Hammer, Andrew & Ors v Sunman, Anthony & Anor [1998] FCA 1254

Hammer, Andrew & Ors v Sunman, Anthony & Anor [1998] FCA 1254

Although the applicants' misleading or deceptive conduct claim put their state of mind and reliance in issue, the material before the Court did not justify finding implied consent or waiver of client legal privilege over counsel's advice. The disclosed correspondence revealed questions and surrounding circumstances, but not the answers or substance of advice, and the letter of 24 February 1994 could be properly understood without production of the advice. The second respondent was therefore not entitled to the discovery and production orders sought.

Jurisdiction
Australia
Judgment Date
02 October 1998
Procedural Posture
Motion Seeking Orders Compelling Discovery and Production for Inspection of Records of Advice Given by Counsel to the Applicants / Interlocutory Motion
Outcome
The second respondent's motion was dismissed.
Legal Topics
['evidence Act 1995 (cth) Ss 122 and 126' 'implied Consent to Disclosure' 'waiver of Client Legal Privilege' 'discovery and Production for Inspection' 'state of Mind and Reliance on Representations']
['evidence' 'civil Procedure' 'client Legal Privilege' 'misleading or Deceptive Conduct'] ['evidence Act 1995 (cth) Ss 122 and 126' 'implied Consent to Disclosure' 'waiver of Client Legal Privilege' 'discovery and Production for Inspection' 'state of Mind and Reliance on Representations']

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Procedural Posture

Motion Seeking Orders Compelling Discovery and Production for Inspection of Records of Advice Given by Counsel to the Applicants / Interlocutory Motion

Legal Issues

  1. 1 ['Whether the applicants were to be treated for the purposes of s 122(1) of the Evidence Act 1995 (Cth) as consenting to production of records of advice given by counsel.' 'Whether production of the documents was reasonably necessary under s 126 of the Evidence Act 1995 (Cth) to enable a proper understanding of the letter to counsel of 24 February 1994.' "Whether disclosure of questions asked of counsel and surrounding correspondence amounted to disclosure of the substance of counsel's advice or implied waiver of client legal privilege."]

Ratio Decidendi

Although the applicants' misleading or deceptive conduct claim put their state of mind and reliance in issue, the material before the Court did not justify finding implied consent or waiver of client legal privilege over counsel's advice. The disclosed correspondence revealed questions and surrounding circumstances, but not the answers or substance of advice, and the letter of 24 February 1994 could be properly understood without production of the advice. The second respondent was therefore not entitled to the discovery and production orders sought.

Court Disposition

The second respondent's motion was dismissed.

Orders

  • ["The second respondent's motion is dismissed."]