Australian Competition and Consumer Commission v NSW Ports Operations Hold Co Pty Ltd

• Jurisdiction: Australia Federal only
• Judgment Date: 27 August 2020
• Neutral Citation: [2020] FCA 1232
• Court: Federal Court
• Date: 27 August 2020

FEDERAL COURT OF AUSTRALIA

Australian Competition and Consumer Commission v NSW Ports Operations Hold Co Pty Ltd [2020] FCA 1232

File number:	NSD 2289 of 2018
Judgment of:	WIGNEY J
Date of judgment:	27 August 2020
Catchwords:	PRIVILEGE – interlocutory application challenging claim for legal professional privilege – advice privilege – litigation privilege – without prejudice privilege – communications and documents involving in-house lawyers – affidavits inadequate to sustain claims of privilege – appropriate for court to inspect communications and documents – dominant purpose test – whether documents the subject of legal professional privilege
Legislation:	Competition and Consumer Act 2010 (Cth) ss 45, 45(1)(b), 45(2)(a)(ii), 155 Evidence Act 1995 (Cth) s 75
Cases cited:	Archer Capital 4A Pty Ltd as trustee for Archer Capital Trust 4A v Sage Group plc (No 2) [2013] FCA 1098; 306 ALR 384 Austotel Management Pty Ltd v Jamieson (1995) 57 FCR 411 Australian Securities and Investments Commission v Australian Lending Centre Pty Ltd (No 2) [2011] FCA 1057; 283 ALR 299 AWB Limited v Honourable Terence Rhoderic Hudson Cole (No 5) (2006) 155 FCR 30 AWB Ltd v Cole (2006) 152 FCR 382 Bailey v Beagle Management Pty Ltd [2001] FCA 185 Balabel v Air India (1988) Ch 317 Barnes v Commissioner of Taxation [2007] FCAFC 88; 242 ALR 601 Barnetson v Framlington Group Ltd [2007] 1 WLR 2443 Bradford & Bingley plc v Rashid [2006] 1 WLR 2066 Commissioner of Taxation v Pratt Holdings Pty Ltd [2003] FCA 6; 195 ALR 717 Daniels Corporation International Pty Ltd v Australian Competition and Consumer Commission (2002) 213 CLR 543 District Council of Mallala v Livestock Markets Ltd (2006) 94 SASR 258 Dowling v Ultraceuticals Pty Ltd (2016) 93 NSWLR 155 DSE (Holdings) Pty Ltd v InterTAN Inc (2003) 135 FCR 151 Ensham Resources Pty Ltd v AIOI Insurance Company Ltd (2012) 209 FCR 1 Esso Australia Resources Ltd v Federal Commissioner of Taxation (1999) 201 CLR 49 Federal Commissioner of Taxation v Spotless Services Ltd (1996) 186 CLR 404 Field v Commissioner for Railways for New South Wales (1957) 99 CLR 285 Gardner v Irvis (1878) 4 Exch 49 Grant v Downs (1976) 135 CLR 674 Hancock v Rinehart (Privilege) [2016] NSWSC 12 J-Corp Pty Ltd v Australian Builders Labourers Federated Union of Workers (1992) 38 FCR 452 Kennedy v Wallace (2004) 142 FCR 185 Mann v Carnell (1999) 201 CLR 1 McKenzie v Cash Converters International Ltd [2017] FCA 1564 Mercantile Mutual Custodians Pty Ltd v Village/Nine Network Restaurants & Bars Pty Ltd [2001] 1 Qd R 276 Mitsubishi Electric Australia Pty Ltd v Victorian Workcover Authority (2002) 4 VR 332 National Crime Authority v S (1991) 29 FCR 203 Pratt Holdings Pty Limited v Commissioner of Taxation (2004) 136 FCR 357 Public Transport Authority of Western Australia v Leighton Contractors Pty Ltd (2007) 34 WAR 279 Ritz Hotel Ltd v Charles of the Ritz Ltd (No 22) (1988) 14 NSWLR 132 Rush and Tompkins Ltd v Greater London Council [1989] 1 AC 1280 Seven Network Limited v News Limited [2005] FCA 142 Southern Equities Corporation Ltd v West Australian Government Holdings Ltd (1993) 10 WAR 1 State of New South Wales v Jackson [2007] NSWCA 279 Sydney Airports Corporation Ltd v Singapore Airlines Ltd [2005] NSWCA 47 Trade Practices Commission v Sterling [1979] FCA 33; 36 FLR 244 Waterford v The Commonwealth (1978) 163 CLR 54 Westgold Resources NL v St Barbara Mines Ltd [2007] WASC 47 Westminster Airways Ltd v Kuwait Oil Co Ltd [1951] KB 134 Woollahra Municipal Council v Westpac Banking Corporation (1994) 33 NSWLR 529 Yokogawa Australia Pty Ltd v Alstrom Power Ltd [2009] SASC 377; 262 ALR 738
Division:	General Division
Registry:	New South Wales
National Practice Area:	Commercial and Corporations
Sub-area	Economic Regulator, Competition and Access
Number of paragraphs:	290
Date of hearing:	1 April 2020
Counsel for the Applicant:	Mr R Yezerski
Solicitor for the Applicant:	Australian Government Solicitor
Counsel for the First, Second and Third Respondents / Cross-Claimants:	Dr R Higgins SC with Mr B Lim
Solicitor for the First, Second and Third Respondents / Cross-Claimants:	Gilbert + Tobin
Counsel for the First, Second and Third Cross-Respondents:	Mr B Hancock
Solicitor for the First, Second and Third Cross-Respondents:	Allens
Solicitor for the Fourth Cross-Respondent:	MinterEllison

ORDERS

		NSD 2289 of 2018
BETWEEN:	AUSTRALIAN COMPETITION AND CONSUMER COMMISSION Applicant
AND:	NSW PORTS OPERATIONS HOLD CO PTY LTD; ACN 163 262 351 First Respondent / Cross-Claimant ; PORT BOTANY OPERATIONS PTY LTD; ACN 161 204 342 Second Respondent / Cross-Claimant ; PORT KEMBLA OPERATIONS PTY LTD; ACN 161 246 582 Third Respondent / Cross-Claimant ; STATE OF NEW SOUTH WALES Fourth Respondent
AND:	PORT OF NEWCASTLE OPERATIONS PTY LIMITED; ACN 165 332 990 First Cross-Respondent ; PORT OF NEWCASTLE INVESTMENTS (PROPERTY) PTY LIMITED; ACN 169 286 024 Second Cross-Respondent ; PORT OF NEWCASTLE INVESTMENTS PTY LIMITED; ACN 169 132 441 Third Cross-Respondent ; STATE OF NEW SOUTH WALES Fourth Cross-Respondent

JUDGE:	WIGNEY J
DATE OF ORDER:	27 August 2020

THE COURT ORDERS THAT:

1. The parties are to confer and provide the Court with draft orders, within 14 days of the date of this judgment, which are agreed and which:

   1. give effect to the findings that have been made in this judgment concerning the first, second and third cross-respondents legal professional privilege claims; and

   2. deal with the costs of this application.

2. If the parties are unable to reach agreement in accordance with order 1, they are to provide the Court, within 14 days of the date of this judgment, with written submissions, not exceeding five pages in length, which annex their proposed orders, address the issues of disagreement concerning the orders and indicate whether a further oral hearing is required to determine the appropriate orders.

Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

WIGNEY J:

1. This matter concerns contested claims of legal professional privilege in respect of documents which, but for that claim, would be required to be produced pursuant to a subpoena issued in proceedings concerning the privatisation of ports in New South Wales.

2. In December 2018, the Australian Competition and Consumer Commission commenced proceedings against NSW Ports Operations Hold Co Pty Limited and two of its subsidiaries (collectively referred to in these reasons as the NSW Ports parties). In those...