Atlas Copco Australia Pty Ltd v Oxair Gases Pty Ltd

Atlas Copco Australia Pty Ltd initiated legal proceedings against Oxair Gases Pty Ltd in the Supreme Court of Western Australia, claiming breach of contract related to the supply of a compressor and a dryer for the mining industry. Oxair Gases Pty Ltd claimed privilege over certain documents related to its negotiations with Carpentaria Gold Pty Ltd, a third party, and sought to redact a portion of a discovered document. The appellant sought inspection of the documents and the unredacted portion of document 259, while the respondent opposed these claims. The appeal and cross-appeal concerned the validity of the privilege claim and the necessity of inspecting the redacted portion of document 259.

The Court of Appeal had to decide whether the respondent could claim privilege over the discovered documents and whether the redacted portion of document 259 should be produced for inspection. The court first examined the claim of litigation privilege, which was not properly raised by the respondent. The court noted that the respondent had claimed 'own case privilege', which was not considered by the master. The court decided that it was not appropriate to determine the validity of the 'own case privilege' claim without a decision from the master. The court also reviewed the basis for redacting document 259 and found that the master had erred in requiring its inspection. The court held that the redacted portion was irrelevant to the pleaded issues and did not advance the respondent's case or damage the appellant's case.

The Court of Appeal dismissed the appeal, granted leave for the cross-appeal, and upheld the cross-appeal. The court set aside the master's order of 5 June 2012, which required the respondent to produce the redacted portion of document 259 for inspection. The matter was returned to the master for re-examination in light of the arguments raised regarding 'own case privilege'.