Sunland Group Limited v Gold Coast City Council [2021] FCA 1473

Sunland Group Limited v Gold Coast City Council [2021] FCA 1473

Where a party expressly pleads and adduces evidence that it relied on the whole content of a document (including redacted/privileged content) to establish its state of mind or reliance in support of its case, this conduct is inconsistent with maintenance of privilege in those parts, and an implied waiver of legal professional privilege arises as to those sections, but not automatically as to other documents where such inconsistency is not shown.

Parties
First Applicant: Sunland Group Limited; Second Applicant: Sunland Developments No 22 Pty Ltd; Respondent: Gold Coast City Council
Jurisdiction
Australia
Judgment Date
23 November 2021
Procedural Posture
Interlocutory Application / Interlocutory – Application for Production of Documents / Waiver of Privilege
Outcome
Orders made – Respondent (Council) succeeds as to production of unredacted due diligence reports (para 1 of application); application as to other documents (para 2) dismissed; costs reserved.
Legal Topics
Legal Professional Privilege, Implied Waiver, Discovery of Documents, Misleading or Deceptive Conduct, Corporations – Reliance and Causation
Corporations Law Civil Procedure Legal Professional Privilege Implied Waiver Discovery of Documents Misleading or Deceptive Conduct Corporations – Reliance and Causation

Case Brief

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Parties

Sunland Group Limited

First Applicant

Sunland Developments No 22 Pty Ltd

Second Applicant

Gold Coast City Council

Respondent

Procedural Posture

Interlocutory Application / Interlocutory – Application for Production of Documents / Waiver of Privilege

Legal Issues

  1. 1 Whether Sunland impliedly waived legal professional privilege in redacted sections of due diligence reports and other documents by pleading and adducing reliance on them for the state of mind of directors in relation to the acquisition.
  2. 2 Whether the principles of inconsistency of treatment and fairness bring about an implied waiver of legal professional privilege over the identified documents.

Ratio Decidendi

Where a party expressly pleads and adduces evidence that it relied on the whole content of a document (including redacted/privileged content) to establish its state of mind or reliance in support of its case, this conduct is inconsistent with maintenance of privilege in those parts, and an implied waiver of legal professional privilege arises as to those sections, but not automatically as to other documents where such inconsistency is not shown.

Court Disposition

Orders made – Respondent (Council) succeeds as to production of unredacted due diligence reports (para 1 of application); application as to other documents (para 2) dismissed; costs reserved.

Orders

  • The respondent to submit proposed orders within seven days to give effect to these reasons.
  • Costs of and incidental to the interlocutory application are reserved.