Fonterra Brands Australia Pty Ltd v Bega Cheese Ltd (No 4)

In the case of Fonterra Brands Australia Pty Ltd v Bega Cheese Ltd, the parties were engaged in a legal dispute concerning the production of documents related to legal professional privilege. The matter was heard in the Supreme Court of Victoria. The plaintiffs sought an order for the production of documents, asserting that the defendant had waived any legal professional privilege that it held over those documents. The defendant, on the other hand, argued that the privilege remained intact because the disclosure of the legal advice had not been clear and unequivocal.

The primary legal issues the court had to decide were whether the defendant had waived any legal professional privilege by disclosing the substance of the legal advice and whether the plaintiffs had established reasonable grounds to believe that the defendant had engaged in unconscionable conduct. The court had to apply the principles set out in the Evidence Act 2008 and relevant case law, including IOOF Holdings v Maurice Blackburn, Liberty Funding Pty Ltd v Phoenix Capital Ltd, and Cargill Australia Ltd v Viterra Malt Pty Ltd.

In its reasoning, the court held that a waiver of privilege does not occur until an affidavit is read in open court or a party gives evidence on oath at trial. The court found that the disclosure in the confidential discussion paper did not clearly and unequivocally expose the substance of the legal advice, but rather only the ultimate conclusion in highly generalised terms. Consequently, the privilege was not waived. Additionally, the court determined that there were reasonable grounds to believe that the defendant had engaged in unconscionable conduct, but this did not extend to any document in furtherance of fraud.

The court ultimately refused the plaintiffs' application for the production of documents. The defendant's legal professional privilege was upheld, and no order for production was made.