Australian Competition & Consumer Commission v FFE Building Services Ltd [2003] FCA 1181

Procedural Posture

Discovery Motion in Civil Proceeding / Interlocutory (motion for Inspection/discovery of Documents and Ruling on Privilege)

Legal Issues

1. 1 ["Whether certain documents in the ACCC's List of Documents are subject to legal professional privilege or without prejudice privilege" 'The application of s 157 of the Trade Practices Act 1974 (Cth) to documents subject to privilege' 'Whether fairness or the statutory scheme requires their production']

Ratio Decidendi

Documents predating the commencement of proceedings (category i) were not subject to legal professional privilege as they were not communications to or from lawyers, nor prepared for the dominant purpose of obtaining legal advice or for use in litigation. Some post-commencement documents and draft witness statements/affidavits (categories ii and iii) were privileged if they comprised communications between lawyers and related to the litigation. Documents generated for settlement negotiations (category iv) were protected by without prejudice privilege. Section 157 of the Trade Practices Act does not abrogate legal professional privilege, but the Court has discretion to order production if...

Court Disposition

Partly in favour of respondents (some documents to be produced, others privileged)

Orders

• ["The documents in the applicant's List of Documents identified in Schedule A are not subject to legal professional privilege." 'The documents in Schedule B are subject to legal professional privilege.' 'The documents in Schedule C are subject to without prejudice privilege.' 'The applicant to produce to each...