Mackay Sugar Co-operative Association Ltd & Ors v CSR Limited & Anor [1996] FCA 165

Mackay Sugar Co-operative Association Ltd & Ors v CSR Limited & Anor [1996] FCA 165

The brief reference by Mr Harley to having taken quick legal advice did not amount to express waiver because it did not show the necessary knowledge or intention to waive privilege. Nor was waiver implied: the statement was a narrative side reference, did not clearly disclose the substance of the advice, was not relied upon to gain an advantage, and did not put the applicants for discovery at any apparent disadvantage. The motion for further discovery was therefore dismissed.

Jurisdiction
Australia
Judgment Date
24 October 1996
Procedural Posture
Motion for Further Discovery of Legal Advice in Writing / Interlocutory Application
Outcome
Motion filed 25 September 1996 dismissed.
Legal Topics
['discovery' 'production of Documents' 'legal Professional Privilege' 'waiver of Privilege' 'express Waiver' 'implied Waiver']
['civil Procedure' 'evidence'] ['discovery' 'production of Documents' 'legal Professional Privilege' 'waiver of Privilege' 'express Waiver' 'implied Waiver']

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Procedural Posture

Motion for Further Discovery of Legal Advice in Writing / Interlocutory Application

Legal Issues

  1. 1 ['Whether legal advice in writing received by the applicant was discoverable because legal professional privilege had been waived.' 'Whether statements made by Mr Harley under cross-examination amounted to express waiver of privilege.' 'Whether waiver should be implied because fairness required disclosure of the advice referred to in evidence.' 'Whether the advice was sufficiently relevant to the issues in the proceedings.']

Ratio Decidendi

The brief reference by Mr Harley to having taken quick legal advice did not amount to express waiver because it did not show the necessary knowledge or intention to waive privilege. Nor was waiver implied: the statement was a narrative side reference, did not clearly disclose the substance of the advice, was not relied upon to gain an advantage, and did not put the applicants for discovery at any apparent disadvantage. The motion for further discovery was therefore dismissed.

Court Disposition

Motion filed 25 September 1996 dismissed.

Orders

  • ['The motion filed 25 September 1996 be dismissed.' 'The applicants for discovery, CSR Limited and New Zealand Sugar Company Limited pay the costs of the respondents to the motion to be taxed in the event of disagreement.']