Two recent decisions of the Full Federal Court and the NSW Supreme Court have displaced the long-held presumption that final witness statements are protected by legal professional privilege. The witness statements in question were witness statements that had been served on a party, though were not ultimately relied upon at trial. These cases suggest that it may now be far easier to obtain final witness statements that have been served in related proceedings.
In ACCC v Cadbury Schewppes Pty Ltd [2009] FCAFC 32, the Full Federal Court allowed Cadbury to discover witness statements in the hands of Visy, that had been prepared and served by the ACCC in related proceedings. The Court held that:
- the witness statements were not privileged, because they did not fulfil the confidentiality element of privilege;
- where a document is created for the purpose of disclosure to an opponent, the document will not be held to be confidential; and
- “draft” versions of witness statements may be privileged, if they are not intended to be disclosed to opponent.
This approach was followed in Buzzle Operations Pty Ltd (in liq) v Apple Computer Australia Pty Ltd [2009] NSWSC 225, in which White J of the NSW Supreme Court held that affidavits and witness statements served in separate proceedings were not protected by the litigation privilege provision of the Evidence Act 1995 (NSW). Again, the sticking point in this case was confidentiality. White J applied the reasoning in ACCC v Cadbury, although the relevant witness statements in this case were in the hands of the party who prepared them.
In summary, it seems that final witness statements, which have been served but not adduced at trial, will not be protected by privilege:
- under either the common law or the uniform Evidence Acts; and
- whether in the hands of the party who prepared the statements, or in the hands of the party who was served with the statements.
