Nine Films & Television Pty Ltd v Ninox Television Limited [2005] FCA 356

Nine Films & Television Pty Ltd v Ninox Television Limited [2005] FCA 356

Mere reference to obtaining or acting upon legal advice, including in media or threat correspondence, is insufficient to constitute waiver of privilege unless the substance or content of the advice is clearly disclosed. Hearsay and equivocal references are not adequate for waiver. Privilege is not lost by reason of pleadings referring to intent or justification unless the legal advice is put directly in issue.

Jurisdiction
Australia
Judgment Date
05 April 2005
Procedural Posture
Interlocutory Application Discovery/privilege Ruling / Ruling on Privilege in Course of Proceedings
Outcome
No waiver of legal professional privilege found; privilege upheld.
Legal Topics
['legal Professional Privilege' 'waiver of Privilege' 'copyright' 'discovery' 'threats of Legal Proceedings']
['evidence' 'intellectual Property' 'trade Practices'] ['legal Professional Privilege' 'waiver of Privilege' 'copyright' 'discovery' 'threats of Legal Proceedings']

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Procedural Posture

Interlocutory Application Discovery/privilege Ruling / Ruling on Privilege in Course of Proceedings

Legal Issues

  1. 1 ["Whether legal professional privilege attaching to senior counsel's advice to first and third respondents has been waived by conduct or pleadings" 'Whether statements to media or correspondence constitute waiver of legal professional privilege' 'Whether pleadings concerning intent or justification affect the privilege']

Ratio Decidendi

Mere reference to obtaining or acting upon legal advice, including in media or threat correspondence, is insufficient to constitute waiver of privilege unless the substance or content of the advice is clearly disclosed. Hearsay and equivocal references are not adequate for waiver. Privilege is not lost by reason of pleadings referring to intent or justification unless the legal advice is put directly in issue.

Court Disposition

No waiver of legal professional privilege found; privilege upheld.

Orders

  • ['Declaration that there has been no waiver of legal professional privilege in relation to the advice and recommendations provided to the First or Third Respondents by senior counsel.' "Items in Category 21 of the Applicants' List of Documents filed on 22 February 2005 refused." "Applicants to pay the Respondents'...