Brambles Holdings Ltd v. Trade Practices Commission [1981] FCA 68

IN THE FEDERAL COURT OF AUSTRALIA)

) NEW SOUTH WALES DISTRICT REGISTRY) No. N.S.W. G44 of 1978.

)

GENERAL DIVISION ) BETWEEN: BRAMBLES HOLDINGS LIMITED Applicant AND: TRADE PRACTICES COMMISSION Respondent. 5 June 1981

REASONS FOR JUDGMENT

Franki J.

In this Notice of Motion I gave judgment on 21 May 1981 which I hoped might substantially resolve the problems which

had arisen with regard to discovery. I refer to that

judgment when I said:

"I consider that the most practical course is for me to rule on such of the documents referred to by senior counsel for the applicant as I can without inspection and to leave the parties to consider my judgment before proceeding further. It is possible that any issues remaining undetermined may be agreed by the parties."

I laid down certain tests which were summarized on the

latter half of page 11 when I said:

"Tl am therefore of the opinion that in order to attract legal professional privilege the document must have been

2.

brought into existence for the sole purpose

of submission to the legal adviser either

for obtaining legal advice or for use in

the litigation. Unless the document was brought into existence for the purpose

of putting it before the legal adviser

legal professional privilege does not attach

to it. Whilst neither of the cases I have Mentioned deal specifically with the question of copies I am satisfied that legal professional privilege attaches to a draft or copies of a document which is itself entitled to that privilege, at least if the existence of the draft or copy represents a reasonably necessary stage in the preparation of the document to which privilege attaches."

I also added a qualification in the second last

paragraph on page 18 which is:

"My decision in relation to any document which I have held not to be privileged is subject

to the qualification that any part of any such document which does no more than reproduce legal advice obtained in relation to the proceedings need not be made available for inspection."