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Update on in-house legal privilege - Vance v McCormack
In our May update we highlighted the decision of Crispin J in Vance v McCormack who found it was essential for all in-house lawyers to hold current practising certificates if a claim for legal professional privilege over communications with these lawyers was to be sustained.
On 23 August 2005, that ACT Court of Appeal overturned that decision, finding that for privilege to attract there is no absolute requirement for an in-house lawyer to have a practising certificate as well as being admitted to practise law. The Court found that under the Evidence Act 1995 (Cth) holding a practising certificate is an important consideration, but is not determinative in relation to privilege.
While this appeal decision provides some comfort in relation to in-house counsel, the case is only authority for privilege under the Evidence Acts of the Commonwealth, New South Wales and Tasmania, which apply only to the adducing of evidence in hearings before a Federal, NSW, ACT or Tasmanian court. The case is not binding about privilege at common law, which applies more generally. Until there is an authoritative decision whether practising certificates are required under the common law, it would be prudent for in-house lawyers to hold a practising certificate.
Proposed section 77A of the TPA
Some company constitutions and other agreements under which a company indemnifies its officers may require amendment if the Trade Practices Act Amendment Bill (No 1) 2005 is enacted in its present form. It is currently not uncommon for these arrangements to indemnify officers against civil liabilities and legal costs arising from a breach of the anti-competitive conduct provisions in Part IV of the TPA.
However, under the proposed amendments, indemnities of this kind will be prohibited and void. Further, a breach of this prohibition will be an offence carrying a maximum penalty of $2750 for corporations and $550 for individuals.
C7 proceedings
Mallesons is acting for Telstra in the C7 trial, which began under extensive media coverage on 12 September 2005. The proceedings are arguably the largest with respect to competition law in Australian legal history, with 22 separate defendants and more than 50 witnesses expected to be called.
The proceedings are wide ranging and cover allegations including anti-competitive agreements and collusive bidding (section 45), misuse of market power (section 46 and Part XIB), exclusive dealing (section 47) and claims of the misuse of confidential information. Extensive lay witness evidence has been filed as well as more than 25 expert reports by economists and accountants. The trial is expected to run for a further six to nine months.
What’s happened to the Dawson Bill?
At the time of publication, the 2005 Dawson Bill has still not been passed by Parliament. We will keep you informed of any developments in our next update.