Hendi v Commonwealth of Australia (No. 2)

In the Federal Court, Hendi sued the Commonwealth of Australia in relation to documents obtained through a subpoena. The issue was whether the documents produced were protected by client legal privilege. The court had to determine whether the defendant had waived the privilege through their conduct. The court also considered section 122 of the Evidence Act 1995 (NSW), which addresses the waiver of privilege. The defendant argued that their conduct had not been inconsistent with claiming privilege, and the omission to claim privilege was the result of an inadvertent oversight. The court agreed that there had been no loss of privilege.

The court examined the defendant's conduct and found that it did not indicate any intention to waive the privilege. The defendant's actions were consistent with the maintenance of privilege, and the failure to claim privilege was due to an inadvertent oversight. The court concluded that there was no waiver of privilege and that the documents remained protected. The court's decision hinged on the interpretation of section 122 of the Evidence Act 1995 (NSW) and the specific circumstances of the case, including the inadvertent nature of the oversight. The court ruled in favour of the defendant, finding that the privilege was not waived.