DSE (Holdings) Pty Limited v Intertan Inc [2003] FCA 384

DSE (Holdings) Pty Limited v Intertan Inc [2003] FCA 384

Mere denial of an assertion by the party claiming privilege does not waive privilege; only a positive act putting the nature or contents of the privileged communication in issue constitutes waiver. Implied waiver, where established by pleading state of mind, is limited to communications materially contributing to formation of that state of mind and does not extend to later legal advice concerning preparation of the case.

Jurisdiction
Australia
Judgment Date
30 April 2003
Procedural Posture
Interlocutory Application / Ruling on Notices of Motion
Outcome
Disposal of first paragraphs of both notices of motion—both dismissed; balance stood over.
Legal Topics
['legal Professional Privilege' 'implied Waiver' 'pleadings' 'state of Mind' 'discovery']
['evidence' 'civil Procedure'] ['legal Professional Privilege' 'implied Waiver' 'pleadings' 'state of Mind' 'discovery']

Case Brief

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Procedural Posture

Interlocutory Application / Ruling on Notices of Motion

Legal Issues

  1. 1 ['Whether respondents waived legal professional privilege by denying allegations as to their state of mind' 'Scope of implied waiver of privilege arising from pleadings' 'Temporal extent of waiver for legal advice relevant to state of mind']

Ratio Decidendi

Mere denial of an assertion by the party claiming privilege does not waive privilege; only a positive act putting the nature or contents of the privileged communication in issue constitutes waiver. Implied waiver, where established by pleading state of mind, is limited to communications materially contributing to formation of that state of mind and does not extend to later legal advice concerning preparation of the case.

Court Disposition

Disposal of first paragraphs of both notices of motion—both dismissed; balance stood over.

Orders

  • ['Paragraph numbered one in the notice of motion filed by the applicant, dated 10 February 2003 and filed in Court on 11 February 2003, be dismissed.' 'Paragraph numbered one in the notice of motion filed by the respondent, dated 10 February 2003 and filed in Court on 11 February 2003, be dismissed.' 'The balance of...