University of Sydney v ObjectiVision Pty Limited [2018] FCA 393

University of Sydney v ObjectiVision Pty Limited [2018] FCA 393

The disputed emails and KWM file notes were confidential communications created or recorded for the dominant purpose of providing legal advice to the University concerning its dispute with ObjectiVision and threatened litigation. Disclosure of the 22 November email to Mr Coles and Dr Peterson, and their attendance at the 30 November meeting, did not waive privilege because their roles with SSI and the University-related dispute, the University Code of Conduct, and the circumstances of disclosure supported an obligation and expectation of confidence, and their knowledge was desirable or necessary for the University to obtain and consider the legal advice.

Jurisdiction
Australia
Judgment Date
16 March 2018
Procedural Posture
Interlocutory Application in Federal Court Proceedings Concerning Intellectual Property Licence Agreements, Copyright and Breach of Confidence Claims / Determination of the Applicant's Interlocutory Application Dated 9 March 2018 Seeking to Set Aside a Notice to Produce on Relevance and Legal Professional Privilege Grounds During the Hearing of the Main Proceedings
Outcome
The University’s claim for legal professional privilege was upheld; the relevance argument was not determined.
Legal Topics
['legal Professional Privilege' 'waiver of Privilege' 'notice to Produce' 'confidential Communications With Third Parties' 'dominant Purpose Test' 'patents and Associated Statutes']
['privilege' 'intellectual Property' 'civil Procedure'] ['legal Professional Privilege' 'waiver of Privilege' 'notice to Produce' 'confidential Communications With Third Parties' 'dominant Purpose Test' 'patents and Associated Statutes']

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Procedural Posture

Interlocutory Application in Federal Court Proceedings Concerning Intellectual Property Licence Agreements, Copyright and Breach of Confidence Claims / Determination of the Applicant's Interlocutory Application Dated 9 March 2018 Seeking to Set Aside a Notice to Produce on Relevance and Legal Professional Privilege Grounds During the Hearing of the Main Proceedings

Legal Issues

  1. 1 ['Whether the disputed documents sought by the Notice to Produce were protected by legal professional privilege.' 'Whether privilege in the 22 November 2010 email and related emails was waived by forwarding the advice to Mr Ken Coles and Dr Chris Peterson.' 'Whether legal professional privilege attached to notes of a 30 November 2010 meeting involving external solicitors, University representatives and third parties associated with the Save Sight Institute.' 'Whether disclosure to third parties was inconsistent with maintaining the confidentiality protected by legal professional privilege.']

Ratio Decidendi

The disputed emails and KWM file notes were confidential communications created or recorded for the dominant purpose of providing legal advice to the University concerning its dispute with ObjectiVision and threatened litigation. Disclosure of the 22 November email to Mr Coles and Dr Peterson, and their attendance at the 30 November meeting, did not waive privilege because their roles with SSI and the University-related dispute, the University Code of Conduct, and the circumstances of disclosure supported an obligation and expectation of confidence, and their knowledge was desirable or necessary for the University to obtain and consider the legal advice.

Court Disposition

The University’s claim for legal professional privilege was upheld; the relevance argument was not determined.

Orders

  • ["The applicant's claim for legal professional privilege in Confidential Exhibit A1 is upheld." "The respondent pay the applicant's costs of the Interlocutory Application dated 9 March 2018."]