Australian Competition and Consumer Commission v Prysmian Cavi E Sistemi Energia SRL (No 10)

The Australian Competition and Consumer Commission sought to enforce an undertaking provided by Nexans Australia Pty Ltd in relation to the disclosure of documents. Nexans Australia is a respondent in proceedings brought by the Commission, which concern allegations of price fixing and other anti-competitive conduct in the Australian energy cable market. The Commission's application for discovery was opposed by Nexans, and Nexans sought to rely on legal professional privilege in relation to certain documents. The Court had to determine whether Nexans had waived its privilege over certain documents by tendering a letter to a senior employee of Nexans.

The central legal issue was whether Nexans had waived its privilege by tendering a letter from its solicitors to a senior employee, Mr Noonan, concerning the scope of its discovery obligations. The Commission argued that Nexans had waived privilege over all documents associated with the letter, while Nexans contended that it had not waived privilege. The court had to decide whether there was an inconsistency between the tender of the letter and the maintenance of privilege over the associated material. The court examined the circumstances of the tender and the nature of the communications to determine whether Nexans had effectively waived its privilege.

The court found that Nexans had waived its privilege over the associated material. It determined that the tender of the letter to Mr Noonan, a senior employee, constituted a waiver of privilege over all documents associated with the letter. The court held that the tender indicated an intention to place the contents of the letter before someone who was not a legal professional, which is sufficient to constitute a waiver of privilege. The court also found that there was no inconsistency in Nexans tendering the letter while maintaining privilege over other documents, as the waiver only applied to the associated material.

The court ordered that Nexans discover and produce all documents recording or evidencing any communications between Clayton Utz, Nexans and/or its representatives, including Mr Noonan and Ms Poly, regarding the scope of Nexans’ discovery obligations in this proceeding on or before 4:00 pm on Tuesday, 28 July 2015. The entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.