Orica Australia Pty Ltd v Limit (No2) Limited

Orica Australia Pty Ltd brought an action against Limit (No2) Limited, seeking discovery of documents. Orica issued a subpoena to Limit, requesting access to various documents. Limit objected to the inspection of certain documents, asserting legal professional privilege. The central issue for the court was to determine whether the documents in question were protected by legal professional privilege, specifically the advice privilege and the litigation privilege.

The court examined whether the advice privilege applied to the communications between Limit and third parties. The advice privilege protects legal advice given by a lawyer to a client. However, the court noted that the privilege only applies if the communication is in connection with the giving of legal advice and is not otherwise waived. The court also considered whether the litigation privilege applied, which protects communications made in anticipation of litigation. The court assessed whether the litigation was reasonably anticipated or contemplated at the time the communications occurred. Furthermore, the court considered whether there had been any waiver of privilege if the contents of the privileged document were referenced for the sole purpose of maintaining the privilege in other documents.

The court found that the documents were protected by legal professional privilege. The advice privilege applied as the communications were made in connection with the giving of legal advice. The litigation privilege also applied as the litigation was reasonably anticipated. The court held that there was no waiver of privilege as the reference to the contents of the privileged document was made solely for the purpose of maintaining the privilege in other documents. Consequently, the court upheld the objection to the inspection of the documents.

The court ordered that the subpoena be set aside to the extent that it sought discovery of the privileged documents.