Areva NC (Australia) Pty Ltd v Summit Resources (Australia) Pty Ltd

Areva NC (Australia) Pty Ltd sought to issue a subpoena to Summit Resources (Australia) Pty Ltd, requiring the production of documents relevant to a dispute concerning uranium exploration. The case came before the Federal Court, which was required to determine several legal issues, including whether a subpoena could be issued under Order 36B of the Federal Court Rules to be returnable other than in relation to a trial, and the extent to which legal professional privilege applied to the documents in question. The court was also asked to consider whether the doctrine of implied waiver applied to certain categories of documents and, if so, to what extent.

The court found that Order 36B of the Federal Court Rules does allow for a subpoena to be issued to be returnable other than in relation to a trial. However, the court determined that the party seeking to rely on the subpoena must still satisfy the requirements of the rules, including demonstrating a legitimate forensic purpose for the subpoena. The court found that Areva NC (Australia) Pty Ltd had satisfied this requirement. In relation to legal professional privilege, the court found that the doctrine of implied waiver applied to certain categories of documents, but that the extent of the waiver turned on the facts of each case. The court found that privilege had been waived in relation to certain categories of documents, but not others. The court also found that the party seeking to claim privilege must make a timely and specific claim of privilege, and that failure to do so may result in an implied waiver of privilege.

The court issued the subpoena, but with modifications to certain categories of documents. The subpoena was to extend to all categories in the summons except category 4, which was to be modified to exclude from production any document that had been discovered in CIV 2021 of 2006. In relation to categories 1, 3 and 4, privilege covering documents within those categories had been waived, and the documents were to be made available for inspection. In relation to category 2, upon return of the subpoena it would be open to the first defendant to claim privilege from inspection of those documents, and open to the plaintiff to argue any privilege in relation to those documents had been waived.