Australian Competition & Consumer Commission v Australian Safeway Stores Pty Ltd & Ors [1998] FCA 237

FEDERAL COURT OF AUSTRALIA

EVIDENCE - legal professional privilege - interlocutory proceedings - discovery and subpoenas - whether the appropriate test is common law "sole purpose" or statutory "dominant purpose" test - whether the Evidence Act 1995 (Cth) has impliedly repealed or abrogated the sole purpose test laid down in Grant v Downs (1976) 135 CLR 674. EVIDENCE - whether preparation and drafting of witness statements by applicant's officer for provision of information and submission to the applicant were brought into existence for the purpose of use in prospective or reasonably anticipated legal proceedings or obtaining legal advice - whether objective or subjective factors to be considered in determining when proceedings were anticipated. EVIDENCE - whether documents "confidential" - whether recording of non‑confidential conversation in a document can be protected from production. EVIDENCE - whether common interest privilege EVIDENCE - waiver - express waiver by disclosure of documents to an adverse party waiver of privilege - whether waiver if documents annexed to an affidavit tendered to court waiver - whether substance of documents disclosed and was made knowingly voluntarily pursuant to s 122 Evidence Act. Trade Practices Act 1974 Pt IV Evidence Act 1995 (Cth) s 118, s 119, s 122 Pt 3.10, Div 1 Federal Court Rules O 15 r15 Grant v Downs (1976) 135 CLR 674, followed Trade Practices Commission v Port Adelaide Wool (1995) 60 FCR 366, considered Meltend v Restoration Clinics of Australia Pty Ltd (1997) 145 ALR 391, considered National Employers' Mutual General Insurance Association Ltd v Waind (1979) 141 CLR 648, considered Commissioner, Australian Federal Police v Propend Finance Pty Ltd (1997) 141 ALR 545, considered Corporate Affairs Commission (NSW) v Yuill (1991) 72 CLR 319, considered Goldberg v Ng (1995) 185 CLR 83, considered Attorney‑General (NT) v Maurice (1986) 161 CLR 475, considered BT Australasia Pty Ltd v State of New South Wales (1996) 140 ALR 268, considered Esso Australia Resources Limited v The Commissioner for Taxation of the Commonwealth of Australia (unreported, Foster J, Federal Court of Australia, 21 November 1997), approved Telstra Corporation v Australia Media Holdings Limited (1997) 41 NSWLR 277, disapproved Tallglen Pty Ltd v Pay TV Holdings Pty Ltd (unreported, Hunter J, 3 March 1997), disapproved Towney v The Minister for Land and Water Conservation for New South Wales (1997) 147 ALR 402, disapproved Dyno Nobel Asia Pacific Limited v Sunny Share Shipping Finance Inc (unreported, Tamberlin J, Federal Court of Australia, 24 October 1997), considered Trade Practices Commission v Sterling (1979) 36 FLR 244, considered The Adelaide Steamship Co Ltd and Australian Securities Commission v Spalvins & Ors (unreported, Olney, Kiefel and Finn JJ, 2 March 1998), followed Nagan v Holloway (1996) 1 Qd R 607, considered Southern Equities Corporation Ltd v West Australian Government Holdings Ltd (1993) 10 WAR 1, considered O'Reilly v Commissioners of State Bank of Victoria (1983) 153 CLR 1, considered Carmody v Mackellar (1997) 148 ALR 210, considered Collins v London General Omnibus Company [1893] 68 LT 831, considered Warner v The Women's Hospital [1954] VLR 410, considered Gold Securities Australia Pty Ltd v Siebe PLC (unreported, Giles J, Supreme Court of New South Wales, Commercial Division, 31 October 1990), considered Ampolex Ltd v Perpetual Trustee Co (Canberra) Ltd (1995) 37 NSWLR 405, considered Woollahra Municipal Council v Westpac Banking Corporation (1994) 33 NSWLR 529, distinguished AUSTRALIAN COMPETITION AND CONSUMER COMMISSION v AUSTRALIAN SAFEWAY STORES PTY LTD & ORS VG 762 of 1997 GOLDBERG J MELBOURNE 18 MARCH 1998