Media Ocean Limited v Optus Mobile Pty Limited (No 10) [2010] FCA 1348

Media Ocean Limited v Optus Mobile Pty Limited (No 10) [2010] FCA 1348

Privilege over communications disclosed to Pivotel and Hometown was waived because the applicants failed to establish a sufficient common interest: the contractual arrangements with Pivotel and Hometown left a real potential for conflict and commercially adverse interests. By contrast, Baycall's payment rights were inextricably tied to Mediatel receiving payment, so Baycall and the Media Ocean group shared a common interest in the litigation and related advice, and disclosure to Baycall did not waive privilege. Some emails were not privileged because they did not disclose legal advice or fall within the relevant third party communication category. Applying those conclusions, only...

Jurisdiction
Australia
Judgment Date
03 December 2010
Procedural Posture
Practice and Procedure; Discovery and Inspection Dispute Concerning Legal Professional Privilege / Interlocutory Notice of Motion by Optus Seeking Inspection of Documents Over Which the Applicants Claimed Privilege
Outcome
Optus's motion was allowed in part; the applicants were ordered to make specified documents available for inspection and costs were reserved.
Legal Topics
['discovery and Inspection' 'third Party Communications' 'waiver of Privilege' 'common Interest Privilege' 'confidentiality' 'misleading and Deceptive Conduct']
['practice and Procedure' 'evidence' 'legal Professional Privilege' 'trade Practices'] ['discovery and Inspection' 'third Party Communications' 'waiver of Privilege' 'common Interest Privilege' 'confidentiality' 'misleading and Deceptive Conduct']

Case Brief

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Procedural Posture

Practice and Procedure; Discovery and Inspection Dispute Concerning Legal Professional Privilege / Interlocutory Notice of Motion by Optus Seeking Inspection of Documents Over Which the Applicants Claimed Privilege

Legal Issues

  1. 1 ['Whether communications involving Pivotel, Hometown or Baycall were privileged as communications with third parties made for the purpose of obtaining legal advice or for anticipated or commenced litigation.' 'Whether any legal professional privilege in the disputed email chains had been waived by disclosure to third parties.' 'Whether the Media Ocean group shared a common interest with Pivotel, Hometown or Baycall sufficient to avoid waiver.' 'Which disputed documents should be made available for inspection by the respondents.']

Ratio Decidendi

Privilege over communications disclosed to Pivotel and Hometown was waived because the applicants failed to establish a sufficient common interest: the contractual arrangements with Pivotel and Hometown left a real potential for conflict and commercially adverse interests. By contrast, Baycall's payment rights were inextricably tied to Mediatel receiving payment, so Baycall and the Media Ocean group shared a common interest in the litigation and related advice, and disclosure to Baycall did not waive privilege. Some emails were not privileged because they did not disclose legal advice or fall within the relevant third party communication category. Applying those conclusions, only...

Court Disposition

Optus's motion was allowed in part; the applicants were ordered to make specified documents available for inspection and costs were reserved.

Orders

  • ['The applicants make available to the respondents for inspection the following documents in exhibit NTM-1 to the affidavit of Nathan Thomas Mattock sworn 18 June 2010: the email from Mike Charlesworth to Robert Sakker dated 8 January 2009 behind tabs 1 and 2; the email chains that appear behind tabs 3, 4 and 5; the...