Zomojo Pty Ltd v Hurd [2012] FCA 1175

Zomojo Pty Ltd v Hurd [2012] FCA 1175

Legal professional privilege continued to attach to Document 2 because, upon the Court reading it, the legal advice contained in it did not deal with any of the matters referred to in Mr Hurd's 10 February 2011 email, so there had been no waiver on the basis alleged. The respondents were therefore not required to produce Document 2. Although the applicant failed to obtain access, the respondents were ordered to pay the applicant's costs of the privilege hearing because their affidavit induced the mistaken premise on which the applicant pursued access.

Jurisdiction
Australia
Judgment Date
23 October 2012
Procedural Posture
Practice and Procedure; Notice to Produce; Legal Professional Privilege; Costs / Hearing Before Duty Judge of Respondents' Claim of Legal Professional Privilege During Trial
Outcome
Respondents not required to produce Document 2; respondents ordered to pay the applicant's costs of and incidental to the privilege hearing; liberty to apply.
Legal Topics
['notice to Produce' 'legal Professional Privilege' 'waiver of Privilege' 'production of Documents' 'costs of Privilege Hearing']
['practice and Procedure' 'evidence' 'costs'] ['notice to Produce' 'legal Professional Privilege' 'waiver of Privilege' 'production of Documents' 'costs of Privilege Hearing']

Case Brief

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Procedural Posture

Practice and Procedure; Notice to Produce; Legal Professional Privilege; Costs / Hearing Before Duty Judge of Respondents' Claim of Legal Professional Privilege During Trial

Legal Issues

  1. 1 ["Whether legal professional privilege attached to the solicitor's letter dated 31 January 2011 identified as Document 2." "Whether privilege over Document 2 had been waived by disclosure of the substance of the legal advice in Mr Hurd's email of 10 February 2011." "Whether the respondents should pay the applicant's costs of and incidental to the hearing of the privilege claim."]

Ratio Decidendi

Legal professional privilege continued to attach to Document 2 because, upon the Court reading it, the legal advice contained in it did not deal with any of the matters referred to in Mr Hurd's 10 February 2011 email, so there had been no waiver on the basis alleged. The respondents were therefore not required to produce Document 2. Although the applicant failed to obtain access, the respondents were ordered to pay the applicant's costs of the privilege hearing because their affidavit induced the mistaken premise on which the applicant pursued access.

Court Disposition

Respondents not required to produce Document 2; respondents ordered to pay the applicant's costs of and incidental to the privilege hearing; liberty to apply.

Orders

  • ["The respondents not be required to produce the document numbered 2 in the applicant's notice to produce dated 22 October 2012." "The respondents pay the applicant's costs of and incidental to the hearing of the respondents' claim of legal professional privilege in relation to the document numbered 2 in the...