FEDERAL COURT OF AUSTRALIA Australian Competition & Consumer Commission v FFE Building Services Limited [2003] FCA 1294 AUSTRALIAN COMPETITION AND CONSUMER COMMISSION v FFE BUILDING SERVICES LIMITED (formerly Chubb Building Services Ltd) (formerly James Hardie Building Services P/L) t/as Fire Fighting Enterprises, TYCO AUSTRALIA PTY LIMITED (formerly Wormald Australia Pty Ltd) t/as Wormald Fire Systems, PREMIER FIRE PROTECTION (NSW) PTY LTD, METROPOLITAN FIRE SYSTEMS PTY LTD, ALLEN EDWARD SMITH, COLIN SIMPSON, VITO FODERA, JAMES BELL, ALLAN CARR, MITCHELL GRICE and BILL LAWSON N 509 of 2002 WILCOX J 13 NOVEMBER 2003 SYDNEY IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY N 509 of 2002 BETWEEN: AUSTRALIAN COMPETITION AND CONSUMER COMMISSION APPLICANT AND: FFE BUILDING SERVICES LIMITED (formerly Chubb Building Services Ltd) (formerly James Hardie Building Services P/L) t/as Fire Fighting Enterprises FIRST RESPONDENT TYCO AUSTRALIA PTY LIMITED (formerly Wormald Australia Pty Ltd) t/as Wormald Fire Systems SECOND RESPONDENT PREMIER FIRE PROTECTION (NSW) PTY LTD THIRD RESPONDENT METROPOLITAN FIRE SYSTEMS PTY LTD FOURTH RESPONDENT ALLEN EDWARD SMITH FIFTH RESPONDENT COLIN SIMPSON SIXTH RESPONDENT VITO FODERA SEVENTH RESPONDENT JAMES BELL EIGHTH RESPONDENT ALLAN CARR NINTH RESPONDENT MITCHELL GRICE TENTH RESPONDENT BILL LAWSON ELEVENTH RESPONDENT JUDGE: WILCOX J DATE OF ORDER: 13 NOVEMBER 2003 WHERE MADE: SYDNEY THE COURT ORDERS THAT: 1. The orders made on 27 October 2003 be varied by: (a) transferring documents 48, 52, 53, 55 and 122 from Schedule A to category (ii) of Schedule B; and (b) excluding from category (iii) of Schedule B documents 78, 79, 80, 83, 84, 85, 86, 96, 97 and 99 and adding these documents to category (i) of Schedule A. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY N 509 of 2002 BETWEEN: AUSTRALIAN COMPETITION AND CONSUMER COMMISSION APPLICANT AND: FFE BUILDING SERVICES LIMITED (formerly Chubb Building Services Ltd) (formerly James Hardie Building Services P/L) t/as Fire Fighting Enterprises FIRST RESPONDENT TYCO AUSTRALIA PTY LIMITED (formerly Wormald Australia Pty Ltd) t/as Wormald Fire Systems SECOND RESPONDENT PREMIER FIRE PROTECTION (NSW) PTY LTD THIRD RESPONDENT METROPOLITAN FIRE SYSTEMS PTY LTD FOURTH RESPONDENT ALLEN EDWARD SMITH FIFTH RESPONDENT COLIN SIMPSON SIXTH RESPONDENT VITO FODERA SEVENTH RESPONDENT JAMES BELL EIGHTH RESPONDENT ALLAN CARR NINTH RESPONDENT MITCHELL GRICE TENTH RESPONDENT BILL LAWSON ELEVENTH RESPONDENT JUDGE: WILCOX J DATE: 13 NOVEMBER 2003 PLACE: SYDNEY REASONS FOR JUDGMENT WILCOX J: 1 On 27 October 2003, I made orders in relation to production of documents discovered by the applicant, Australian Competition and Consumer Commission ('ACCC'). 2 On the following day, 28 October 2003, Mr Ian McNeilly, a lawyer acting for ACCC, drew to my associate's attention a possible factual error. I had said, in para 39 of my reasons of 27 October, that documents 48, 52, 53, 55 and 122 'were not communications to or from a party's lawyer'. Mr McNeilly pointed out that each of these documents was a communication from Phillips Fox, solicitors for the five respondents I referred to in my reasons as 'the Tyco respondents', to ACCC. 3 When Mr McNeilly's letter was brought to my attention, I realised the statement I had made in para 39 about these communications was not correct. However, it was not immediately clear to me that it followed that these documents were subject to legal professional privilege. I invited submissions on that matter. They have been received and considered. 4 All of the relevant communications were emails from Mr Paul Holm of Phillips Fox to an ACCC officer. All the emails were sent after the commencement of this proceeding. None of them was a statement or affidavit or a draft statement or affidavit. ACCC argued that the five documents were 'communications about the content of a witness' evidence after the proceedings had commenced, like those held to be privileged in par [42] [of my reasons] and were with a party's lawyer'. I have inspected the documents and find this description to be accurate. It follows, in my opinion, that they fall within category (f) of the summary offered by Lockhart J in Trade Practices Commission v Sterling (1979) 36 FLR 244. They were communications made with reference to litigation already commenced, for the purpose of being put before ACCC's solicitor (AGS) to enable AGS to prosecute that litigation. 5 It is not necessary to consider the claim of legal professional privilege in respect of these communications advanced on behalf of the Tyco respondents. I propose to vary my order of 27 October by transferring documents 48, 52, 53, 55 and 122 from Schedule A (not subject to legal professional privilege) to category (ii) of Schedule B. They are subject to legal professional privilege. 6 In response to the invitation to make further submissions, counsel for FFE claimed a further factual error. Basing myself upon the sequence of the document numbers, I had assumed that documents 78, 79, 80, 83, 84, 85, 86, 96, 97 and 99 post-dated the institution of the proceeding. Counsel pointed out this was not so. Although these documents are all draft witness statements, they were sent by Phillips Fox to ACCC before the proceeding commenced, apparently under cover of documents 11, 16, 19, 22, 36 and 39. Documents 11, 16, 19, 22, 36 and 39 are category (i) documents. 7 According to para 21 of Mr Ellis' affidavit, the statements were provided 'in order to conduct interviews in order to obtain further drafts which were then briefed to the AGS and Counsel briefed in this matter'. The conclusion expressed in para 29 of my earlier reasons applies equally to them; the documents are one step removed from being privileged. 8 Counsel for the Tyco respondents argued that, if ACCC's claim to legal professional privilege over these documents failed, nonetheless production should be refused, on the ground that production would infringe Tyco's legal professional privilege. 9 Tyco supported its claim with an affidavit of Tracey Joanne Roper, General Counsel of Tyco International, dated 26 September 2003, in which she referred to Tyco's leniency agreement with ACCC. She said at para 14 that documents 78, 79, 80, 83, 84, 85, 86, 96, 97 and 99 'are draft witness statements prepared by Phillips Fox and provided to the Commission for the purpose of the anticipated proceedings, and also for the purpose of the Commission's investigation and to satisfy the conditions of the Agreement'. 10 Ms Roper said the statements were supplied on a confidential basis, the relevant employees having been assured of confidentiality. However, those facts are not determinative of the question whether legal professional privilege applies to the documents. 11 The submission of counsel for the Tyco respondents, set out at para 9 of submissions filed on 2 October 2003, was that the subject draft statements 'were prepared for the purpose of these proceedings and also for the purpose of complying with the conditions of the leniency agreement. The former was the dominant purpose.' However, the effect of the evidence of Ms Roper and Mr Ellis is that, at the early stage at which they were provided, the witness statements were required by ACCC in order to facilitate the production of more developed and accurate statements that could be used in the anticipated proceeding. The statements were not brought into existence for use on Tyco's behalf, but as assistance to ACCC pursuant to the leniency agreement. Tyco's claim of legal professional privilege must be rejected. 12 I propose to vary the previous order in such a way as to exclude these ten documents from category (iii) of Schedule B and to insert them in category (i) of Schedule A. I certify that the preceding twelve (12) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Wilcox. Associate: Dated: 13 November 2003 Counsel for the Applicant: Mr N J Williams SC, Mr D Godwin Solicitor for the Applicant: Australian Government Solicitor Counsel for the First Respondent: Mr W G Muddle Solicitors for the First Respondent: Deacons Counsel for the Second, Fourth, Ninth, Tenth and Eleventh Respondents: Mr D R Stack Solicitors for the Second, Fourth, Ninth, Tenth and Eleventh Respondents: Phillips Fox Counsel for the Seventh Respondent: Mr D R Stack Solicitors for the Seventh Respondent: Carbon Legal Date of Hearing: 3 October 2003