Novus Australia Energy Company v Gulf Petroluem (Australia) [2001] NSWSC 579

Novus Australia Energy Company v Gulf Petroluem (Australia) [2001] NSWSC 579

The 27 March 2000 letter was an expression of Gulf's own view about the agreement and governing legislation and of Gulf's opinion about the effect of the legal advice; it did not knowingly and voluntarily disclose the substance of the legal advice within s 122 of the Evidence Act 1995. The correspondence was not settlement negotiations for s 131 purposes, and in any event s 131 was not applicable to the relevant discovery and production questions under the rules. If common law waiver principles applied, Gulf's conduct was not inconsistent with maintaining privilege and no unfairness required production. Client legal privilege was therefore not lost.

Jurisdiction
Australia
Judgment Date
12 July 2001
Procedural Posture
Practice and Procedure Application Concerning Production of Documents and Claimed Client Legal Privilege / Notice of Motion Filed 21 March 2001 Seeking Production for Inspection in Pre Trial Procedure
Outcome
Application dismissed with costs.
Legal Topics
['discovery' 'production of Documents' 'client Legal Privilege' 'waiver of Privilege' 'settlement Negotiations' 'part 3.10 Division 1 of the Evidence Act 1995']
['civil Procedure' 'evidence' 'legal Professional Privilege'] ['discovery' 'production of Documents' 'client Legal Privilege' 'waiver of Privilege' 'settlement Negotiations' 'part 3.10 Division 1 of the Evidence Act 1995']

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Procedural Posture

Practice and Procedure Application Concerning Production of Documents and Claimed Client Legal Privilege / Notice of Motion Filed 21 March 2001 Seeking Production for Inspection in Pre Trial Procedure

Legal Issues

  1. 1 ['Whether the defendants were required to produce for inspection documents recording the detailed legal analysis from Australian counsel or the advice of Bennett Jones referred to in the 27 March 2000 facsimile.' 'Whether the reference to legal advice in the 27 March 2000 facsimile was a knowing and voluntary disclosure of the substance of the advice under s 122 of the Evidence Act 1995.' 'Whether the correspondence fell within s 131 of the Evidence Act 1995 as settlement negotiations.' 'Whether, if common law principles applied, Gulf had waived legal professional privilege by implied or imputed waiver.']

Ratio Decidendi

The 27 March 2000 letter was an expression of Gulf's own view about the agreement and governing legislation and of Gulf's opinion about the effect of the legal advice; it did not knowingly and voluntarily disclose the substance of the legal advice within s 122 of the Evidence Act 1995. The correspondence was not settlement negotiations for s 131 purposes, and in any event s 131 was not applicable to the relevant discovery and production questions under the rules. If common law waiver principles applied, Gulf's conduct was not inconsistent with maintaining privilege and no unfairness required production. Client legal privilege was therefore not lost.

Court Disposition

Application dismissed with costs.

Orders

  • ['The application is dismissed.' "The applicants are to pay the respondents' costs of the application."]