IN _THE FEDERAL COURT OF AUSTRALTA QUEENSLAND DISTRICT REGISTRY GENERAL DIVISION BETWEEN : JUDGMENT No. umnccecht GS... TRADE PRACTICES COMMISSION Applicant NASHCO PTY LIMITED First Respondent GARGEVA PTY LIMITED Second Respondent JOSEPH PATRICK NASH Third Respondent NEVILLE FRANCIS McCOSH Fourth Respondent RONALD JOHN JAMES DAVIS Fifth Respondent No. Qld G 53 of 1984 ' =e ORDER JUDGE MAKING ORDER Neaves J. DATE OF ORDER 10 October 1984 WHERE MADE Brisbane THE COURT ORDERS THAT: 1. The application by the second and fourth respondents be dismissed. 2. The second and fourth respondents pay the applicant's costs of the application. IN THE FEDERAL COURT OF AUSTRALIA QUEENSLAND DISTRICT REGISTRY GENERAL DIVISION BETWEEN : CORAM: Neaves Jd. DATE: 10 OCTOBER 1984 ) ) ) No. Qld G 53 of 1984 ) ) TRADE PRACTICES COMMISSION Applicant NASHCO PTY LIMITED First Respondent GARGEVA PITY LIMITED Second Respondent JOSEPH PATRICK NASH Third Respondent NEVILLE FRANCIS McCOSH Fourth Respondent RONALD JOHN JAMES DAVIS Fifth Respondent REASONS FOR JUDGMENT Neaves J. A proceeding is pending in this Court at the suit of the Trade Practices Commission ("the Commission") against Nashco Pty. Limited ("the first respondent"), Gargeva Pty. =e Limited ("the second respondent"), Joseph Patrick Nash ("the third respondent"), Neville Francis McCosh ("the fourth respondent") and Ronald John James Davis ("the fifth respondent") for pecuniary penalties and injunctive relief in respect of certain alleged contraventions of paragraph 45(2)(a) of the Trade Practices Act 1974 ("the Act"). The statement of claim filed on behalf of the Commission alleges that each of the first, second and fifth respondents at all material times carried on business as a petrol retailer at Bundaberg, Queensland, those businesses being respectively carried on under the business names "Shell Speedy Service Station", "Ampol Canelanders Service Station" and "Bundaberg Star Service Station". It is further alleged that on or about 17 February 1983 the first respondent by its servant or agent the third respondent, the second respondent by its servant or agent the fourth respondent, and the fifth respondent made an arrangement or arrived at an understanding between themselves and other petrol retailers at Bundaberg whereby the minimum retail price of super-grade petrol supplied, or to be supplied, at Bundaberg by the parties to the arrangement or understanding would be fixed or maintained at a particular level. The material provisions of that arrangement or understanding, so it is alleged, had a purpose, or had or were likely to have an effect, falling within sub-section 45A(1) of the Act. The third respondent, being a director of the first respondent, and the fourth respondent, a director of the second respondent, are alleged to have been directly or 3. indirectly knowingly concerned in, or a party to, the conduct of the first and gecond respondents respectively. A defence has not been filed on behalf of the first or third respondents. The second and fourth respondents have filed a defence by which those respondents either do not admit or deny the allegations of fact contained in the statement of claim other than those relating to the jurisdiction of the Court, the status of the Commission, the carrying on of business by the second respondent and the status of the fourth respondent. The fifth respondent has not filed a defence and has informed the Court that he does not wish to defend the proceeding, that he acknowledges the correctness of the allegations of fact made against him and that, in engaging in the conduct alleged, he contravened the provisions of the Act. ' On 19 June 1984 directions were given by the Court as to the conduct of the proceeding. The directions then given included a direction that the Commission make discovery on or before 7 August 1984 with inspection of documents discovered on or before 14 August 1984, A list of the documents which the Commission had in its possession, custody or power was prepared on behalf of the Commission and was verified by the affidavit of Michael John O'Neill, a member of the Commission's staff, sworn 30 August 1984. The documents were identified in a schedule containing Parts 1 - 8 inclusive. A claim was made that certain of the documents identified in Parts 3, 4, 5 and 7 of the schedule and the documents identified in Part 8 of the schedule were privileged from production. It is unnecessary to refer further to Part 8. The grounds on which the other documents were said to be privileged from production were set out in the list of documents as follows: ""(a) as to the documents in Part 3 of the Schedule numbered 3.5, 3.6 and 3.7, that the documents relate to settlement negotiations and are the subject of an agreement between the Applicant Cthe Commission] and the first and third Respondents that the documents will not be used to the prejudice of the parties to the proceedings; (b) as to the documents in Part 4 of the Schedule numbered 4.8 to 4.18 inclusive and the documents in Part 7 of the Schedule numbered 7.4, 7.7A and 7.9, that the documents are subject to legal professional privilege in that the documents were brought into existence for the sole purpose of obtaining or recording evidence to be used in the proceedings herein or recording requests in relation to such evidence; (c) as to the documents in Part 5 of the Schedule numbered 5.18 and 5.20, and also the documents numbered 5.19 and 5.21 to the extent that those documents record legal advice, that the documents are subject to legal professional privilege in that the documents record legal advice with respect to the proceedings herein; (d) as to the documents in Part 7 of the Schedule numbered 7.5, 7.6, 7.7, 7.8 and 7.9, that the documents were brought into existence by the Applicant's legal advisers for the sole purpose of recording evidence for use in the proceedings herein." When the matter came before the Court for further directions on 2 October 1984, the second and fourth respondents sought an order that the Commission produce for inspection by those respondents ail of the documents for which privilege had been claimed. As the Commission had not been given adequate notice of the application I adjourned the application for hearing on a later date and directed that notice of motion be filed and served. Notice of motion was given returnable, with the consent of the Commission, on 5 October 1984. The orders sought in the notice of motion went beyond what had been envisaged when the matter was before the Court on 2 October 1984 in that a claim was made based upon section 157 of the Act that copies of certain of the documents for which privilege had been claimed, namely the documents numbered 3.6, 4.11, 4.16, 4.17, 7.5 and 7.6 in the schedule to the list of documents, be furnished by the Commission to the second and fourth respondents. The ground of that application, as stated in the notice, was that the documents were furnished to or obtained by the Commission in connection with the matters to which the proceeding relates, that they tended to establish the case of the second and fourth respondents and that they were not obtained from those respondents or prepared by an officer or professional adviser of the Commission. The notice of motion also sought an order, either in addition or as an alternative to the order sought under section 157 of the Act, that the Commission produce for the inspection of the second and 6. fourth respondents each of the documents described in Parts 3, 4, 5 and 7 of the schedule to the list of documents for which privilege from production had been claimed. Although no notice of the application under section 157 of the Act had been given to the Commission prior to the serving of the notice of motion on 4 October 1984 (and although the notice of motion did not expressly refer to that provision ag being the basis of the claim), the Commission consented to that claim being argued when the motion came before the Court on the following day. I propose to refer first to the Commission's claim that the documents referred to in paragraphs (a) to (d) inclusive of the list of documents, the text of which paragraphs is set out above, are privileged from production. In my opinion the Commission has in the material placed before the Court established a proper and sufficient foundation for that claim. It appears from the list of documents that by a memorandum dated 1 August 1983 the Assistant Commissioner of the Commission requested advice in relation to the proceedings from the Commission's professional legal advisers. That statement has been amplified in the affidavit of Michael John 0'Neill sworn 4 October 1984 wherein it is stated that on 1 August 1983 the Commission instructed its solicitors to act on its behalf in this proceeding which was then proposed to be brought by the 7. Commission. The proceeding was commenced in this Court on 25 May 1984. Documents 3.5, 3.6 and 3.7 are described in the schedule to the list of documents as follows - "3.5 Note by Applicant's legal adviser of telephone conversations with Plath, solicitor, on 20 and 23 July 1984. 3.6 Letter from Plath & Bedford, solicitors, to Australian Government Solicitor dated 30 July 1984. 3.7 Copy of letter from Australian Government Solicitor to Plath & Bedford, solicitors, dated 9 August 1984," It is common ground that Messrs Plath and Bedford are, and were on the dates mentioned, the solicitors for the . first and third respondents. It ig also made clear by the list of documents that document 3.5 is a note of a "without prejudice" discussion between the legal adviser of the Commission and the solicitor for the first and third respondents concerning settlement negotiations in respect of the proceeding and that documents 3.6 and 3.7 are "without prejudice" correspondence between the solicitors. Those documents are clearly the subject of privilege from production: see Whiffen v. Hartwright (1848) 11 Beav. 111; 50 E.R. 759: Rabin v. Mendoza & Co. [£1954] 1 8. All E.R. 247: INT Management Pty. Ltd. v. Trade Practices Commission (1983) 47 A.L.R. 693 at pp.701, 712. Counsel for the second and fourth respondents did not, in the result, argue to the contrary. He contended, however, that the claim had not been sufficiently made out in the list of documents and that it only became tenable by virtue of the additional affidavit material filed on behalf of the Commission on 4 October 1984, This submission can, of course, go only to the question of costs. I note that in an affidavit sworn by Alice Margaret Sproule on 21 September 1984 the document identified in the list of documents as document 3.7 was referred to as a letter to the solicitors for the first and third respondents seeking on a "without prejudice" basis certain information. That affidavit also. referred to certain other "without prejudice" communications between the Commission's solicitor and the solicitor for the first and third respondents in relation to the proceeding. The clear inference is that those communications are those identified in the list of documents as documents 3.5 and 3.6. On the material before me I find that documents 3.5, 3.6 and 3.7 are privileged from production and that the claim for privilege was properly made and supported in the list of documents and the schedule thereto. Documents 4.8 to 4.18 inclusive may be described compendiously as notes made by officers of the 9. Commission of inquiries made of officers of companies refining and distributing petroleum products and correspondence between the Commission and those companies. Legal professional privilege is claimed for those documents as having been brought into existence for the sole purpose of obtaining or recording evidence to be used in the proceeding or recording requests in relation to such evidence. The notes and correspondence all bear dates subsequent to the date upon which instructions were given by the Commission to its solicitors to act on its behalf in connection with this proceeding. Counsel for the second and fourth respondents did not, in the end, dispute that the claim for privilege had been established in respect of the documents, other than documents 4.11, 4.16 and 4.17 but contended that it was only the further affidavit of Michael John O0'Neill sworn on 4 October 1984 and filed on behalf of the Commission that established the necessary foundation for that claim. It was submitted that the claim for privilege had not been made out in respect of documents 4.11, 4.16 and 4.17 because it should be inferred that there was a duality of purpose in bringing those documents into existence so as to displace the privilege which would have attached to them had their existence been attributable solely to legal proceedings contemplated at the time. There is evidence before the Court in the form of the affidavit of Michael John O'Neill sworn 4 October 1984 that those documents were 10. brought into existence for the sole purpose of obtaining or recording evidence to be used in the proceedings which were then contemplated. The deponent was not cross-examined on his affidavit and no countervailing material was put before the Court. I find that the documents 4.8 to 4.18 inclusive are privileged from production. I also find that that claim was adequately and sufficiently made in the list of documents and the schedule thereto. Counsel for the second and fourth respondents did not press any claim in respect of the documents in Part 5 of the schedule to the list of documents, those documents bearing dates between 19 January 1984 and 23 May 1984 and being described ag internal records of the Commission recording legal advice. I need say no more about those documents. The remaining documents for which legal professional privilege was claimed are documents 7.4 to 7.9 inclusive (including document 7.7A) described as statements and records of interviews. The ground of the claim in respect of documents 7.4, 7-7A and 7.9 ig that the documents were brought into existence by an officer of the Commission for the sole purpose of obtaining or recording evidence to be used in the proceedings. It is to be noted that the list of documents 11. refers to document 7.9 in both paragraph (b) and paragraph (d). The latter reference is obviously an error. Documents 7.4, 7.7A and 7.9 fall into the same category as documents 4.8 to 4.18 inclusive and I have reached a similar conclusion in respect of them. They are, therefore, properiy the subject of privilege from production. The evidence before the Court is that documents 7.5, 7.6, 7.7 and 7.8 were brought into existence by the Commission's legal adviser for the sole purpose of recording evidence for use in the proceeding. They are therefore, clearly the subject of legal professional privilege and I so find. I turn now to the argument based on section 157 of the Act. That section provides: "157. (1) Where - (a) a corporation makes an application to the Commission for an authorization; (b) the Commission gives a notice under sub-section 91(4) to a corporation to Which an authorization has been given; (c) a proceeding is instituted against a corporation or other person under section 77, 80 or 81; or (d) an application is made under section 80A or sub-section 87(1A) for an order against a corporation or other person, the Commission shall, at the request of the corporation or other person and upon payment of 12. the prescribed fee (if any), furnish to the corporation or other person - (e) a copy of every document that has been furnished to, or obtained by, the Commission in connexion with the matter to which the application, notice or proceeding relates and tends to establish the case of the corporation or other person; and (f) a copy of any other document in the possession of the Commission that comes to the attention of the Commission in connexion with the matter to which the application, notice or proceeding relates and tends to establish the case of the corporation or other person, not being a document obtained from the corporation or other person or prepared by an officer or professional adviser of the Commission. (2) If the Commission does not comply with a request under sub-section (1), the Court shall, subject to sub-section (3), upon application by the corporation which, or other person who, made the request, make an order directing the Commission to comply with the request. (3) The Court may refuse to make an order under sub-section (2) in respect of a document or part of a document if the Court considers it inappopriate to make the order by reason that the disclosure of the contents of the document or part of the document would prejudice any person, or for any other reason. (4) Before the Court gives a decision on an application under sub-section (2), the Court may require any documents to be produced to it for inspection. (5) An order under this section may be expressed to be subject to conditions specified in the order." The ground on which it is argued that an order should be made under that section in respect of the document identified as document 3.6, being a letter dated 30 July. 1984 from the solicitors for the first and third respondents 13. to the Commission's solicitor, igs that "it may contain something of significance concerning statements of fact by a potential witness" which may affect the second and fourth respondents. Counsel referred in support of this submission to the following passage in the judgment of Bowen C.J. in Trade Practices Commmission v. INT Management Pty. Ltd. (1981) 39 A.L.R. 665 at p.670: "The intention disclosed by the wording of s.157 in relation to proceedings under ss. 77, 80, B0A, 81 or 87(1A) is that a corporation is to be given fair treatment, in the sense that it is to be given copies of documents which the Commission has and which would, speaking broadly, support the corporation's case. This may be compared with the obligation placed upon a prosecutor, who knows of a credible witness who can supply material facts which tend to show an accused is innocent, to make the witness or his statement available to the defence (see Archbold: Criminal Pleading, ' Evidence and Practice 40th ed. ».281, para 443; see also Maddison v. Goldrick £1976] 1 ° NSWLR 651 at 668)." It is for the second and fourth respondents to establish that the document "tends to establish the case" of those respondents. It is true that, as those respondents have not seen the document, they are unable to give evidence on the subject. Accepting that it is sufficient to come within section 157 if the document tends to impeach the Commission's case (Trade Practices Commission v. INT Management Pty. Ltd., supra, at p.671), I am not satisfied 14, that any sufficient basis has been shown from which to conclude, or infer, that document 3.6 "tends to establish" the case of the second and fourth respondents in the relevant sense. Nor do I think that a sufficient basis has been shown justifying the Court in requiring the document to be produced for the Court's inspection. It was also contended that an order shouid be made under section 157 in respect of documents 4.11, 4.16 and 4.17, being letters to the Commission from The Shell Company of Australia Limited and Ampol Limited and dated respectively 28 November 1983, 13 January 1984 and 16 January 1984. The ground of the application is that the letters may contain material relevant to the effect of the alleged arrangement or understanding between the first, second and fifth respondents. In my opinion no sufficient foundation has been shown for the making of an order under section 157 in respect of those documents. Nor am I satisfied that I should order the production of the documents for the Court's inspection. There is nothing in the material before the Court which properly leads to an inference that the letters, if produced, would "tend to establish" the case of the second and fourth respondents in the sense in which those words are used in section 157. It remains to consider the claim that an order under section 157 should be made in respect of documents 7.5 15. and 7.6. Those documents are described in the list of documents as statements of named persons brought into existence by the Commission's legal adviser for the sole purpose of recording evidence for use in the proceeding. That description has been supplemented by the affidavit of Alice Margaret Sproule sworn 5 October 1984. The deponent states that she is a senior legal officer employed in the ; office of the Australian Government Solicitor having the conduct of the proceeding on behalf of the Commission. Referring to documents 7.5 and 7.6 the deponent states - "I say that after such persons had been interviewed for the purposes of these proceedings, alli of the said statements were drawn up by me and I then had the statements typed and had them signed by such persons." Having regard to the dates which documents 7.5 and 7.6 bear, namely 24 and 25 August 1983, and the circumstance that the relevant provisions of the statute creating the Australian Government Solicitor, the Judiciary Amendment Act (No.2) 1984, did not come into operation until 1 July 1984, the affidavit of Alice Margaret Sproule does not state expressly that at the date the statements were prepared she was the legal adviser of the Commission. There is, however, sufficient material in the affidavit to warrant the conclusion that, prior to the coming into existence of the body corporate known as the Australian Government Solicitor, the legal adviser of the Commission in respect of this proceeding was the Crown Solicitor for the Commonwealth, that the deponent to the affidavit was, at the date documents 7.5 and 7.6 were prepared, employed in the office of the Crown Solicitor for the Commonwealth and that she 16. then had the conduct of the proceeding on the Commission's behalf. Indeed, no submission was put to the contrary. The question then arises whether the statements were "prepared by an officer or professional adviser of the Commission" within the meaning of those words in sub-section 157(1). That question was considered by Bowen C.J. in Trade Practices Commission v. INT Management Pty. Ltd. (1981) 39 A.L.R. 665. Recognising that whichever of the alternative constructions of the provision put forward in argument would lead to difficulties, the learned Chief Judge concluded (at p.670): "In my opinion the words 'prepared by an officer of the Commission' refer to a document which has been drawn up by the officer, whether or not any particular contribution of ideas is evident in the contents of it. This appears to be the ordinary meaning of the word 'prepare' in relation to writings or documents. It is consistent with the position in other fields of the law (see Re Universal Guarantee Pty. Ltd.; Ex parte Law Institute of Victoria £19547 V.L.R. 650; Ex parte Cowley-Cooper; Re Hedgson [1958] 5.R. (NSW) 413 at 414; Barristers' Board (WA) v. Tranter Corporation Pty, Ltd. [£19761 W.A.R. 65 at 70)." With respect, I agree with and adopt his Honour's conclusion. Applying that view of the provision, I am satisfied on the basis of the uncontested material before the Court 17. that each of the statements was prepared by Alice Margaret Sproule who was, at the relevant time, a professional adviser of the Commission. The documents are, therefore, outside the purview of section 157. In the light of the conclusions to which I have come it is unnecessary to consider the question whether, if a document falls within paragraph (e) or paragraph (f) of sub-section 157(1) of the Act and is not excluded by the later words of that sub-section, the Commission may still claim legal professional privilege and refuse to supply a copy of it. For the reasons I have set out above, the application is dismissed. The second and fourth respondents must pay the Commission's costs of the application. I certify that this and the preceding 16 pages are a true copy of the Reasons for Judgment herein of the Honourable Mr Justice Neaves. Associate "ES . Dated: 10 October 1984 324 at VORU — IN THE FEDERAL COURT OF AUSTRALIA QUEENSLAND DISTRICT REGISTRY GENERAL DIVISION BETWEEN ae 0) JUDGE MAKING ORDER : DATE OF ORDER H WHERE MADE THE COURT ORDERS THAT: RDER Neaves J. 10 October 1984 Brisbane eee TRADE, PRACTICES COMMISSION Applicant NASHCO PTY LIMITED First Respondent GARGEVA PTY LIMITED Second Respondent JOSEPH PATRICK NASH Third Respondent NEVILLE FRANCIS McCOSH Fourth Respondent RONALD JOHN JAMES DAVIS Fifth Respondent 1. The application by the second and fourth respondents be dismissed. 2. The second and fourth respondents pay the applicant's costs of the application. No. Qld G 53 of 1984 CPR, IN THE FEDERAL COURT OF AUSTRALIA QUEENSLAND DISTRICT REGISTRY GENERAL DIVISION ) ) » No. Qld G 53 of 1984 ) ) BETWEEN : TRADE PRACTICES COMMISSION Applicant AND: NASHCO PTY LIMITED First Respondent GARGEVA PTY LIMITED Second Respondent JOSEPH PATRICK NASH Third Respondent NEVILLE FRANCIS McCOSH Fourth Respondent RONALD JOHN JAMES DAVIS CORAM: Neaves J. DATE: 10 OCTOBER 1984 Fifth Respondent REASONS FOR JUDGMENT Neaves J. A proceeding is pending in this Court at the suit of the Trade Practices Commission ("the Commission") against Nashco Pty. Limited ("the first respondent"), Gargeva Pty. Limited ("the second respondent"), Joseph Patrick Nash ("the third respondent"), Neville Francis McCosh ("the fourth respondent") and Ronald John James Davis ("the fifth respondent") for pecuniary penalties and injunctive relief in respect of certain alleged contraventions of paragraph 45(2)(a) of the Trade Practices Act 1974 ("the Act"). The statement of claim filed on behalf of the Commission alleges that each of the first, second and fifth respondents at all material times carried on business as a petrol retailer at Bundaberg. Queensland. those businesses being respectively carried on under the business names "Shell Speedy Service Station", ""Ampol Canelanders Service Station" and "Bundaberg Star Service Station". It is further alleged that on or about 17 February 1983 the first respondent by its servant or agent the third respondent, the second respondent by its servant or agent the fourth respondent, and the fifth respondent made an arrangement or arrived at an understanding between themselves and other petrol retailers at Bundaberg whereby the minimum retail price of super-grade petrol supplied, or to be supplied, at Bundaberg by the parties to the arrangement or understanding would be fixed or maintained at a particular level. The material provisions of that arrangement or understanding, so it is alleged, had a purpose, or had or were likely to have an effect, falling within sub-section 45A(1) of the Act. The third respondent, being a director of the first respondent, and the fourth respondent, a director of the second respondent, are alleged to have been directly or 3. indirectly knowingly concerned in, or a party to, the conduct of the first and second respondents respectively. A defence has not been filed on behalf of the first or third respondents. The second and fourth respondents have filed a defence by which those respondents either do not admit or deny the allegations of fact contained in the statement of claim other than those relating to the jurisdiction of the Court, the status of the Commission, the carrying on of business by the second respondent and the f the fourth reapondent. The fifth respondent has statu in oO not filed a defence and has informed the Court that he does not wish to defend the proceeding, that he acknowledges the correctness of the allegations of fact made against him and that, in engaging in the conduct alleged, he contravened the provisions of the Act. On 19 June 1984 directions were given by the Court as to the conduct of the proceeding. The directions then given included a direction that the Commission make discovery on or before 7 August 1984 with inspection of documents discovered on or before 14 August 1984. A list of the documents which the Commission had in its possession, custody or power was prepared on behalf of the Commission and was verified by the affidavit of Michael John 0O'Neill, a member of the Commission's staff, sworn 30 August 1984. The documents were identified in a schedule containing Parts 1 - 8 inclusive. A claim was made that certain of the documents identified in Parts 3, 4, 5 and 7 of the schedule and the documents identified in Part 8 of the schedule were privileged from production. It is unnecessary to refer further to Part 8. The grounds on which the other documents were said to be privileged from production were set out in the list of documents as follows: "(a) as to the documents in Part 3 of the Schedule numhered 3.5, 3.6 and 3.7. that the documents relate to settlement negotiations and are the subject of an agreement between the Applicant Cthe Commission] and the first and third Respondents that the documents will not be used to the prejudice of the parties to the proceedings; (b) as to the documents in Part 4 of the Schedule numbered 4.8 to 4.18 inclusive and the documents in Part 7 of the Schedule numbered 7.4, 7.7A and 7.9, that the documents are subject to legal professional privilege in that the documents were brought into existence for the sole purpose of obtaining or recording evidence to be used in the proceedings herein or recording requests in relation to such evidence; (c) as to the documents in Part 5 of the Schedule numbered 5.18 and 5.20, and also the documents numbered 5.19 and 5.21 to the extent that those documents record legal advice, that the documents are subject to legal professional privilege in that the documents record legal advice with respect to the proceedings herein; (d) as to the documents in Part 7 of the Schedule numbered 7.5, 7.6, 7.7, 7.8 and 7.9, that the documents were brought into existence by the Applicant's legal advisers for the sole purpose of recording evidence for use in the proceedings herein." When the matter came before the Court for further directions on 2 October 1984, the second and fourth respondents sought an order that the Commission produce for inspection by those respondents all of the documents for which privilege had been claimed. As the Commission had not been given adequate notice of the application I adjourned the application for hearing on a later date and directed that notice of motion be filed and served. Notice of motion was given returnable, with the consent of the Commission, on 5 October 1984. The orders sought in the notice of motion went beyond what had been envisaged when the matter was before the Court on 2 October 1984 in that a claim was made based upon section 157 of the Act that copies of certain of the documents for which privilege had been claimed, namely the documents numbered 3.6, 4.11, 4.16, 4.17, 7.5 and 7.6 in the schedule to the list of documents, be furnished by the Commission to the second and fourth respondents. The ground of that application, as stated in the notice, was that the documents were furnished to or obtained by the Commission in connection with the matters to which the proceeding relates, that they tended to establish the case of the second and fourth respondents and that they were not obtained from those respondents or prepared by an officer or professional adviser of the Commission. The notice of motion also sought an order, either in addition or as an alternative to the order sought under section 157 of the Act, that the Commission produce for the inspection of the second and fourth respondents each of the documents described in Parts 3, 4, 5 and 7 of the schedule to the list of documents for which privilege from production had been claimed. Although no notice of the application under section 157 of the Act had been given to the Commission prior to the serving of the notice of motion on 4 October 1984 (and although the notice of motion did not expressly refer to that provision as being the basis of the claim), the Commission consented to that claim being argued when the motion came before the Court on the following day. I propose to refer first to the Commission's claim that the documents referred to in paragraphs (a) to (d) inclusive of the list of documents, the text of which paragraphs is set out above, are privileged from production. In my opinion the Commission has in the material placed before the Court established a proper and sufficient foundation for that claim. It appears from the list of documents that by a memorandum dated 1 August 1983 the Assistant Commissioner of the Commission requested advice in relation to the proceedings from the Commission's professional legal advisers. That statement has been amplified in the affidavit of Michael John 0'Neill sworn 4 October 1984 wherein it is stated that on 1 August 1983 the Commission instructed its solicitors to act on its behalf in this proceeding which was then proposed to be brought by the Commission. The proceeding was commenced in this Court on 25 May 1984. Documents 3.5, 3.6 and 3.7 are described in the schedule to the list of documents as follows - "3.5 Note by Applicant's legal adviser of telephone conversations with Plath, solicitor, on 20 and 23 July 1984. 3.6 Letter from Plath & Bedford, solicitors, to Australian Government Solicitor dated 30 July 1984. 3.7 Copy of letter from Austraiian Government Solicitor to Plath & Bedford, solicitors, dated 9 August 1984." It is common ground that Messrs Plath and Bedford are, and were on the dates mentioned, the solicitors for the first and third respondents. It is also made clear by the list of documents that document 3.5 ig a note of a "without prejudice" discussion between the legal adviser of the Commission and the solicitor for the first and third respondents concerning settlement negotiations in respect of the proceeding and that documents 3.6 and 3.7 are "without prejudice" correspondence between the solicitors. Those documents are clearly the subject of privilege from production: see Whiffen v. Hartwright (1848) 11 Beav. 111; 50 E.R. 759: Rabin v. Mendoza & Co. £1954] 1 All E.R. 247: INT Management Pty. Ltd. v. Trade Practices Commission (1983) 47 A.L.R. 693 at pp.701, 712. Counsel for the second and fourth respondents did not, in the result, argue to the contrary. He contended, however, that the claim had not been sufficiently made out in the list of documents and that it only became tenable by virtue of the additional affidavit material filed on behalf of the Commission on 4 October 1984. This submission can, Si f costs of course, go only to the question o I note that in an affidavit sworn by Alice Margaret Sproule on 21 September 1984 the document identified in the list of documents as document 3.7 was referred to as a letter to the solicitors for the first and third respondents seeking on a "without prejudice" basis certain information. That affidavit also referred to certain other "without prejudice" communications between the Commission's solicitor and the solicitor for the first and third respondents in relation to the proceeding. The clear inference is that those communications are those identified in the list of documents as documents 3.5 and 3.6. On the material before me I find that documents 3.5, 3.6 and 3.7 are privileged from production and that the claim for privilege was properly made and supported in the list of documents and the schedule thereto. Documents 4.8 to 4.18 inclusive may be described compendiously as notes made by officers of the Commission of inquiries made of officers of companies refining and distributing petroleum products and correspondence between the Commission and those companies. Legal professional privilege is claimed for those documents as having been brought into existence for the sole purpose of obtaining or recording evidence to be used in the proceeding or recording requests in relation to such evidence. The notes and correspondence all bear dates subsequent to the date upon which instructions were given by the Commission to its solicitors to act on its behalf in connection with this proceeding. Counsel for the second and fourth respondents did not, in the end, dispute that the claim for privilege had been established in respect of the documents, other than documents 4.11, 4.16 and 4.17 but contended that it was only the further affidavit of Michael John O'Neill sworn on 4 October 1984 and filed on behalf of the Commission that established the necessary foundation for that claim. It was submitted that the claim for privilege had not been made out in respect of documents 4.11, 4.16 and 4.17 because it should be inferred that there was a duality of purpose in bringing those documents into existence so as to displace the privilege which would have attached to then had their existence been attributable solely to legal proceedings contemplated at the time. There is evidence before the Court in the form of the affidavit of Michael John O'Neill sworn 4 October 1984 that those documents were 10. brought into existence for the sole purpose of obtaining or recording evidence to be used in the proceedings which were then contemplated. The deponent was not cross-examined on his affidavit and no countervailing material was put before the Court. I find that the documents ¢.8 to 4.18 inclusive are privileged from production. I also find that that claim was adequately and sufficiently made in the list of documents and the schedule thereto. Counsel for the second and fourth respondents did not press any claim in respect of the documents in Part 5 of the schedule to the list of documents, those documents bearing dates between 19 January 1984 and 23 May 1984 and being described as internal records of the Commission recording legal advice. I need say no more about those documents. The remaining documents for which legal professional privilege was claimed are documents 7.4 to 7.9 inclusive (including document 7.7A) described as statements and records of interviews. The ground of the claim in respect of documents 7.4, 7.7A and 7.9 is that the documents were brought into existence by an officer of the Commission for the sole purpose of obtaining or recording evidence to be used in the proceedings. It is to be noted that the list of documents ll. refers to document 7.9 in both paragraph (b) and paragraph (d). The latter reference is obviously an error. Documents 7.4, 7.7A and 7.9 fail into the same category as documents 4.8 to 4.18 inclusive and I have reached a similar conclusion in respect of them. They are, therefore, properly the subject of privilege from production. The evidence hefore the Court is that documents 9 --29 FP 2 eee wr ce hens rere + q - 7 and 7.8 were brought into existen Qa e@ by the 7.5, 7.6, 7. Commission's legal adviser for the sole purpose of recording evidence for use in the proceeding. They are therefore, clearly the subject of legal professional privilege and I so find. I turn now to the argument based on section 157 of the Act. That section provides: "157. (1) Where - (a) a corporation makes an application to the Commission for an authorization; (b) the Commission gives a notice under sub-section 91(4) to a corporation to which an authorization has been given; (c) a proceeding is instituted against a corporation or other person under section 77, 80 or 81; or (d) an application is made under section 80A or sub-section 87(1A) for an order against a corporation or other person, the Commission shall, at the request of the corporation or other person and upon payment of 12. the prescribed fee (if any), furnish to the corporation or other person - (e) a copy of every document that has been furnished to, or obtained by, the Commission in connexion with the matter to which the application, notice or Proceeding relates and tends to establish the case of the corporation or other person; and (f) a copy of any other document in the possession of the Commission that comes to the attention of the Commission in connexion with the matter to which the application, notice or proceeding relates and tends to establish the case of the corporation or other person, not being a document obtained from the corporation or other person or prepared by an officer or professional adviser of the Commission. (2) If the Commission does not comply with a request under sub-section (1), the Court shall, subject to sub-section (3), upon application by the corporation which, or other person who, made the request, make an order directing the Commission to comply with the request. (3) The Court may refuse to make an order under sub~section (2) in respect of a document or part of a document if the Court considers it inappopriate to make the order by reason that the disclosure of the contents of the document or part of the document would prejudice any person, or for any other reason. (4) Before the Court gives a decision on an application under sub-section (2), the Court may require any documents to be produced to it for inspection. (5) An order under this section may be expressed to be subject to conditions specified in the order." The ground on which it is argued that an order should be made under that section in respect of the document identified as document 3.6, being a letter dated 30 July 1984 from the solicitors for the first and third respondents 13. to the Commission's solicitor, is that "it may contain something of significance concerning statements of fact by a potential witness" which may affect the second and fourth respondents. Counsel referred in support of this submission to the following passage in the judgment of Bowen C.J. in Trade Practices Commmission v. INI Management Pty. Ltd. (1981) 39 A.L.R. 665 at p.670: "The intention disclosed by the wording of 3.157 in relation to proceedings under ss. 77, 80, @OA, 81 or 87/1A) is that a corporation is to be given fair treatment, in the sense that it is to be given copies of documents which the Commission has and which would, speaking broadly, support the corporation's case. This may be compared with the obligation placed upon a prosecutor, who knows of a credible witness who can supply material facts which tend to show an accused is innocent, to make the witness or his statement available to the defence (see Archbold: Criminal Pleading, Evidence and Practice 40th ed. p.281, para 443; see also Maddison v. Goldrick [19761 1 NSWLR 651 at 668)." It is for the second and fourth respondents to establish that the document "tends to establish the case" of those respondents. It is true that, as those respondents have not seen the document, they are unable to give evidence on the subject. Accepting that it is sufficient to come within section 157 if the document tends to impeach the Commission's case (Trade Practices Commission v. INT Management Pty. Ltd., supra, at p.671), I am not satisfied 14, that any sufficient basis has been shown from which to conclude, or infer, that document 3.6 "tends to establish" the case of the second and fourth respondents in the relevant sense. Nor do I think that a sufficient basis has been shown justifying the Court in requiring the document to be produced for the Court's inspection. It was also contended that an order should be made under section 157 in respect of documents 4.11, 4.16 and 4.17, being letters to the Commission from The Shell Company of Australia Limited and Ampol Limited and dated respectively 28 November 1983, 13 Caruery; 1984 and 16 January 1984. The ground of the application is that the letters may contain material relevant to the effect of the alleged arrangement or understanding between the first, second and fifth respondents. In my opinion no sufficient foundation has been shown for the making of an order under section 157 in respect of those documents. Nor am I satisfied that I should order the production of the documents for the Court's inspection. There is nothing in the material before the Court which properly leads to an inference that the letters, if produced, would "tend to establish" the case of the second and fourth respondents in the sense in which those words are used in section 157. It remains to consider the claim that an order under gection 157 should be made in respect of documents 7.5 15. and 7.6. Those documents are described in the list of documents as statements of named persons brought into existence by the Commission's legal adviser for the sole purpose of recording evidence for use in the proceeding. That description has been supplemented by the affidavit of Alice Margaret Sproule sworn 5 October 1984. The deponent states that she is a senior legal officer employed in the office of the Australian Government Solicitor having the conduct of the proceeding on behalf of the Commission. Referring to documents 7.5 and 7.6 the deponent states - + "I say that after such persons had been interviewed for the purposes of these proceedings, all of the said statements were drawn up by me and I then had the statements typed and had them signed by such persons." Having regard to the dates which documents 7.5 and 7.6 bear, namely 24 and 25 August 1983, and the circumstance that the relevant provisions of the statute creating the Australian Government Solicitor, the Judiciary Amendment Act (No.2) 1984, did not come into operation until 1 July 1984, the affidavit of Alice Margaret Sproule does not state expresSly that at the date the statements were prepared she was the legal adviser of the Commission. There is, however, sufficient material in the affidavit to warrant the conclusion that, prior to the coming into existence of the body corporate known as the Australian Government Solicitor, the legal adviser of the Commission in respect of this proceeding was the Crown Solicitor for the Commonwealth, that the deponent to the affidavit was, at the date documents 7.5 and 7.6 were prepared, employed in the office of the Crown Solicitor for the Commonwealth and that she 16. then had the conduct of the proceeding on the Commission's behalf. Indeed, no submission was put to the contrary. The question then arises whether the statements were "prepared by an officer or professional adviser of the Commission" within the meaning of those words in sub-section 157(1). That question was considered by Bowen C.J. in Trade Practices Commission v. IND Management Pty. Ltd. (19812) 39 A.L.R. 665. Recognising that whichever of the alternative constructions of the provision put forward in argument would lead to difficulties, the learned Chief Judge concluded (at p.670): "In my opinion the words 'prepared by an officer of the Commission' refer to a document which has been drawn up by the officer, whether or not any particular contribution of ideas is evident in the contents of it. This appears to be the ordinary meaning of the word 'prepare' in relation to writings or documents. It is consistent with the position in other fields of the law (see Re Universal Guarantee Pty. Ltd.; Ex parte Law Institute of Victorta C1954] V.L.R. 650; Ex parte Cowley-Cooper; Re Hodgson £19587 S.R. (NSW) 413 at 414; Barristers' Board (WA) v. Tranter Corporation Pty. Ltd. £1976] W.A.R. 65 at 70)." With respect, I agree with and adopt his Honour's conclusion. Applying that view of the provision, I am satisfied on the basis of the uncontested material before the Court 17. that each of the statements was prepared by Alice Margaret Sproule who was, at the relevant time, a professional adviser of the Commission. The documents are, therefore, outside the purview of section 157. In the light of the conclusions to which I have come it is unnecessary to consider the question whether, if a document falls within paragraph (e) or paragraph (f) of sub-section 157(1) of the Act and is not excluded by the later words of tnat sub-section, the Commission may still claim legal professional privilege and refuse to supply a copy of it. For the reasons I have set out above, the application is dismissed. The second and fourth respondents must pay the Commission's costs of the application. I certify that this and the preceding 16 pages are a true copy of the Reasons for Judgment herein of the Honourable Mr Justice Neaves. Assocthte ; ' Dated: 10 October 1984