Stamp and Stamp

The appeal concerned an interlocutory decision made by Stevenson J on 14 December 2005, which had stayed an earlier order made on 16 August 2005. The appellant husband sought leave to appeal against the interlocutory order, arguing that the primary judge had erred in principle by failing to properly consider and apply the common law rules regarding waiver of professional privilege. The dispute centred on whether the respondent wife had impliedly waived privilege over the file of her solicitors, M & J.

The legal issues before the Full Court were whether leave to appeal an interlocutory decision should be granted, and if so, whether the primary judge had erred in principle by failing to apply the correct common law principles concerning the waiver of professional privilege. Specifically, the court had to determine if the wife's state of mind or knowledge was an issue such that legal advice relevant to its formulation could lead to a waiver, and whether the wife had made assertions that would constitute such a waiver. The court also considered whether the application was premature.

The Full Court found that the husband's submissions regarding the application of common law rules on waiver of privilege, as established in cases like *Mann v Carnell*, were correct. The court noted that the primary judge had not referred to any authorities and had relied on a passage from *Cross on Evidence* without proper citation. The court accepted that the *Evidence Act 1995* (Cth) was confined to the adducing of evidence in court and was not applicable to this interlocutory application, thus requiring reference to common law principles. The court concluded that the primary judge's failure to consider and apply the principles of inconsistency in relation to waiver of privilege constituted an error of principle and could lead to substantial injustice, thereby fulfilling the criteria for granting leave to appeal.

The Full Court allowed the appeal, varied the order of 14 December 2005 to remove the stay on the order of 16 August 2005, and granted costs certificates to both the appellant husband and the respondent wife under the *Federal Proceedings (Costs) Act 1981*.