Telstra Corp Ltd & Anor v BT Australasia Pty Ltd & Anor [1998] FCA 901

Telstra Corp Ltd & Anor v BT Australasia Pty Ltd & Anor [1998] FCA 901

Where a party (here, BT Australasia Pty Limited and British Telecommunications plc) asserts a cause of action for misleading or deceptive conduct and pleads reliance on representations, they put into issue their state of mind at relevant times, implicating any legal advice relevant to the formation of that state of mind. In such circumstances, under s 122(1) of the Evidence Act 1995 (Cth), consent to disclosure of legal advice is imputed because the issue is incapable of fair resolution without reference to such advice. The privilege in those specific categories of advice is therefore lost, and production must be ordered.

Jurisdiction
Australia
Judgment Date
24 July 1998
Procedural Posture
Interlocutory Appeals / On Appeal From a Judge of the Federal Court of Australia, Post General Discovery, Appeal of Orders on Privilege and Production
Outcome
Appeal upheld in part (orders of first instance set aside); production for inspection of specified documents ordered.
Legal Topics
['client Legal Privilege' 'waiver of Privilege' 'discovery and Inspection of Documents' 'imputed Consent Under Evidence Act 1995 (cth)']
['evidence' 'civil Procedure' 'contract Law'] ['client Legal Privilege' 'waiver of Privilege' 'discovery and Inspection of Documents' 'imputed Consent Under Evidence Act 1995 (cth)']

Case Brief

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Procedural Posture

Interlocutory Appeals / On Appeal From a Judge of the Federal Court of Australia, Post General Discovery, Appeal of Orders on Privilege and Production

Legal Issues

  1. 1 ['Whether client legal privilege attaching to legal advice documents was waived or lost, either at common law or under s 122 of the Evidence Act 1995 (Cth)' 'Whether pleas of reliance on representations or state of mind put in issue privileged legal advice such that waiver should be imputed']

Ratio Decidendi

Where a party (here, BT Australasia Pty Limited and British Telecommunications plc) asserts a cause of action for misleading or deceptive conduct and pleads reliance on representations, they put into issue their state of mind at relevant times, implicating any legal advice relevant to the formation of that state of mind. In such circumstances, under s 122(1) of the Evidence Act 1995 (Cth), consent to disclosure of legal advice is imputed because the issue is incapable of fair resolution without reference to such advice. The privilege in those specific categories of advice is therefore lost, and production must be ordered.

Court Disposition

Appeal upheld in part (orders of first instance set aside); production for inspection of specified documents ordered.

Orders

  • ['The orders dated 1 April 1998 of the judge at first instance are set aside.' 'BT Australasia Pty Limited and British Telecommunications plc are required to produce for inspection by the State of New South Wales any written legal advice received by them or either of them: (a) as to whether contractual provisions...