The University of Western Australia v Gray (No 15) [2007] FCA 423

The University of Western Australia v Gray (No 15) [2007] FCA 423

Professor Robson's cross-examination evidence explicitly linked the Advice to the formation of beliefs about factual matters relevant to pleaded limitation, laches and acquiescence issues. That created an inconsistency with maintaining confidentiality over the Advice insofar as it stated factual matters and factual inferences relied upon, but not over counsel's legal opinions about causes of action, prospects of success, options or recommendations. Production was therefore ordered only in redacted form.

Jurisdiction
Australia
Judgment Date
23 March 2007
Procedural Posture
Ruling on Waiver of Legal Professional Privilege Attaching to Counsel's Advice / Interlocutory Ruling on Production of Legal Advice Following Cross Examination
Outcome
Production of a redacted version of the legal advice ordered.
Legal Topics
['waiver of Legal Professional Privilege' 'client Legal Privilege' 'production of Legal Advice' 'redaction of Privileged Material' 'cross Examination' 'laches, Acquiescence and Limitation Defences']
['legal Professional Privilege' 'evidence' 'civil Procedure'] ['waiver of Legal Professional Privilege' 'client Legal Privilege' 'production of Legal Advice' 'redaction of Privileged Material' 'cross Examination' 'laches, Acquiescence and Limitation Defences']

Case Brief

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Procedural Posture

Ruling on Waiver of Legal Professional Privilege Attaching to Counsel's Advice / Interlocutory Ruling on Production of Legal Advice Following Cross Examination

Legal Issues

  1. 1 ["Whether answers given by Professor Robson in cross-examination amounted to waiver of legal professional privilege in respect of senior counsel's advice." 'Whether the evidence disclosed the substance of the advice or was inconsistent with maintaining confidentiality over the advice.' 'Whether any production should be limited to factual matters and inferences rather than legal opinions, prospects, options or recommendations.']

Ratio Decidendi

Professor Robson's cross-examination evidence explicitly linked the Advice to the formation of beliefs about factual matters relevant to pleaded limitation, laches and acquiescence issues. That created an inconsistency with maintaining confidentiality over the Advice insofar as it stated factual matters and factual inferences relied upon, but not over counsel's legal opinions about causes of action, prospects of success, options or recommendations. Production was therefore ordered only in redacted form.

Court Disposition

Production of a redacted version of the legal advice ordered.

Orders

  • ['The applicant is to produce to the respondents a copy of the legal advice referred to by Professor Robson in his evidence in cross examination redacted to exclude opinions as to the existence or non-existence of any cause or causes of action against any party, the prospects of success, the options open to the...