Commonwealth Director of Public Prosecutions v Citigroup Global Markets Australia Pty Limited (No 3 - privilege claims) [2021] FCA 1208

Federal Court of Australia

Commonwealth Director of Public Prosecutions v Citigroup Global Markets Australia Pty Limited (No 3 – privilege claims) [2021] FCA 1208 File number: NSD 1316 of 2020

Judgment of: WIGNEY J

Date of judgment: 8 October 2021

Catchwords: PRACTICE AND PROCEDURE – subpoenas for production– non-party applications to set aside subpoenas – where privilege claims pursuant to s 131 and s 131A of the Evidence Act 1995 (NSW) were upheld in committal proceedings in the Local Court – whether subpoenas issued in the Federal Court which sought production of the documents found to be privileged in the Local Court should be set aside on the basis of res judicata, estoppel or abuse of process – relevant principles concerning res judicata, cause of action estoppel, issue estoppel and abuse of process – where Local Court ruling was interlocutory and not final – res judicata and estoppel inapplicable and no abuse of process PRIVILEGE – interlocutory applications claiming legal professional privilege and without prejudice privilege – whether documents disclosed communications between persons in dispute in connection with an attempt to settle the dispute – whether documents disclosed legal advice or communications for the dominant purpose of obtaining or giving legal advice or providing legal services – common law principles concerning without prejudice privilege –whether it is necessary for there to be a connection between the dispute in which the negotiations occurred and the subsequent dispute in which disclosure of the negotiations is sought – nature of the required connection between the two disputes – without prejudice privilege not established – legal professional privilege claims upheld