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." The effect of my judgment, so far as it relates to the documents under consideration in it, was that documents which did not fall within category (ii) or (ii1) set out in the second affidavit of Miss Hannon and reproduced at page 6 of my judgment were not privileged. It had not been necessary for me to consider documents falling within category (vi) of that affidavit but the applicant does not seek inspection of any documents falling within that category. As a result of further argument since my judgment was delivered it is necessary to deal with the position in relation to documents about which I made no specific findings in that judgment. we The applicant seeks that I rule on each other document by doing no more than relying upon the description of that document in Miss Hannon's second affidavit, together with any necessary inspection which I may be requested to make and which I might feel to be justified. The respondent argues that the basis of my ruling in relation to each document in category (ii) or (1ii) of Miss Hannon's second affidavit requires consideration of the sole purpose for which that document was brought into existence and that neither the description in the affidavit nor any other description of it would be sufficient to establish that purpose. I consider that the only practical way to deal with this problem is to order that Miss Hannon file and serve a further affidavit on or before 5pm. on 11 June 1981, listing each document for which privilege is still claimed by the respondent and stating within which of the categories (i1) or {i11) or (vi) that document is alleged to fall. The documents which will need to be covered in the affidavit are those in the schedule tendered today by senior counsel for the applicant and marked Exhibit "A", and for which privilege is still claimed by the respondent. I hope that once this affidavit is filed and served there may be no problems of discovery still remaining. It is my present intention, 1f necessary, to make an order for inspection of each document for which privilege is claimed and which the applicant still seeks to inspect and which 1s not established to be within category (11) or (iii) or (v1) of the categories in the second affidavit of Miss Hannon. It will also be necessary for Miss Hannon to specify in her affidavit any document for which privilege is claimed for any part on the ground that that part does no more than reproduce legal advice obtained in relation to the proceedings, and any order of mine would exclude any such part for which that privilege were established. I propose to stand the matter over to 9.30am on 25 June 1981 and reserve the question of costs. If in the meantime, apart from the question of costs, the question of inspection 1s no longer an issue, the parties might be kind enough to send a letter to the District Registrar to that effect and there will then be no need for anybody to attend on the date fixed. I reserve the question of costs and give liberty to either party to apply on 3 days notice to the other party. | I certify that this and the 3 preceding pages are a true copy of the | Reasons for Judgment herein of his Honour | Mr. Justice FRAN Ix | Reluger fae Assoc ; Dated: DO TUNE (991 |