Hi-Fert Pty Ltd v United Shipping Adriatic Inc & Ors [1998] FCA 1672

Hi-Fert Pty Ltd v United Shipping Adriatic Inc & Ors [1998] FCA 1672

By referring to and disclosing the substance of the legal advice in affidavit sentences (even if not read in court), the plaintiff has waived privilege. Accordingly, the plaintiff is required to produce the document despite section 118 of the Evidence Act, as common law principles are modified by the Act and privilege is lost when disclosure is made.

Parties
Plaintiff: HI-FERT PTY LIMITED; First Defendant: UNITED SHIPPING ADRIATIC INC.; Second Defendant: MARINE CARGO CARE PTY LIMITED; Third Defendant: HYUNDAI MERCHANT MARINE CO LIMITED
Jurisdiction
Australia
Judgment Date
26 November 1998
Procedural Posture
Civil / Interlocutory Application Regarding Production of Documents
Outcome
Plaintiff required to produce the document referred to in the affidavit for inspection; privilege not available.
Legal Topics
Legal Professional Privilege, Production of Documents, Disclosure, Stay of Proceedings
Evidence Legal Professional Privilege Production of Documents Disclosure Stay of Proceedings

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Parties

HI-FERT PTY LIMITED

Plaintiff

UNITED SHIPPING ADRIATIC INC.

First Defendant

MARINE CARGO CARE PTY LIMITED

Second Defendant

HYUNDAI MERCHANT MARINE CO LIMITED

Third Defendant

Procedural Posture

Civil / Interlocutory Application Regarding Production of Documents

Legal Issues

  1. 1 Whether legal professional privilege applies to a document referred to in an affidavit
  2. 2 Whether section 118 or 122 of the Evidence Act 1995 (Cth) precludes or permits production of the document
  3. 3 Whether common law principles regarding privilege are modified by the Evidence Act

Ratio Decidendi

By referring to and disclosing the substance of the legal advice in affidavit sentences (even if not read in court), the plaintiff has waived privilege. Accordingly, the plaintiff is required to produce the document despite section 118 of the Evidence Act, as common law principles are modified by the Act and privilege is lost when disclosure is made.

Court Disposition

Plaintiff required to produce the document referred to in the affidavit for inspection; privilege not available.

Orders

  • Plaintiff to produce any written advice or writing recording advice referred to in the relevant sentences of paragraph 10 of the affidavit of Rodney Edward Withnell sworn on 16 November 1998.