Australian Competition & Consumer Commission v FFE Building Services Limited [2003] FCA 1294

Australian Competition & Consumer Commission v FFE Building Services Limited [2003] FCA 1294

Documents 48, 52, 53, 55 and 122 were privileged because they were post-commencement communications from a party's solicitors about witness evidence, made for the purpose of being put before ACCC's solicitor to enable prosecution of the litigation. Documents 78, 79, 80, 83, 84, 85, 86, 96, 97 and 99 were not privileged because they were pre-commencement draft witness statements provided to ACCC to assist it under the leniency agreement and to facilitate later, more developed statements, not brought into existence for use on Tyco's behalf.

Jurisdiction
Australia
Judgment Date
13 November 2003
Procedural Posture
Federal Court Proceeding Concerning Production of Discovered Documents and Legal Professional Privilege / Variation of Orders Made on 27 October 2003 After Further Submissions
Outcome
Orders made on 27 October 2003 varied.
Legal Topics
['legal Professional Privilege' 'production of Discovered Documents' 'draft Witness Statements' 'leniency Agreement' 'variation of Orders']
['evidence' 'civil Procedure' 'competition and Consumer Law'] ['legal Professional Privilege' 'production of Discovered Documents' 'draft Witness Statements' 'leniency Agreement' 'variation of Orders']

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Procedural Posture

Federal Court Proceeding Concerning Production of Discovered Documents and Legal Professional Privilege / Variation of Orders Made on 27 October 2003 After Further Submissions

Legal Issues

  1. 1 ['Whether documents 48, 52, 53, 55 and 122 were subject to legal professional privilege after correction of a factual error that they were communications from Phillips Fox to ACCC after the proceeding commenced.' 'Whether documents 78, 79, 80, 83, 84, 85, 86, 96, 97 and 99 were subject to legal professional privilege when they were draft witness statements sent before the proceeding commenced.' "Whether production of documents 78, 79, 80, 83, 84, 85, 86, 96, 97 and 99 should be refused on the ground that production would infringe Tyco's legal professional privilege."]

Ratio Decidendi

Documents 48, 52, 53, 55 and 122 were privileged because they were post-commencement communications from a party's solicitors about witness evidence, made for the purpose of being put before ACCC's solicitor to enable prosecution of the litigation. Documents 78, 79, 80, 83, 84, 85, 86, 96, 97 and 99 were not privileged because they were pre-commencement draft witness statements provided to ACCC to assist it under the leniency agreement and to facilitate later, more developed statements, not brought into existence for use on Tyco's behalf.

Court Disposition

Orders made on 27 October 2003 varied.

Orders

  • ['The orders made on 27 October 2003 be varied by transferring documents 48, 52, 53, 55 and 122 from Schedule A to category (ii) of Schedule B.' 'The orders made on 27 October 2003 be varied by excluding from category (iii) of Schedule B documents 78, 79, 80, 83, 84, 85, 86, 96, 97 and 99 and adding these documents...