Jarra Creek Central Packing Shed Pty Ltd v Amcor Limited [2008] FCA 554

Jarra Creek Central Packing Shed Pty Ltd v Amcor Limited [2008] FCA 554

Privilege will attach to copy documents provided to solicitors from a third party (here, the ACCC) where the copies were made in response to a solicitor's request for the dominant purpose of providing legal advice or anticipated litigation, and where the request was complied with unconditionally and there is no evidence of any other purpose. The solicitor's purpose is controlling when the third party makes the copies simply in response to the solicitor's direction.

Jurisdiction
Australia
Judgment Date
24 April 2008
Procedural Posture
Civil / Interlocutory Application (discovery/privilege) Determination
Outcome
Mixed orders—applicant to pay costs of certain respondents on privilege issue; regime for third party confidentiality; leave granted to issue subpoena; further discovery not ordered at this stage; s 155 notices to be discovered.
Legal Topics
['legal Professional Privilege' 'implied Undertaking' 'discovery' 'subpoenas' 'confidentiality' 'trade Practices Act']
['practice and Procedure' 'evidence' 'competition Law'] ['legal Professional Privilege' 'implied Undertaking' 'discovery' 'subpoenas' 'confidentiality' 'trade Practices Act']

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Procedural Posture

Civil / Interlocutory Application (discovery/privilege) Determination

Legal Issues

  1. 1 ['Whether copy documents provided by a third party (the ACCC) at the request of a solicitor are privileged' 'Whether an implied undertaking applies to proofs and discovered documents from other proceedings' 'Appropriate process to protect confidentiality and third party interests in discovered documents' 'Whether leave to subpoena ACCC should be granted' 'Scope of further discovery and discoverability of s 155 notices']

Ratio Decidendi

Privilege will attach to copy documents provided to solicitors from a third party (here, the ACCC) where the copies were made in response to a solicitor's request for the dominant purpose of providing legal advice or anticipated litigation, and where the request was complied with unconditionally and there is no evidence of any other purpose. The solicitor's purpose is controlling when the third party makes the copies simply in response to the solicitor's direction.

Court Disposition

Mixed orders—applicant to pay costs of certain respondents on privilege issue; regime for third party confidentiality; leave granted to issue subpoena; further discovery not ordered at this stage; s 155 notices to be discovered.

Orders

  • ['The parties are to agree (or submit competing proposals) on Short Minutes of Order giving effect to these reasons.' 'Applicant to pay costs of the fourth to sixth respondents in relation to the issue concerning privilege of copy documents.' 'Other costs reserved.' 'The ACCC is to provide to the applicant a list of...