BT (Australasia) Pty Ltd v State of New South Wales & Anor (No 8) [1998] FCA 295

BT (Australasia) Pty Ltd v State of New South Wales & Anor (No 8) [1998] FCA 295

By filing and serving Mr Lopert's statement which specifically referred to the disputed privileged documents as bases for critical matters, the State impliedly consented to disclosure of the contents of those documents for the purpose of the proceedings; evidence did not establish the reference was inadvertent or mistaken, thus privilege in the two documents was lost.

Jurisdiction
Australia
Judgment Date
01 April 1998
Procedural Posture
Notice of Motion / Determination of Privilege Claim Regarding Production of Documents
Outcome
Privilege lost in disputed documents; motion granted
Legal Topics
['client Legal Privilege' 'loss of Privilege' 'disclosure' 'implied Consent' 'inadvertent Disclosure' 'waiver']
['evidence' 'civil Procedure'] ['client Legal Privilege' 'loss of Privilege' 'disclosure' 'implied Consent' 'inadvertent Disclosure' 'waiver']

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Procedural Posture

Notice of Motion / Determination of Privilege Claim Regarding Production of Documents

Legal Issues

  1. 1 ["Whether the State of New South Wales lost client legal privilege in two documents referred to in Mr Lopert's statement" "Whether reference in Mr Lopert's statement amounted to disclosure of the substance of the privileged documents" 'Whether the State impliedly consented to disclosure' 'Whether disclosure was inadvertent']

Ratio Decidendi

By filing and serving Mr Lopert's statement which specifically referred to the disputed privileged documents as bases for critical matters, the State impliedly consented to disclosure of the contents of those documents for the purpose of the proceedings; evidence did not establish the reference was inadvertent or mistaken, thus privilege in the two documents was lost.

Court Disposition

Privilege lost in disputed documents; motion granted

Orders

  • ['The State produce for inspection by BTA and BT plc the original, and provide to BTA and BT plc copies, of documents PTA 005 024 0138-0176 and PTA 006 003 0137-0375, referred to in par 24 of the statement of Mr Lopert dated 28 November 1997.' 'The State pay the costs of BTA and BT plc of the motion.']