Ewing International Limited Partnership v Ausbulk Ltd

The matter before the court involved an application by Ewing International Limited Partnership for further and better disclosure from Ausbulk Ltd. The dispute centred on the state of mind of Ausbulk as relevant to its pleadings. Ewing contended that Ausbulk's state of mind was represented not only by its company secretary and in-house counsel but also by its external solicitor and legal counsel. Consequently, Ewing sought disclosure of documents directly relevant to the state of mind of Ausbulk's external solicitors and legal counsel, particularly those created after 28 February 2009.

The central legal issue was whether Ausbulk's pleadings constituted a waiver of legal professional privilege in respect of documents created after 28 February 2009. Ewing argued that since Ausbulk's pleadings related to its state of mind up to 28 February 2009, documents created after this date, which retrospectively set out the belief or understanding of the solicitors and legal counsel about events prior to 28 February 2009, should be disclosed. Ausbulk, on the other hand, maintained that no waiver of privilege had occurred and that any documents created after 28 February 2009 were subject to litigation privilege.

The court found that Ausbulk's pleadings did not expressly or impliedly waive privilege in any documents created after 28 February 2009. The court noted that Ausbulk had voluntarily provided documents created before 28 February 2009, but this did not extend to documents created subsequently. The court held that any documents created after 28 February 2009 were subject to litigation privilege and that the pleadings did not waive this privilege. Consequently, the application for further and better disclosure was dismissed.

The court's decision was grounded in the principle that legal professional privilege is not waived by mere reference to the state of mind of a party in pleadings, unless there is a clear and unequivocal statement to that effect. The court concluded that since Ausbulk's pleadings did not constitute such a waiver, the application for disclosure of documents created after 28 February 2009 was properly resisted. The court dismissed the application and ordered that it was without merit.