Data Access Corporation v. Powerflex Services P/L & Ors [1994] FCA 751

Data Access Corporation v. Powerflex Services P/L & Ors [1994] FCA 751

The raising of the issue of flagrancy in pleadings makes the privileged legal advice relevant, and privilege was also waived by respondents' conduct, namely misrepresenting the legal advice to third parties furthering sales and countering concerns about copyright infringement. The respondents must produce the documents for inspection.

Parties
Applicant: Data Access Corporation; First Respondent: Powerflex Services Pty Ltd; Second Respondent: Powerflex Corporation Pty Ltd; Third Respondent: David Meredith Bennett; Fourth Respondent: Margaret Ann Bennett
Jurisdiction
Australia
Judgment Date
11 October 1994
Procedural Posture
Application for Discovery/inspection in Copyright Infringement Proceedings / Interlocutory
Outcome
Application granted; order varied
Legal Topics
Legal Professional Privilege, Copyright Infringement, Waiver of Privilege, Discovery of Documents, Flagrancy of Infringement
Intellectual Property Civil Procedure Legal Professional Privilege Copyright Infringement Waiver of Privilege Discovery of Documents Flagrancy of Infringement

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Parties

Data Access Corporation

Applicant

Powerflex Services Pty Ltd

First Respondent

Powerflex Corporation Pty Ltd

Second Respondent

David Meredith Bennett

Third Respondent

Margaret Ann Bennett

Fourth Respondent

Procedural Posture

Application for Discovery/inspection in Copyright Infringement Proceedings / Interlocutory

Legal Issues

  1. 1 Whether legal professional privilege applies to certain documents passing between solicitor and client
  2. 2 Whether privilege has been lost through relevance pleaded into issue
  3. 3 Whether privilege has been waived through conduct (misrepresentation to third parties)

Ratio Decidendi

The raising of the issue of flagrancy in pleadings makes the privileged legal advice relevant, and privilege was also waived by respondents' conduct, namely misrepresenting the legal advice to third parties furthering sales and countering concerns about copyright infringement. The respondents must produce the documents for inspection.

Court Disposition

Application granted; order varied

Orders

  • Respondents to produce for inspection by applicant's solicitors the documents referred to in their Affidavit of Particular Discovery (David Meredith Bennett sworn 19 July 1994, schedule 1, numbered 11)
  • Order referred to in 1 stayed for seven days