Australian Competition and Consumer Commission v Prysmian Cavi E Sistemi Energia S.R.L. (No 2) [2012] FCA 44

Australian Competition and Consumer Commission v Prysmian Cavi E Sistemi Energia S.R.L. (No 2) [2012] FCA 44

Privilege for third-party communications under litigation privilege does not arise until litigation is reasonably anticipated, which objectively was not until the applicant interviewed Mr Osada in September 2009 and obtained his cooperation. Documents created before that event are not privileged. For documents created after that time, the ACCC established that they were for the dominant purpose of the proceeding, save for a draft statement from Mr Osada, for which privilege was waived by substantial disclosure in affidavit evidence.

Jurisdiction
Australia
Judgment Date
03 February 2012
Procedural Posture
Application / Interlocutory Application to Inspect Documents and Determine Claims for Legal Professional Privilege
Outcome
Application allowed in part; privilege upheld in part
Legal Topics
['legal Professional Privilege' 'litigation Privilege' 'waiver of Privilege' 'production and Inspection of Documents']
['practice and Procedure' 'evidence'] ['legal Professional Privilege' 'litigation Privilege' 'waiver of Privilege' 'production and Inspection of Documents']

Case Brief

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Procedural Posture

Application / Interlocutory Application to Inspect Documents and Determine Claims for Legal Professional Privilege

Legal Issues

  1. 1 ['Whether documents comprising third party communications are protected by litigation privilege.' 'When litigation was reasonably anticipated for the purpose of privilege.' 'Whether documents were created for the dominant purpose of anticipated litigation.' 'Whether legal professional privilege was waived for certain documents.']

Ratio Decidendi

Privilege for third-party communications under litigation privilege does not arise until litigation is reasonably anticipated, which objectively was not until the applicant interviewed Mr Osada in September 2009 and obtained his cooperation. Documents created before that event are not privileged. For documents created after that time, the ACCC established that they were for the dominant purpose of the proceeding, save for a draft statement from Mr Osada, for which privilege was waived by substantial disclosure in affidavit evidence.

Court Disposition

Application allowed in part; privilege upheld in part

Orders

  • ['Within seven days the second respondent bring in short minutes of order reflecting these reasons.']