BP Australia Pty Limited v Nyran Pty Limited [2002] FCA 1302

BP Australia Pty Limited v Nyran Pty Limited [2002] FCA 1302

The common law, not Evidence Act 1995 (Cth) s 122, governed the interlocutory inspection issue because no adducing of evidence was involved. The applicant discharged its onus of proving privilege after filing affidavits from the lawyers involved. However, the Court was bound by Telstra and Perpetual Trustees: by pleading state of mind in paragraphs 12B, 20, 22, 23A and 27A of the Further Amended Statement of Claim, and in circumstances where the evidence showed contemporaneous legal advice likely to have contributed to that state of mind, the applicant was taken to have waived privilege by imputation over relevant legal advice. The waiver extended only to material bearing on the pleaded...

Jurisdiction
Australia
Judgment Date
22 October 2002
Procedural Posture
Federal Court Civil Proceeding Concerning Production of Documents and Legal Professional Privilege / Interlocutory Motion by the Respondent for Production for Inspection of Documents and Related Privilege Issues
Outcome
The applicant was held to have discharged the onus of proving privilege, but privilege was held to be waived by imputation for relevant contemporaneous legal advice bearing on the pleaded state of mind. The Court indicated that the Fort Dodge procedure should be followed to expose waived material while masking...
Legal Topics
['legal Professional Privilege' 'imputed Waiver' 'production and Inspection of Documents' 'pleading of State of Mind' 'evidence Act 1995 (cth) S 122' 'federal Court Rules O15 R 6']
['evidence' 'civil Procedure'] ['legal Professional Privilege' 'imputed Waiver' 'production and Inspection of Documents' 'pleading of State of Mind' 'evidence Act 1995 (cth) S 122' 'federal Court Rules O15 R 6']

Case Brief

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Procedural Posture

Federal Court Civil Proceeding Concerning Production of Documents and Legal Professional Privilege / Interlocutory Motion by the Respondent for Production for Inspection of Documents and Related Privilege Issues

Legal Issues

  1. 1 ['Whether the applicant had discharged the onus of proving legal professional privilege over documents in issue.' 'Whether imputed waiver of legal professional privilege was governed by Evidence Act 1995 (Cth) s 122 or by the common law in the context of an interlocutory request for inspection of documents.' 'Whether the applicant, by pleading state of mind in paragraphs 12B, 20, 22, 23A and 27A of the Further Amended Statement of Claim, had waived privilege by imputation over relevant legal advice.' 'Whether there was evidence that legal advice was likely to have contributed to the pleaded state of mind.' 'What procedure should be adopted to give effect to any imputed waiver while preserving any remaining privileged material.']

Ratio Decidendi

The common law, not Evidence Act 1995 (Cth) s 122, governed the interlocutory inspection issue because no adducing of evidence was involved. The applicant discharged its onus of proving privilege after filing affidavits from the lawyers involved. However, the Court was bound by Telstra and Perpetual Trustees: by pleading state of mind in paragraphs 12B, 20, 22, 23A and 27A of the Further Amended Statement of Claim, and in circumstances where the evidence showed contemporaneous legal advice likely to have contributed to that state of mind, the applicant was taken to have waived privilege by imputation over relevant legal advice. The waiver extended only to material bearing on the pleaded...

Court Disposition

The applicant was held to have discharged the onus of proving privilege, but privilege was held to be waived by imputation for relevant contemporaneous legal advice bearing on the pleaded state of mind. The Court indicated that the Fort Dodge procedure should be followed to expose waived material while masking...

Orders

  • ['The solicitor for the applicant should inspect the relevant documents and provide copies exposing material in relation to which privilege has been waived while masking material that remains subject to legal professional privilege.' 'If there is doubt about whether material falls within the waiver, the matter...