AUSTRALIA Law and Practice Contributed by: Elizabeth Avery, Simon Muys, Jacqueline Reid and Owen Fischbein, Gilbert + Tobin
6.2 Legal Professional Privilege Communications subject to a claim of legal profes - sional privilege can be withheld from inspection, but their existence must be disclosed in a list of discov - ered documents, as well as a description of the docu - ment and the privilege basis claimed. Legal professional privilege attaches to confidential communications between a lawyer and client made for the dominant purpose of giving or receiving legal advice (advice privilege) or for use in actual or con - templated litigation or legal proceedings (litigation privilege). The privilege also extends to advice pro - vided by in-house counsel, although the Court will scrutinise the independence of the lawyer’s role and the nature and character of the advice (whether legal or commercial). Communications may also be subject to without prejudice privilege, which applies when parties have attempted to settle the matters in dispute between them. Where a document or communication has been prepared for multiple purposes, the party asserting privilege must establish that the communication had the requisite dominant purpose by adducing focused and specific evidence to establish that the dominant purpose for which the document was created, or the communication was made, was for a legal purpose. Courts will consider a variety of evidence to assess the dominant purpose for which a document or commu - nication was made, including public statements and/ or media releases made by a company. An unsup - ported assertion is insufficient to establish a dominant purpose. 6.3 Leniency and Settlement Agreements In Australia, there is no general right that enables a successful or unsuccessful applicant for immunity or leniency to withhold evidence disclosed by it to the ACCC (or CDPP) when obtaining leniency in any sub - sequent court proceedings. Whether an applicant may be able to resist an applica - tion for access to or discovery of such documents will depend on the circumstances and the evidence being
sought. In the past, the ACCC has successfully resist - ed an application for access to admissions made by a competitor in securing leniency from the ACCC on the grounds that the documents related purely to credit and are not discoverable (Australian Competition & Consumer Commission v Visy Industries Holdings Pty Ltd (No 2) [2007] FCA 444, upheld on appeal: see Visy Industries Holdings Pty Ltd v Australian Competition & Consumer Commission [2007] FCAFC 147). A leni - ency applicant may be able to resist an application on the same grounds. Further, in 2009, provisions were introduced in the CCA that enable the ACCC to withhold producing to the court or another party to a proceeding “protected cartel information”, being information provided to the ACCC in confidence and relating to a possible contravention of the civil or criminal cartel provisions. The ACCC may, but cannot be compelled to, produce protected cartel information to a party to proceedings or a court or Tribunal (except with leave in the latter case). However, in deciding whether to disclose pro - tected cartel information, or to grant leave, the ACCC or the court/Tribunal (as applicable) must have regard to specific statutory factors (and not any other mat - ters). Similarly, the ACCC may, but cannot be required to, disclose protected cartel information to another party to a proceeding, and if it does, it must consider specific statutory factors (and not any other matters). The ACCC may seek to resist disclosing leniency doc - uments sought by a private litigant under subpoena based on the common law protection known as public interest immunity. A private litigant could theoretically access leniency documents from the ACCC under freedom of informa - tion (FOI) legislation. However, the ACCC has almost invariably resisted FOI production, relying on one or more of the numerous exemptions in sections 33 to 47 of the FOI Act, and the Courts have supported decisions to refuse access (eg, Telstra Australia Ltd v Australian Securities and Investments Commission [2000] AATA 71). Amongst others, this includes an exemption where access to documents might reason - ably be expected to affect the enforcement or proper administration of the law.
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