Fenwick v Wambo Coal Pty Ltd (No. 2) [2011] NSWSC 353

Fenwick v Wambo Coal Pty Ltd (No. 2) [2011] NSWSC 353

Privilege in the defendant's legal advice documents was waived under s 122 of the Evidence Act 1995 because the documents were discovered and produced for inspection (without asserting privilege), amounting to a knowing and voluntary disclosure of the substance of the legal advice (including conclusions and reasoning) to the plaintiff. Disclosure was not under compulsion of law, as privilege could have been claimed but was not.

Jurisdiction
Australia
Judgment Date
15 April 2011
Procedural Posture
Interlocutory Application / Ruling on Production of Privileged Documents
Outcome
Plaintiff's contention of waiver of privilege upheld; disclosure ordered.
Legal Topics
['client Legal Privilege' 'waiver of Privilege' 'discovery' 'evidence Act 1995']
['evidence' 'civil Procedure'] ['client Legal Privilege' 'waiver of Privilege' 'discovery' 'evidence Act 1995']

Case Brief

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Procedural Posture

Interlocutory Application / Ruling on Production of Privileged Documents

Legal Issues

  1. 1 ['Whether client legal privilege over certain legal advice documents has been waived under s 122(2) Evidence Act 1995 by discovery and production for inspection without claiming privilege;' 'Whether disclosure was knowing and voluntary, and whether it disclosed the substance of the legal advice within s 122(3) Evidence Act 1995;' 'Whether disclosure was under compulsion of law within the meaning of s 122(5) Evidence Act 1995']

Ratio Decidendi

Privilege in the defendant's legal advice documents was waived under s 122 of the Evidence Act 1995 because the documents were discovered and produced for inspection (without asserting privilege), amounting to a knowing and voluntary disclosure of the substance of the legal advice (including conclusions and reasoning) to the plaintiff. Disclosure was not under compulsion of law, as privilege could have been claimed but was not.

Court Disposition

Plaintiff's contention of waiver of privilege upheld; disclosure ordered.

Orders

  • ["The documents referred to in para 5(b), (c), (d), (f), (g) and (h) of Mr Meades' affidavit be produced to the plaintiff for inspection."]