DSE (Holdings) Pty Ltd v InterTAN Inc [2003] FCA 1191

DSE (Holdings) Pty Ltd v InterTAN Inc [2003] FCA 1191

Communications between Salomon Smith Barney and respondents' solicitors are privileged where SSB acts as an agent for communication, in the continuum of legal advice provision under Balabel and Dalleagles; mere copying to solicitors does not suffice without evidence of dominant purpose; privilege applies unless the communication is from SSB to client copying in solicitors without such evidence. Privilege claim requires proof by party asserting it.

Parties
Applicant/cross Respondent: DSE (Holdings) Pty Ltd; First Respondent/first Cross Claimant: InterTAN Inc; Second Respondent/second Cross Claimant: InterTAN Canada Limited
Jurisdiction
Australia
Judgment Date
30 October 2003
Procedural Posture
Motion/discovery Dispute / Interlocutory (privilege Ruling)
Outcome
Matter stood over for further hearing and provision of draft orders; partial orders made regarding discovery of documents and privilege claims.
Legal Topics
Legal Professional Privilege, Advice Privilege, Litigation Privilege, Discovery of Documents, Third Party Agent Communications
Practice and Procedure Evidence Legal Professional Privilege Advice Privilege Litigation Privilege Discovery of Documents Third Party Agent Communications

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Parties

DSE (Holdings) Pty Ltd

Applicant/cross Respondent

InterTAN Inc

First Respondent/first Cross Claimant

InterTAN Canada Limited

Second Respondent/second Cross Claimant

Procedural Posture

Motion/discovery Dispute / Interlocutory (privilege Ruling)

Legal Issues

  1. 1 Are the respondents' claims for legal professional privilege over certain categories of documents maintainable?
  2. 2 Do communications between third parties and solicitors attract advice privilege?
  3. 3 Is the agency relationship with third parties sufficient for privilege in the absence of anticipated litigation?

Ratio Decidendi

Communications between Salomon Smith Barney and respondents' solicitors are privileged where SSB acts as an agent for communication, in the continuum of legal advice provision under Balabel and Dalleagles; mere copying to solicitors does not suffice without evidence of dominant purpose; privilege applies unless the communication is from SSB to client copying in solicitors without such evidence. Privilege claim requires proof by party asserting it.

Court Disposition

Matter stood over for further hearing and provision of draft orders; partial orders made regarding discovery of documents and privilege claims.

Orders

  • Stand the motion over to a date to be fixed for making of orders in accordance with reasons and any further argument.
  • On or before 4 November 2003, parties deliver to associate an agreed draft minute of order reflecting these reasons.