KC v Shiley Inc

FEDERAL COURT OF AUSTRALIA

EVIDENCE - privilege - application for access to subpoenaed documents - legal professional privilege - principles relating to implied waiver of privilege - whether privilege waived - whether state of mind put in issue - whether disclosure of substance of legal advice - whether fairness requires waiver of privilege - client legal privilege - application of Evidence Act 1995 (Cth) to preliminary procedures - whether privileged communication affects the rights of a person - whether knowing or voluntary disclosure of the substance of the advice - whether advice relevant to determining liability for costs

Evidence Act 1995 (Cth), ss 118, 119, 121, 122, 131
Legal Aid Commission Act 1979 (NSW), s 25

Attorney-General (Northern Territory) v Maurice (1986) 161 CLR 475, applied
Buttes Gas and Oil Co v Hammer (No.3) [1981] QB 223, cited
Goldberg v Ng (1995) 185 CLR 83, cited
Benecke v National Australia Bank (1993) 35 NSWLR 110, cited
Ampolex Ltd v Perpetual Trustee Co (Canberra) Ltd (1995) 37 NSWLR 405, cited
Ampolex Ltd v Perpetual Trustee Co (Canberra) Ltd (1996) 40 NSWLR 12, cited
Ampolex Ltd v Perpetual Trustee Co (Canberra) Ltd (1996) 70 ALJR 603, cited
Westpac Property Investments Pty Ltd v City West Apartments Pty Ltd (unreported, 20 December 1996, Supreme Court of New South Wales, Equity  Division), cited
Trade Practices Commission v Port Adelaide Wool Co Pty Ltd (1995) 132 ALR 645, applied
Telstra  Corp Ltd v Australis Media Holdings Pty Ltd (unreported, 20 February 1997, Supreme Court of New South Wales, Equity Division), applied

KC, KS, KF and KL v
SHILEY INCORPORATED AND PFIZER INCORPORATED

No NG 633 of 1993

TAMBERLIN J
SYDNEY
11 JULY 1997

IN THE FEDERAL COURT OF AUSTRALIA	)
)
NEW SOUTH WALES DISTRICT REGISTRY	)  NG 633  of 1993
)
GENERAL DIVISION	)

BETWEEN:             

KC
First Applicant

KS by her next friend KC
Second Applicant

KF by her next friend KC
Third Applicant

KL by her next friend KC
Fourth Applicant

  AND:  

SHILEY INCORPORATED
First Respondent

PFIZER INCORPORATED
Second Respondent

JUDGE:	TAMBERLIN J
PLACE:	SYDNEY
DATED:	11 JULY 1997

MINUTES OF ORDER

THE COURT ORDERS THAT:

1. The Notice of Motion be dismissed in relation to documents held by the Legal Aid Commission of New South Wales.

1. In relation to other documents sought in the subpoenas, the subject of the Notice of Motion, access be provided to such documents as are relevant to liability for costs which the applicants seek to claim as damages from the respondents.

1. The respondent pay the applicants’ costs of the Notice of Motion.

Note:Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA	)
)
NEW SOUTH WALES DISTRICT REGISTRY	)   NG 633  of 1993
)
GENERAL DIVISION	)

BETWEEN:             

KC
First Applicant

KS by her next friend KC
Second Applicant

KF by her next friend KC
Third Applicant

KL by her next friend KC
Fourth Applicant

  AND:  

SHILEY…