Optus Communications Pty Ltd v Telstra Corporation Ltd - [1995] FCA 254

CATCHWORDS

DISCOVERY - legal professional privilege - whether legal professional privilege attaches to masked portions of documents - communication between Government owned corporation and Minister and Department - duty to report - whether implied waiver.

CONFIDENTIALITY

OPTUS COMMUNICATIONS PTY LIMITED, OPTUS NETWORKS PTY LIMITED, OPTUS MOBILE PTY LIMITED v TELSTRA CORPORATION LIMITED

G100 of 1993

LOCKHART J.
27 APRIL 1995
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA )
  )
NEW SOUTH WALES DISTRICT REGISTRY )    No. G100 of 1993
  )
GENERAL DIVISION                 )

BETWEEN:OPTUS COMMUNICATIONS PTY LIMITED
First Applicant

OPTUS NETWORKS PTY LIMITED

Second Applicant

OPTUS MOBILE PTY LIMITED
Third Applicant

AND:TELSTRA CORPORATION LIMITED
Respondent

27 April 1995

REASONS FOR JUDGMENT
LOCKHART J.
The question for determination is whether legal professional privilege attaches to masked portions of certain documents discovered by the respondent, rendering them immune from inspection. The applicants submit that no portions of the documents are of the kind to which legal professional privilege attaches and that, to the extent to which they are of that kind, privilege has been waived by disclosure of the relevant material to the Commonwealth of Australia.

I shall mention the documents later. First it is desirable to state the relevant principles which apply in this matter.

Essentially legal professional privilege protects from disclosure "communications made confidentially between a client and his legal adviser for the purpose of obtaining or giving legal advice or assistance": R v Bell; Ex parte Lees (1980) 146 CLR 141 per Gibbs J. at 144 and Attorney-General (N T) v Maurice (1986) 161 CLR 475 per Mason and Brennan JJ. at 487 where their Honours said:

"The raison d'etre of legal professional privilege is the furtherance of the administration of justice through the fostering of trust and candour in the relationship between lawyer and client."

Their Honours said at 487 that the privilege is confined within strict limits:

"... because of this conflict between the public interest in ensuring the availability of all relevant evidence in a particular case and the public interest in the administration of justice through effective legal representation, ..."

See also Grant v Downes (1976) 135 CLR 674 per Stephen, Mason and Murphy JJ. at 685.

In Trade Practices Commission v Sterling (1979) 36 FLR 244 I set out at 246 certain of the classes of documents for which legal professional privilege may be claimed, including communications passing between a party to litigation and a third party if they are made with reference to litigation either anticipated or commenced and at the request or suggestion of that party's solicitor; or, even without any such request or suggestion, if they are made for the purpose of being put before the solicitor with the object of obtaining his advice or enabling him to prosecute or defend an action (category (f)).

For privilege to apply the document must be brought into existence for the sole purpose either of obtaining advice for litigation or otherwise for the sole purpose of the litigation. Legal professional privilege…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [1995] FCA 254
Decision Date: 27 APRIL 1995

CaseChat Overview and Summary

The case of Optus Communications Pty Ltd v Telstra Corporation Ltd involved a dispute over the discovery of certain documents in litigation between the parties. The central issue was whether legal professional privilege attached to specific parts of the documents discovered by Telstra, thereby rendering them immune from inspection by Optus. The applicants argued that no parts of the documents were privileged and that any privilege had been waived by Telstra's disclosure of the relevant material to the Commonwealth. The Federal Court of Australia, under Justice Lockhart, was tasked with determining the applicability of legal professional privilege in this context.

The court first outlined the principles governing legal professional privilege, emphasizing that it protects confidential communications between a client and their legal adviser for the purpose of obtaining or giving legal advice or assistance. The privilege applies to communications made for the sole purpose of litigation or for obtaining legal advice related to litigation. The court noted that privilege extends to confidential professional communications between government departments and their officers if they are for the purpose of seeking or giving legal advice or in connection with anticipated or pending litigation.

Telstra claimed privilege for specific masked portions of four documents, which contained legal advice given to Telstra by its counsel and solicitors. The court examined the purpose of the documents and found that while they served multiple purposes, the masked portions containing legal advice were brought into existence solely for the purpose of obtaining or communicating that advice. Therefore, the court upheld Telstra's claim that these masked portions were immune from inspection on the ground of legal professional privilege.

Regarding the question of waiver, the court considered whether Telstra's disclosure of the legal advice to the Minister and the Department implied a waiver of privilege. The court concluded that there was no unfairness to Optus in not being made aware of the contents of the legal advice, and hence, no waiver of privilege occurred. The court also addressed the issue of limiting the inspection of documents to certain individuals, suggesting that the parties attempt to resolve this within the existing framework of document inspection and reserving the right to make further orders if necessary.

In conclusion, the court ruled that Optus was not entitled to inspect the relevant documents or parts thereof for which legal professional privilege was claimed by Telstra. The court reserved the costs of the motion to be argued at the trial.

Orders