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.