be taken to have appreciated, might have to be disclosed in any explanation as to why public funds were being expended at the instigation and urging of a substantial commercial organisation. This is not a matter of subjective appreciation, but one of the objective analysis of the uncontroversial facts.
36 I should add that there was no suggestion that anything that was said at the meeting of 12 December 2000 by Mr Gray was accidental, unintended or without instructions.
37 As to the third question, the occasion of the meeting was not privileged. The applicants decided to communicate the substance of a privileged communication to the ACCC. As between the applicants and the ACCC there was a non-privileged disclosure. A note was made by an ACCC officer. The making of such a note was no doubt something which was foreseeable and foreseen. The ACCC was being asked to act on the communication. The note was a record of a non-privileged communication made with the consent of the parties at the meeting. The note is simply not privileged.
38 Whether or not the limited disclosure to the ACCC on a non-privileged occasion works any wider waiver, such as to the original advice of counsel (cf Goldberg v Ng (1995)185 CLR 83) is not an issue before us. The only issue is whether the record of a non-privileged communication made by the recipient of that communication can be treated as privileged because of the existence of antecedent privilege in one part of the subject matter of the communication. In my view it is not. Mr Gray told the ACCC of the substance of counsel's advice. That communication was not privileged. A record of that non-privileged communication was made. That record was and is not privileged. It should be produced.
39 The decision of Lehane J in GEC Marconi Systems Pty Ltd v BHP Information Technology Pty Ltd [2000] FCA 593 does not lead to the conclusion that the document here is privileged. Lehane J dealt with the matter before him (being a communication within a group and otherwise attracting common interest privilege) on the basis of Mann v Carnell (2001) 201 CLR 1. That case concerned the question whether there was a loss of the privilege in relation to an original advice by it being shown to a third party, Mr Moore. If, however, the reasons of Lehane J can be taken as support for the contention that a note by a third party of a non-privileged disclosure of legal advice is subject to a derived or derivative privilege of the