Brown v Forestry Tasmania (No 3) [2006] FCA 469

Brown v Forestry Tasmania (No 3) [2006] FCA 469

The documents were not privileged under s 118 because they were communications between two witnesses, Dr Read and Mr Meggs, for the purpose of assisting each other to prepare affidavits, not communications between a lawyer and client for legal advice. They were not protected under s 119 because Forestry Tasmania did not establish that the communications were confidential, and the in-house lawyer had no involvement beyond suggesting that the communications occur. The common law claim would also fail because the communications were not to or from a legal adviser for the dominant purpose of providing legal services. In any event, if privilege had existed, it had been waived because the...

Jurisdiction
Australia
Judgment Date
01 May 2006
Procedural Posture
Application Under the Environmental Protection and Biodiversity Conservation Act 1999 (cth) / Ruling During the Hearing on the Respondent's Claim for Privilege Over Documents Called for During Mr Meggs' Cross Examination
Outcome
The respondent's claim for privilege was dismissed.
Legal Topics
['legal Professional Privilege' 'client Legal Privilege' 'production of Documents During Cross Examination' 'sections 118 and 119 of the Evidence Act 1995 (cth)' 'waiver of Privilege' 'federal Court Rules O 33 R 11']
['practice and Procedure' 'privilege' 'evidence' 'environmental Law'] ['legal Professional Privilege' 'client Legal Privilege' 'production of Documents During Cross Examination' 'sections 118 and 119 of the Evidence Act 1995 (cth)' 'waiver of Privilege' 'federal Court Rules O 33 R 11']

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Procedural Posture

Application Under the Environmental Protection and Biodiversity Conservation Act 1999 (cth) / Ruling During the Hearing on the Respondent's Claim for Privilege Over Documents Called for During Mr Meggs' Cross Examination

Legal Issues

  1. 1 ['Whether emails and attachments between Dr Read and Mr Meggs were immune from production by legal professional privilege or client legal privilege under the common law or the Evidence Act 1995 (Cth).' 'Whether ss 118 and 119 of the Evidence Act 1995 (Cth), as extended by O 33 r 11(5) of the Federal Court Rules 1979 (Cth), applied to a call for production made during evidence at the hearing.' 'Whether any privilege had been waived by intentional disclosure of other like communications.']

Ratio Decidendi

The documents were not privileged under s 118 because they were communications between two witnesses, Dr Read and Mr Meggs, for the purpose of assisting each other to prepare affidavits, not communications between a lawyer and client for legal advice. They were not protected under s 119 because Forestry Tasmania did not establish that the communications were confidential, and the in-house lawyer had no involvement beyond suggesting that the communications occur. The common law claim would also fail because the communications were not to or from a legal adviser for the dominant purpose of providing legal services. In any event, if privilege had existed, it had been waived because the...

Court Disposition

The respondent's claim for privilege was dismissed.

Orders

  • ["The respondent's claim for privilege in respect of the production of the documents called for during Mr Meggs' evidence, but not produced by the respondent, is dismissed."]