Pegasus Gold Inc v Bateman Project Engineering Pty Ltd [1999] FCA 1764

Pegasus Gold Inc v Bateman Project Engineering Pty Ltd [1999] FCA 1764

The limited disclosure in Mr Goldin's affidavit about the course of failed negotiations for a joint litigation agreement was not sufficient, as a matter of common law fairness, to waive the privilege that would otherwise attach to documents containing or evidencing communications between the applicant groups. The case for waiver was weaker because the documents were sought from PGA, a common interest party that did not itself participate in the disclosure said to constitute waiver. Accordingly, the notice to produce was set aside insofar as it required production by the third applicant.

Jurisdiction
Australia
Judgment Date
06 December 1999
Procedural Posture
Application to Set Aside a Notice to Produce in Federal Court Proceedings / Interlocutory or Ancillary Application Heard and Determined on 6 December 1999
Outcome
Application by the third applicant to set aside the notice to produce succeeded.
Legal Topics
['notice to Produce' 'common Interest Privilege' 'waiver of Privilege' 'implied Waiver' 'consolidated Proceedings']
['civil Procedure' 'evidence' 'legal Professional Privilege'] ['notice to Produce' 'common Interest Privilege' 'waiver of Privilege' 'implied Waiver' 'consolidated Proceedings']

Case Brief

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Procedural Posture

Application to Set Aside a Notice to Produce in Federal Court Proceedings / Interlocutory or Ancillary Application Heard and Determined on 6 December 1999

Legal Issues

  1. 1 ['Whether the notice to produce dated 24 November 1999 should be set aside insofar as it required production of documents by the third applicant.' 'Whether documents relating to attempts by the applicant groups to reach a joint litigation agreement were protected by common interest privilege.' 'Whether any privilege had been waived by statements in the affidavit of Harrison J. Goldin sworn on 16 November 1999.' 'Whether implied waiver could affect privilege held by a common interest party that did not itself make the disclosure said to constitute waiver.']

Ratio Decidendi

The limited disclosure in Mr Goldin's affidavit about the course of failed negotiations for a joint litigation agreement was not sufficient, as a matter of common law fairness, to waive the privilege that would otherwise attach to documents containing or evidencing communications between the applicant groups. The case for waiver was weaker because the documents were sought from PGA, a common interest party that did not itself participate in the disclosure said to constitute waiver. Accordingly, the notice to produce was set aside insofar as it required production by the third applicant.

Court Disposition

Application by the third applicant to set aside the notice to produce succeeded.

Orders

  • ['The notice to produce dated 24 November 1999 issued by the respondents, insofar as it requires production of documents by the third applicant, be set aside.']