The Service of Witness Statements and Litigation Privilege: ACCC v Cadbury
| DOI | 10.1350/ijep.2009.13.4.334 |
| Date | 01 November 2009 |
| Published date | 01 November 2009 |
| Subject Matter | Article |
CASE NOTE
SERVICE OF WITNESS STATEMENTS AND LITIGATION PRIVILEGE:ACCCvCADBURY
The service of witness statements and
litigation privilege: ACCC vCadbury
By Jason Pobjoy*
Research student, Gonville and Caius College, University of
Cambridge
Keywords Legal professional privilege; Litigation privilege; Waiver; Witness
statements; Australia
n 20 March 2009 the Full Federal Court of Australia (Mansfield, Kenny
and Middleton JJ) handed down judgment in Australian Competition and
Consumer Commission vCadbury Schweppes Pty Ltd.1The decision raises
important issues concerning the operation of litigation privilege in circumstances
where the final version of a witness statement has been served upon an opponent
in civil litigation. The law relating to the interaction between legal professional
privilege and witness statements remains contentious.2The decision in ACCC v
Cadbury has the potential to provide some clarity.
The decision concerns access by Cadbury Schweppes Pty Ltd (‘Cadbury’) to 111
witness statements3that the Australian Competition and Consumer Commission
(‘the Commission’) served on Visy in the course of its prosecution against it.4
Cadbury brought proceedings in the Federal Court against Amcor, seeking
damages arising from the collusive behaviour of Amcor and Visy.5Cadbury sought
to rely on the output of the Commission’s investigations to assist it in proving
liability in its own proceeding against Amcor. In the Cadbury Proceeding the
Commission claimed that legal professional privilege subsisted in the 111 witness
statements and, further, that public interest immunity prevented Cadbury from
inspecting certain statements made by former or present Amcor employees. The
‘public interest’ claimed by the Commission was that whistleblowers, such as
doi:10.1350/ijep.2009.13.4.334
336 (2009) 13 E&P 336–341 THE INTERNATIONAL JOURNAL OF EVIDENCE & PROOF
1 [2009] FCAFC 32 (hereafter ‘ACCC vCadbury’).
2 See, e.g., C. Tapper, Cross & Tapper on Evidence (Oxford University Press: Oxford, 2007) 484; I. Grainger,
‘Witness Statements—a New Privilege?’ 145 New Law Journal 961, 1062.
3 In the Australian context, these are commonly referred to as ‘proofs of evidence’.
4 Federal Court proceeding number 1650 of 2005 (hereafter ‘ACCC Proceeding’).
5 Federal Court proceeding number VID 1377 of 2006 (hereafter ‘Cadbury Proceeding’).
O
* Email: jason.pobjoy@gmail.com. The author wishes to thank Professor Colin Tapper, Professor
Adrian Zuckerman and Mr John Waters for comments on earlier drafts of this note.
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