Fenwick v Wambo Coal Pty Ltd (No 2)

The case of Fenwick v Wambo Coal Pty Ltd (No 2) involved a dispute over the waiver of client legal privilege in the context of a disclosure of legal advice. The defendant, Wambo Coal Pty Ltd, was involved in a proceeding against the plaintiff, Fenwick. The central issue before the court was whether the defendant had knowingly and voluntarily disclosed the substance of the evidence, specifically the conclusion and reasoning of legal advice, in a manner that constituted a waiver of the privilege. Furthermore, the court had to determine whether the disclosure was made under the compulsion of law as per the Evidence Act 1995.

The court's task was to interpret the provisions of the Evidence Act 1995, specifically sections 122(3) and 122(5), to assess whether the defendant's actions amounted to a waiver of the privilege. The defendant had disclosed the substance of the legal advice by providing it for discovery and for inspection. The court needed to decide if this constituted a voluntary waiver of privilege and whether the disclosure fell under the exception provided by section 122(5) of the Act, which allows for disclosure when compelled by law. The court held that the defendant could have claimed privilege but chose not to, thus effectively waiving it by producing the document for inspection.

The court concluded that the defendant's actions amounted to a voluntary waiver of the privilege because they could have asserted the privilege but chose not to. The court found that the disclosure was not made under the compulsion of law since the defendant had the option to claim privilege and did not do so. Consequently, the privilege was waived by the defendant's decision to produce the document for inspection. The court's decision underscored the importance of the client's control over the privilege and the need for the client to actively assert it to prevent its waiver.