Truckbug Pty Limited & Anor v Rethmann Australia Environmental Services Pty Limited & Ors [2007] NSWIRComm 272

Truckbug Pty Limited & Anor v Rethmann Australia Environmental Services Pty Limited & Ors [2007] NSWIRComm 272

Although sending the advice to Mr Mansfield was a knowing and voluntary disclosure of the whole advice, it was made in the course of a confidential communication because, as the applicants' retained expert preparing a report for pending litigation, he was under an implied obligation not to disclose its contents. The expert report made no reference to the advice, Mr Mansfield neither read nor relied on it, and no inference as to the substance of the advice could be drawn from the report. Privilege was therefore not waived under either s 122(2) or s 122(4) of the Evidence Act 1995 NSW.

Jurisdiction
Australia
Judgment Date
02 November 2007
Procedural Posture
Application Under S 106 of the Industrial Relations Act 1996 / Pre Trial Notice of Motion by the First Respondent Seeking Access to a Letter of Advice Produced Under Summons to Produce
Outcome
The first respondent's notice of motion seeking access to the letter of advice was dismissed; costs were reserved.
Legal Topics
['unfair Contract' 'client Legal Privilege' 'waiver of Privilege' 'production of Documents' 'expert Evidence' 'confidential Communications']
['industrial Law' 'evidence' 'civil Procedure'] ['unfair Contract' 'client Legal Privilege' 'waiver of Privilege' 'production of Documents' 'expert Evidence' 'confidential Communications']

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Procedural Posture

Application Under S 106 of the Industrial Relations Act 1996 / Pre Trial Notice of Motion by the First Respondent Seeking Access to a Letter of Advice Produced Under Summons to Produce

Legal Issues

  1. 1 ["Whether sending counsel's letter of advice to an expert retained by the applicants was a knowing and voluntary disclosure not made in confidential circumstances under s 122(2) of the Evidence Act 1995 NSW." "Whether provision of the expert's report to the first respondent imputed waiver of privilege under s 122(4) of the Evidence Act 1995 NSW." 'Whether Rule 160 of the Industrial Relations Commission Rules permits application of Part 3.10 of the Evidence Act 1995 to pre-trial discovery and inspection of documents.']

Ratio Decidendi

Although sending the advice to Mr Mansfield was a knowing and voluntary disclosure of the whole advice, it was made in the course of a confidential communication because, as the applicants' retained expert preparing a report for pending litigation, he was under an implied obligation not to disclose its contents. The expert report made no reference to the advice, Mr Mansfield neither read nor relied on it, and no inference as to the substance of the advice could be drawn from the report. Privilege was therefore not waived under either s 122(2) or s 122(4) of the Evidence Act 1995 NSW.

Court Disposition

The first respondent's notice of motion seeking access to the letter of advice was dismissed; costs were reserved.

Orders

  • ['The notice of motion filed by the first respondent, Rethmann Australia Environmental Services Pty Limited, on 27 April 2007 is dismissed.' 'Costs are reserved.']