Visy Industries Holdings Pty Limited v Australian Competition and Consumer Commission

• Jurisdiction: Australia Federal only
• Judgment Date: 12 September 2007
• Neutral Citation: [2007] FCAFC 147
• Court: Full Federal Court (Australia)

FEDERAL COURT OF AUSTRALIA

Visy Industries Holdings Pty Limited v Australian Competition and Consumer Commission [2007] FCAFC 147

PRACTICE AND PROCEDURE – application for leave to appeal from an interlocutory decision of a judge of the Court to the Full Court – discovery – legal professional privilege – whether litigation was reasonably anticipated by the ACCC on 15 December 2004 – whether ACCC could only reasonably anticipate litigation when the Commissioners had resolved to commence legal proceedings – whether the dominant purpose of the creation of the documents was for use in litigation as distinct from investigation – whether documents relating to the grant by the ACCC of immunity and/or leniency to Amcor were discoverable or only relevant as to credit – whether the primary judge erred in refusing the applicants’ request to cross-examine Mr Williams – application for leave to appeal dismissed.

Federal Court of Australia Act 1976 (Cth) ss 24(1A), 25

Judiciary Act 1903 (Cth) s 55ZF

Trade Practices Act 1974 (Cth) Part IV, ss 18, 19, 25, 26

Federal Court of Australia Rules 1979 (Cth) O 13 r 3 and r 4, O 15 r 2(3), O 33 r 12, O 52 r 2AA

Adam P Brown Male Fashions Pty Ltd v Philip Morris Inc (1981) 148 CLR 170cited

Adler v Australian Securities and Investment Commission (2003) 179 FLR 1cited

Alfred Crompton Amusement Machines Ltd v Customs and Excise Commissioners (No 2) [1972] 2 QB 102 cited

Australian Competition and Consumer Commission v Australian Safeway Stores Pty Ltd (1998) 81 FCR 526considered

Australian Competition and Consumer Commission v Leahy Petroleum Pty Ltd [2007] FCA 794distinguished

Australian Competition and Consumer Commission v Liquorland (Australia) Pty Ltd [2005] FCA 503cited

Australian Securities and Investment Commission v Rich (2005) 53 ACSR 320cited

Australian Competition and Consumer Commission v Visy Industries Holdings Pty Ltd (No 2) [2007] FCA 444 affirmed

Barnes v Commissioner of Taxation [2007] FCAFC 88 cited

Capar v Commissioner of Police (1994) 34 NSWLR 715 cited

Collins v London General Omnibus Company (1893) 68 LT 831 cited

Compagnie Financiere et Commerciale du Pacifique v Peruvian Guano Co (1882) 11 QBD 55cited

Décor Corp Pty Ltd v Dart Industries Inc (1991) 33 FCR 397cited

Fried v National Australia Bank Ltd (2000) 175 ALR 194 cited

Goldsmith v Sandilands (2002) 190 ALR 370distinguished

Grant v Downs (1976) 135 CLR 674cited

Harrison v Attorney-General (1989) 4 PRNZ 122 cited

In re the Will of F B Gilbert (Deceased) (1946) 46 SR (NSW) 318cited

Jarman v Lambert & Cooke Contractors LD [1951] 2 KB 937 cited

Jones v Dunkel (1959) 101 CLR 298discussed

Laurenson v Wellington City Corporation [1927] NZLR 510 cited

Mitsubishi Electric Australia Pty Ltd v Victoria WorkCover Authority (2002) 4 VR 332considered

Microsoft Corporation v Ben Zhong Fan [2003] FCA 1026cited

Mully v Manifold (1959) 103 CLR 341cited

National Crime Authority v S (1991) 29 FCR 203 cited

Palmer v The Queen (1998) 193 CLR 1distinguished

Pratt Holdings Pty Ltd v Commissioner of Taxation (2004) 136 FCR 357 cited

Reading Entertainment Australia Pty Ltd v Birch Carroll & Coyle Ltd [2002] FCAFC 109followed

Singapore Airlines v Sydney Airports Corporation [2004] NSWSC 380cited

United States of America v Philip Morris Inc [2004] EWCA Civ 330 cited

Bray on the Principles and Practice of Discovery (1885)

Hunter, C Cameron and T Henning, Litigation I: Civil Procedure (7^th ed, LexisNexis Butterworths, 2005)

VISY INDUSTRIES HOLDINGS PTY LTD (ACN 005 787 968), VISY INDUSTRIES AUSTRALIA PTY LTD (ACN 004 337 615), VISY BOARD PTY LIMITED (ACN 005 787 913), RICHARD PRATT AND HARRY DEBNEY v AUSTRALIAN COMPETITION AND CONSUMER COMMISSION

VID 273 OF 2007

MOORE, WEINBERG AND LANDER JJ

12 SEPTEMBER 2007

MELBOURNE

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY	VID 273 OF 2007

ON APPEAL FROM A SINGLE JUDGE OF THE FEDERAL COURT OF AUSTRALIA

BETWEEN:	VISY INDUSTRIES HOLDINGS PTY LTD (ACN 005 787 968) First Applicant VISY INDUSTRIES AUSTRALIA PTY LTD (ACN 004 337 625) Second Applicant VISY BOARD PTY LIMITED (ACN 005 787 913) Third Applicant RICHARD PRATT Fourth Applicant HARRY DEBNEY Fifth Applicant
AND:	AUSTRALIAN COMPETITION AND CONSUMER COMMISSION Respondent

JUDGES:	MOORE, WEINBERG AND LANDER JJ
DATE OF ORDER:	31 JULY 2007
WHERE MADE:	MELBOURNE

THE COURT ORDERS THAT:

1. The application be dismissed.

2. The applicants pay the respondent’s costs.

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY	VID 273 OF 2007

ON APPEAL FROM A SINGLE JUDGE OF THE FEDERAL COURT OF AUSTRALIA

BETWEEN:	VISY INDUSTRIES HOLDINGS PTY LTD (ACN 005 787 968) First Applicant VISY INDUSTRIES AUSTRALIA PTY LTD (ACN 004 337 625) Second Applicant VISY BOARD PTY LIMITED (ACN 005 787 913) Third Applicant RICHARD PRATT Fourth Applicant HARRY DEBNEY Fifth Applicant
AND:	AUSTRALIAN COMPETITION AND CONSUMER COMMISSION Respondent

JUDGES:	MOORE, WEINBERG AND LANDER JJ
DATE:	12 SEPTEMBER 2007
PLACE:	MELBOURNE

REASONS FOR JUDGMENT

MOORE J

1 The reasons of Lander J are, in substance, also the reasons why I joined in the orders made on 31 July 2007.

I certify that the preceding one (1) numbered paragraph is a true copy of the Reasons for Judgment herein of the Honourable Justice Moore.

Associate:

Dated: 12 September 2007

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY	VID 273 OF 2007

ON APPEAL FROM A SINGLE JUDGE OF THE FEDERAL COURT OF AUSTRALIA

BETWEEN:	VISY INDUSTRIES HOLDINGS PTY LTD (ACN 005 787 968) First Applicant VISY INDUSTRIES AUSTRALIA PTY LTD (ACN 004 337 625) Second Applicant VISY BOARD PTY LIMITED (ACN 005 787 913) Third Applicant RICHARD PRATT Fourth Applicant HARRY DEBNEY Fifth Applicant
AND:	AUSTRALIAN COMPETITION AND CONSUMER COMMISSION Respondent

JUDGES:	MOORE, WEINBERG AND LANDER JJ
DATE:	12 SEPTEMBER 2007
PLACE:	MELBOURNE

WEINBERG J

2 At the conclusion of argument on 31 July 2007 the Court, by majority, refused the Visy parties leave to appeal. I indicated then that I differed from my brethren as to the disposition of this application. I stated that I had not formed a concluded view as to whether leave to appeal should be granted or refused. I added, however, that if leave to appeal were to be granted, such leave would be confined to a relatively small aspect of the Visy parties’ case, namely whether a decision on the part of the primary judge to uphold a claim for legal professional privilege made by the Australian Competition and Consumer Commission (“ACCC”) in relation to four documents should be set aside.

3 The documents in question were described by Robert Alexander, General Counsel of the ACCC, in his affidavit as “category A” documents. He said that they had been created between 17 June 2005 and 21 October 2005. He characterised the basis upon which legal professional privilege was claimed as follows:

The documents in category A contain confidential communications to me from legal representatives of proposed witnesses. The dominant purpose of my communications with those persons was to obtain information for use in, or in relation to, this proceeding, and to use that information to obtain legal advice in relation to this proceeding.

4 The individual description provided for each of the four documents was set out in a Schedule to Mr Alexander’s affidavit. The relevant extracts were as follows:

Main Date	Document Type	Basis of Privilege
17-Jun-2005	Email	Confidential communication between solicitor for witness and the ACCC for the purpose of the ACCC obtaining legal advice and for use in the proceeding
22-Jul-2005 (Estimated)	Memorandum	Confidential communication between solicitor for third party and the ACCC General Counsel for the purpose of the ACCC obtaining legal advice for use in the proceeding
22-Sep-2005 (Estimated)	Memorandum	Confidential communication between solicitor for witness and ACCC in response to request for information made by the ACCC for the purpose of the ACCC obtaining legal advice and for use in the proceeding
21-Oct-2005	Email	Confidential communication between solicitor for witness and the ACCC General Counsel for the purpose of the ACCC obtaining legal advice and for use in the proceeding

5 The primary question that concerned me was whether the ACCC, as the party making a claim of legal professional privilege, had provided the Visy parties with sufficient facts to enable them to determine whether or not to challenge that claim. It is trite law that the onus of establishing such facts rests upon the party propounding the claim.

6 In National Crime Authority v S (1991) 29 FCR 203 Lockhart J, with whom Keely and Heerey JJ generally agreed, set out the relevant principles as follows (at 211):

It is for the party asserting or claiming legal professional privilege to establish the facts giving rise to it: see Grant v Downs, per Stephen, Mason and Murphy JJ (at 689). It was for S to do more than merely assert a claim for privilege which in substance is all that he did. He exposed no facts from which the Authority would have been able to make an informed decision as to whether the claim for privilege was supportable.

Affidavits of documents in the discovery process not infrequently claim legal professional privilege by asserting that the purpose for which a document was brought into being was its sole purpose, followed by a statement as to which particular category of legal professional privilege the document belongs; for example, for use in existing or anticipated litigation. Although an affidavit in this form is usually sufficient and uncontroversial the potential for abuse is obvious. Courts should not be slow to permit cross-examination of the deponent of...