Australian Competition and Consumer Commission v Cadbury Schweppes Pty Ltd

(2009) 174 FCR 547; [2009] FCAFC 32

Full Court of the Federal Court

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For Australian Law.

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Interrogate

Catchwords

1. Privilege
2. › Legal professional privilege
3. › Litigation privilege
4. › Finalised proofs of evidence
5. › Whether litigation privilege attaches to documents created for purpose of providing to opposing party and in fact so provided
6. › Rationale of litigation privilege
7. › Distinction between litigation privilege and implied undertaking
1. Privilege
2. › Legal professional privilege
3. › Waiver of privilege
4. › Filing and service of finalised proofs of evidence
5. › Whether filing and service without more constitutes complete waiver
6. › Mann v Carnell inconsistency test
7. › Whether limited waiver available
1. Privilege
2. › Legal professional privilege
3. › Litigation privilege
4. › Distinction between privilege and implied undertaking
5. › Harman implied undertaking
6. › Whether implied undertaking supplies confidentiality sufficient to support litigation privilege
1. Practice and Procedure
2. › Leave to appeal
3. › Interlocutory ruling
4. › Matter of public importance
5. › Possible loss of substantive right

Quick Take

Finalised proofs of evidence or witness statements prepared for service on an opposing party do not attract litigation privilege, and filing and service of such documents constitutes a complete waiver of any privilege that may have existed; the Harman implied undertaking, not privilege, is the appropriate mechanism for protecting such documents from collateral use.