Roberts-Smith v Fairfax Media Publications Pty Limited (No 25) [2021] FCA 1558

Roberts-Smith v Fairfax Media Publications Pty Limited (No 25) [2021] FCA 1558

Privilege was waived because the respondents relied on the October Bartlett Affidavit, particularly paragraphs 9 and 10, to explain at a late stage of the trial why they decided to make a further attempt to speak to Person 56 only about the Darwan mission and to support their application for leave to issue a subpoena. That use exposed privileged reasoning and communications to scrutiny and was inconsistent with maintaining legal professional privilege over Documents 1 and 2. The respondents' voluntary partial disclosure of the 1 September 2021 email and communications about the arrangement with Person 56 also waived privilege over the remainder of that email and associated material...

Jurisdiction
Australia
Judgment Date
14 December 2021
Procedural Posture
Interlocutory Application in Defamation Proceedings Concerning Access to Documents Over Which Legal Professional Privilege Was Claimed. / Application for Leave to Inspect, Uplift and Copy Documents, During the Substantive Hearing After the Applicant's Case in Chief Had Closed and Before the Respondents' Application for Leave to Issue a Subpoena to Person 56 Was Heard.
Outcome
Application granted; privilege held to have been waived over Documents 1, 2, 3 and 17 in the First Objection Schedule and Document 12 in the Third Objection Schedule.
Legal Topics
['legal Professional Privilege' 'waiver of Privilege' 'implied Waiver' 'notice to Produce' 'subpoena' 'access to Documents']
['practice and Procedure' 'evidence' 'defamation'] ['legal Professional Privilege' 'waiver of Privilege' 'implied Waiver' 'notice to Produce' 'subpoena' 'access to Documents']

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Procedural Posture

Interlocutory Application in Defamation Proceedings Concerning Access to Documents Over Which Legal Professional Privilege Was Claimed. / Application for Leave to Inspect, Uplift and Copy Documents, During the Substantive Hearing After the Applicant's Case in Chief Had Closed and Before the Respondents' Application for Leave to Issue a Subpoena to Person 56 Was Heard.

Legal Issues

  1. 1 ['Whether the respondents had waived legal professional privilege over Documents 1, 2, 3 and 17 in the First Objection Schedule and Document 12 in the Third Objection Schedule.' "Whether paragraphs 9 and 10 of the October Bartlett Affidavit disclosed the respondents' reasoning process or privileged communications in a way inconsistent with maintaining privilege." 'Whether partial production of the 1 September 2021 email waived privilege over the redacted portions and associated material concerning the arrangement or understanding with Person 56.' 'Whether the redacted sentence in the 5 August 2021 email produced by Person 56 fell within the scope of waiver.']

Ratio Decidendi

Privilege was waived because the respondents relied on the October Bartlett Affidavit, particularly paragraphs 9 and 10, to explain at a late stage of the trial why they decided to make a further attempt to speak to Person 56 only about the Darwan mission and to support their application for leave to issue a subpoena. That use exposed privileged reasoning and communications to scrutiny and was inconsistent with maintaining legal professional privilege over Documents 1 and 2. The respondents' voluntary partial disclosure of the 1 September 2021 email and communications about the arrangement with Person 56 also waived privilege over the remainder of that email and associated material...

Court Disposition

Application granted; privilege held to have been waived over Documents 1, 2, 3 and 17 in the First Objection Schedule and Document 12 in the Third Objection Schedule.

Orders

  • ["The respondents are to produce to the Court, Documents 1, 2, 3 and 17 in the respondents' First Objection Schedule, responsive to the Notice to Produce issued by the applicant on 5 November 2021." "The applicant is granted leave to inspect, uplift and copy Documents 1, 2, 3 and 17 (in unredacted form) in the...