Legal professional privilege claim rejected: Cadbury v Amcor and Visy

In Cadbury Schweppes Pty Ltd (ACN 004 551 473) v Amcor Limited (ACN 000 017 372)[2008] FCA 88 the Federal Court rejected the ACCC's claim for legal professional privilege and public interest immunity privilege in relation to 111 witness statements drafted by ACCC investigators in connection with the ACCC proceedings against Visy .

Cadbury sued Amcor following the judgment in ACCC v Visy (and Amcor joined Visy) but the ACCC sought to prevent Amcor and Visy from producing those documents to Cadbury on discovery. Its claim failed.

However, Visy’s implied undertaking, an obligation distinct from legal professional privilege, to use the documents only for a purpose relating to the ACCC proceedings may or may not still prevent production of those documents to Cadbury in these proceedings.

Privilege was upheld in respect of Amcor witness statements held by Amcor's external solicitors.