Australian Competition and Consumer Commission v Prysmian Cavi E Sistemi Energia S.R.L. (No 10) [2015] FCA 763

Australian Competition and Consumer Commission v Prysmian Cavi E Sistemi Energia S.R.L. (No 10) [2015] FCA 763

The tender and use of the privileged letter by the second respondent was inconsistent with maintaining privilege over related communications, and constituted waiver of privilege over associated material regarding discovery obligations; accordingly, all such communications must be discovered and produced.

Parties
Applicant: AUSTRALIAN COMPETITION AND CONSUMER COMMISSION; First Respondent: PRYSMIAN CAVI E SISTEMI ENERGIA S.R.L. (FORMERLY PIRELLI CAVI E SISTEMI ENERGIA S.P.A.); Second Respondent: NEXANS SA RCS PARIS 393 525 852
Jurisdiction
Australia
Judgment Date
23 July 2015
Procedural Posture
Interlocutory Application / Post Trial Evidence and Discovery Issues
Outcome
Privilege waived; order for associated material to be produced.
Legal Topics
Legal Professional Privilege, Implied Waiver, Discovery Obligations
Practice and Procedure Evidence Legal Professional Privilege Implied Waiver Discovery Obligations

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Parties

AUSTRALIAN COMPETITION AND CONSUMER COMMISSION

Applicant

PRYSMIAN CAVI E SISTEMI ENERGIA S.R.L. (FORMERLY PIRELLI CAVI E SISTEMI ENERGIA S.P.A.)

First Respondent

NEXANS SA RCS PARIS 393 525 852

Second Respondent

Procedural Posture

Interlocutory Application / Post Trial Evidence and Discovery Issues

Legal Issues

  1. 1 Whether privilege was waived over associated material following tender of a solicitor's advice letter regarding discovery obligations
  2. 2 If the scope of implied waiver extends to all communications relating to discovery between the second respondent and its solicitors

Ratio Decidendi

The tender and use of the privileged letter by the second respondent was inconsistent with maintaining privilege over related communications, and constituted waiver of privilege over associated material regarding discovery obligations; accordingly, all such communications must be discovered and produced.

Court Disposition

Privilege waived; order for associated material to be produced.

Orders

  • The second respondent discover and produce all documents recording or evidencing any communications between Clayton Utz, Nexans and/or its representatives, including Mr Noonan and Ms Poly, regarding the scope of Nexans' discovery obligations in this proceeding on or before 4:00 pm on Tuesday, 28 July 2015.