Seven Network Limited v News Limited [2005] FCAFC 125

Seven Network Limited v News Limited [2005] FCAFC 125

Order 33 r 11 of the Federal Court Rules did not apply to the pre-trial inspection of the ACCC file note produced under subpoena and did not extend the Evidence Act 1995 (Cth) client legal privilege regime to that stage. The applicants did not contend that the file note attracted common law legal professional privilege, and the communication to the ACCC was a non-privileged disclosure recorded by an ACCC officer. The masked portion was therefore not protected from inspection, so leave was granted but the appeal was dismissed.

Jurisdiction
Australia
Judgment Date
07 July 2005
Procedural Posture
Appeal From Interlocutory Judgment Concerning Subpoena Production and Legal Professional Privilege / Application for Leave to Appeal and Appeal Heard Together
Outcome
Leave to appeal granted; appeal dismissed with costs.
Legal Topics
['client Legal Privilege' 'subpoena Production' 'pre Trial Inspection of Documents' 'federal Court Rules O 33 R 11' 'evidence Act 1995 (cth) Part 3.10 Division 1']
['evidence' 'civil Procedure' 'legal Professional Privilege'] ['client Legal Privilege' 'subpoena Production' 'pre Trial Inspection of Documents' 'federal Court Rules O 33 R 11' 'evidence Act 1995 (cth) Part 3.10 Division 1']

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Procedural Posture

Appeal From Interlocutory Judgment Concerning Subpoena Production and Legal Professional Privilege / Application for Leave to Appeal and Appeal Heard Together

Legal Issues

  1. 1 ['Whether leave to appeal should be granted from the interlocutory judgment dated 30 June 2005.' 'Whether O 33 r 11 of the Federal Court Rules extends the operation of Part 3.10 Division 1 of the Evidence Act 1995 (Cth) to pre-trial production or inspection of documents produced under subpoena.' 'Whether the Court is prevented by O 33 r 11 from compelling pre-trial production of a document that could not be adduced in evidence at trial because of client legal privilege.' "Whether the ACCC file note, or the masked portion recording a summary of counsel's advice communicated at a meeting with the ACCC, was protected by legal professional privilege at common law."]

Ratio Decidendi

Order 33 r 11 of the Federal Court Rules did not apply to the pre-trial inspection of the ACCC file note produced under subpoena and did not extend the Evidence Act 1995 (Cth) client legal privilege regime to that stage. The applicants did not contend that the file note attracted common law legal professional privilege, and the communication to the ACCC was a non-privileged disclosure recorded by an ACCC officer. The masked portion was therefore not protected from inspection, so leave was granted but the appeal was dismissed.

Court Disposition

Leave to appeal granted; appeal dismissed with costs.

Orders

  • ['The applicants be granted leave to appeal from the interlocutory judgment dated 30 June 2005.' 'The appeal be dismissed.' "The applicants/appellants pay the respondents' costs of the motion for leave and the appeal."]