Visy Industries Holdings Pty Limited v Australian Competition and Consumer Commission

(2007) 161 FCR 122; [2007] FCAFC 147

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Interrogate

Catchwords

1. Practice and Procedure
2. › Discovery
3. › Legal professional privilege
4. › Litigation privilege
5. › Reasonable anticipation of litigation
6. › Whether litigation reasonably anticipated when senior officers formed view proceedings should be commenced but formal resolution by Commissioners not yet made
7. › Whether 'real prospect' or 'more likely than not' test applies
8. › Trade Practices Act 1974 (Cth), Part IV
1. Practice and Procedure
2. › Discovery
3. › Legal professional privilege
4. › Dominant purpose test
5. › Whether documents created for dominant purpose of litigation or investigation
6. › Documents created by regulatory authority after reasonable anticipation of litigation
1. Practice and Procedure
2. › Discovery
3. › Documents relating only to credit
4. › Whether documents concerning immunity or leniency arrangements with witnesses are discoverable
5. › Whether credit documents relate to matters in question on the pleadings
6. › Federal Court of Australia Rules 1979 (Cth), O 15 r 2(3)
1. Practice and Procedure
2. › Pleadings
3. › Amendment of defence
4. › Whether leave required to amend
5. › Whether paragraphs raising collateral issues should be struck out
6. › Federal Court of Australia Rules 1979 (Cth), O 13 r 3, r 4

Quick Take

For regulatory bodies like the ACCC, the reasonable anticipation of litigation for the purpose of legal professional privilege can be formed by senior officers charged with gathering evidence and recommending proceedings, even before the formal decision-makers resolve to commence proceedings. Documents relating to immunity or leniency arrangements with cooperating witnesses are not discoverable as they relate only to credit, though they may be obtainable by subpoena at trial. The competing tests for 'reasonable anticipation of litigation' — 'real prospect' versus 'more likely than not' — remain unresolved, though recent authority favours the lower 'real prospect' threshold.