On 3 February 2012, the Federal Court of Australia handed down its decision with respect to ACCC’s claim for legal professional privilege on documents sought under a notice to produce. The respondents challenged the claim made in respect of certain third party correspondence (i.e. other than correspondence between ACCC and AGC – that is, between ACCC/AGS and the solicitors for the immunity applicant/staff that were separately represented) that pre-dated the commencement of proceedings. The Court considered:
- The earliest date at which litigation was reasonably anticipated. On applying an objective test it held that the ACCC did not reasonably anticipate litigation until after the interview of the staff member of the immunity applicant that was involved in the cartel, thus being assured of his cooperation and delivery of information. Therefore, all documents before the date of the interview were not protected by privilege.
- For documents created after that date, they were created for the dominant purpose of use in or advice as to litigation.
- There had not been any waiver of privilege other than in respect of the draft statement of the witness, which had been substantially disclosed in the affidavit.
An interesting submission was made in relation to the dominant purpose question that could also be of interest to corporate counsel – the respondents argued that documents might have been created for the purpose of considering JPS’ claim for immunity/its ongoing immunity. However, the Court concluded that as there was no evidence to suggest that JPS’ immunity was a live issue at that time, the claim for dominant purpose of litigation was made out. This suggests that where there is evidence put before the Court that immunity is a live issue (whether because of the extent of cooperation required etc), it may be possible to still challenge claims for privilege after this time.
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