Brambles Holdings Ltd v. Trade Practices Commission [1981] FCA 123

Brambles Holdings Ltd v. Trade Practices Commission [1981] FCA 123

The respondent could not justify legal professional privilege merely by describing documents as internal memoranda, file notes, records of interviews, minutes, letters, or internal working papers, unless the documents were brought into existence solely for submission to legal advisers for advice or litigation use, were created at the request of legal advisers for that purpose, were without prejudice communications, or contained parts reproducing legal advice. Many identified documents were therefore not privileged, subject to withholding any part that did no more than reproduce legal advice. After the respondent filed the further affidavit ordered by the Court, the Court accepted Miss...

Jurisdiction
Australia
Judgment Date
21 May 1981
Procedural Posture
Interlocutory Discovery Application in Trade Practices Act Proceedings / Notice of Motion Concerning Claims of Legal Professional Privilege Over Discovered Documents
Outcome
The application was dealt with by rulings on privilege, an order for a further affidavit, and acceptance of the further affidavit; many identified documents were held not privileged subject to parts reproducing legal advice, while the question of costs was reserved and not determined.
Legal Topics
['discovery' 'legal Professional Privilege' 'inspection of Documents' 'affidavit of Discovery']
['civil Procedure' 'evidence' 'competition and Consumer Law'] ['discovery' 'legal Professional Privilege' 'inspection of Documents' 'affidavit of Discovery']

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Procedural Posture

Interlocutory Discovery Application in Trade Practices Act Proceedings / Notice of Motion Concerning Claims of Legal Professional Privilege Over Discovered Documents

Legal Issues

  1. 1 ["Whether the respondent's claims of legal professional privilege over categories of discovered documents were established." 'Whether the applicant should be permitted to cross-examine a deponent to an affidavit of discovery.' 'Whether documents not brought into existence solely for submission to legal advisers for advice or litigation use were protected by legal professional privilege.' 'Whether parts of documents reproducing legal advice could be withheld from inspection.']

Ratio Decidendi

The respondent could not justify legal professional privilege merely by describing documents as internal memoranda, file notes, records of interviews, minutes, letters, or internal working papers, unless the documents were brought into existence solely for submission to legal advisers for advice or litigation use, were created at the request of legal advisers for that purpose, were without prejudice communications, or contained parts reproducing legal advice. Many identified documents were therefore not privileged, subject to withholding any part that did no more than reproduce legal advice. After the respondent filed the further affidavit ordered by the Court, the Court accepted Miss...

Court Disposition

The application was dealt with by rulings on privilege, an order for a further affidavit, and acceptance of the further affidavit; many identified documents were held not privileged subject to parts reproducing legal advice, while the question of costs was reserved and not determined.

Orders

  • ['Cross-examination of Mr Walker on his affidavit was refused.' 'The respondent was ordered on 5 June 1981 to file and serve a further affidavit by Miss Hannon on or before 5pm on 11 June 1981 listing each document for which privilege was still claimed and stating whether it was alleged to fall within category (ii),...