Shea v TruEnergy Services Pty Ltd (No 4)

In Shea v TruEnergy Services Pty Ltd (No 4), the applicant sought to challenge the respondent's assertion of client legal privilege in relation to a memorandum prepared by the respondent's former solicitors. The memorandum was dated 29 June 2011 and had been sent to the respondent's managing director and the managing director of the respondent's parent company. The applicant argued that the blanked out sections of the memorandum should be disclosed and that the privilege was lost under section 125 of the Evidence Act, as the document was prepared in furtherance of an act which would incur a civil penalty. The court had to determine whether the challenge to the privilege could be entertained at that stage of the trial and whether the privilege had been lost.

The primary issue before the court was whether the applicant was entitled to cross-examine on the entire contents of the memorandum, including the blanked out sections, and if the privilege could be challenged given that it had been asserted since March 2013 without any prior challenge. The court also needed to consider whether there were reasonable grounds to find that the privilege was lost under section 125 of the Evidence Act, given the suggestion that the memorandum was prepared in furtherance of an act that would incur a civil penalty.

The court found that it was inappropriate to entertain the challenge to client legal privilege, given the stage of the trial and the longstanding assertion of privilege by the respondent. The court noted that the respondent had consistently maintained the privilege since March 2013 and that the applicant had not provided any cogent evidence to support a challenge. The court held that the memorandum was on its face subject to privilege and that it could be inferred from its structure that the blanked out sections contained legal advice. The court further found that the imputation that the respondent's former lawyers may have provided legal advice in furtherance of an act which would incur a civil penalty was theoretical and lacked persuasive evidence. Therefore, the court declined to permit cross-examination on the blanked out matters in the memorandum and refused to entertain the further challenge to the asserted client legal privilege.

In summary, the court refused to allow the applicant to cross-examine on the blanked out sections of the memorandum and dismissed the challenge to the client legal privilege. The court held that the longstanding assertion of privilege and the lack of evidence supporting the loss of privilege meant that the challenge was not appropriate at that stage of the trial.