The Adelaide Steamship Co Ltd & Anor v Spalvins, Janis Gunars & Ors [1998] FCA 144

The Adelaide Steamship Co Ltd & Anor v Spalvins, Janis Gunars & Ors [1998] FCA 144

The common law governing client legal privilege in ancillary processes in Evidence Act jurisdictions should be adapted by reference to Part 3.10 Division 1 of the Evidence Act 1995 (Cth), so the test for waiver was whether the substance of the privileged communication or document had been disclosed. The references in paragraphs 9 and 14 of Mr Dugan's affidavit did not disclose the substance of the advice, but paragraphs 29 and 30 disclosed the substance of Mr Whitington QC's advice that matters relating to other value ought to be pleaded in the statement of claim rather than by way of reply. Privilege was therefore lost only to that limited topic, and the primary judge's broader orders...

Jurisdiction
Australia
Judgment Date
02 March 1998
Procedural Posture
Appeal Concerning Client Legal Privilege, Waiver and Subpoenas for Production of Documents in Ancillary Proceedings / Application for Leave to Appeal and Appeal From Orders of a Judge of the Federal Court of Australia
Outcome
Leave to appeal granted; appeal allowed in part.
Legal Topics
['client Legal Privilege' 'legal Professional Privilege' 'waiver' 'subpoena for Production' 'ancillary Processes' 'evidence Act 1995 (cth)']
['evidence' 'civil Procedure'] ['client Legal Privilege' 'legal Professional Privilege' 'waiver' 'subpoena for Production' 'ancillary Processes' 'evidence Act 1995 (cth)']

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Procedural Posture

Appeal Concerning Client Legal Privilege, Waiver and Subpoenas for Production of Documents in Ancillary Proceedings / Application for Leave to Appeal and Appeal From Orders of a Judge of the Federal Court of Australia

Legal Issues

  1. 1 ['Whether questions relating to loss of legal professional privilege in ancillary processes should be determined by common law principles as developed to date or by reference to provisions of the Evidence Act 1995 (Cth).' 'Whether the ASC had waived client legal privilege in legal advices or communications referred to in affidavits filed in support of a late application to amend the statement of claim.' "Whether the references in paragraphs 9, 14 and 27 to 30 of Mr Dugan's affidavit disclosed the substance of privileged legal advice."]

Ratio Decidendi

The common law governing client legal privilege in ancillary processes in Evidence Act jurisdictions should be adapted by reference to Part 3.10 Division 1 of the Evidence Act 1995 (Cth), so the test for waiver was whether the substance of the privileged communication or document had been disclosed. The references in paragraphs 9 and 14 of Mr Dugan's affidavit did not disclose the substance of the advice, but paragraphs 29 and 30 disclosed the substance of Mr Whitington QC's advice that matters relating to other value ought to be pleaded in the statement of claim rather than by way of reply. Privilege was therefore lost only to that limited topic, and the primary judge's broader orders...

Court Disposition

Leave to appeal granted; appeal allowed in part.

Orders

  • ['Leave to appeal be granted.' 'The appeal be allowed in part.' 'The orders of 1 August 1997 be set aside.' 'The Australian Securities Commission produce to the Court within 14 days any document containing the advices given by Mr Whitington QC to the Commission in about August/September 1996 as to the course to be...