JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CIVIL
CITATION: TEC HEDLAND PTY LTD -v- THE PILBARA INFRASTRUCTURE PTY LTD [2020] WASC 364
CORAM: HILL J
HEARD: 8 APRIL 2020
DELIVERED : 21 OCTOBER 2020
FILE NO/S: CIV 3060 of 2017
BETWEEN: TEC HEDLAND PTY LTD
Plaintiff
AND
THE PILBARA INFRASTRUCTURE PTY LTD
Defendant
Catchwords:
Practice and procedure - Discovery - Inspection of discovered documents - Claim of legal professional privilege over documents - Proper approach to multi-addressee emails
Practice and procedure - Discovery - Legal professional privilege - Where legal advice disclosed - Extent of waiver
Practice and procedure - Discovery - Implied waiver including by filing evidence on this application - Defendant has not put its state of mind in issue - No implied waiver
Legislation:
Rules of the Supreme Court 1971 (WA), O 26, r 9 and r 12
Result:
Inspection of certain documents ordered
Plaintiff's application otherwise dismissed
Category: B
Representation:
Counsel:
| Plaintiff | : | S Doyle QC & A Messina |
| Defendant | : | B Dharmananda SC & R Young & S Tomasich |
Solicitors:
| Plaintiff | : | Norton Rose Fulbright Australia |
| Defendant | : | Corrs Chambers Westgarth |
Case(s) referred to in decision(s):
Archer Capital 4A Pty Ltd v Sage Group Plc (No 2) [2013] FCA 1098; (2013) 306 ALR 384
Attorney-General (NT) v Maurice [1986] HCA 80; (1986) 161 CLR 475
AWB Ltd v Cole (No 5) [2006] FCA 1234; (2006) 155 FCR 30
AWB Ltd v Cole [2006] FCA 571; (2006) 152 FCR 382
Balabel v Air-India [1988] 1 Ch 317
Barnes v Commissioner of Taxation (Cth) [2007] FCAFC 88; (2007) 242 ALR 601
Bennett v Chief Executive Officer of the Australian Customs Service [2004] FCAFC 237; (2004) 140 FCR 101
British American Tobacco Australia Services Ltd v Cowell [2002] VSCA 197; (2002) 7 VR 524
Carey v Korda [2012] WASCA 228; (2012) 45 WAR 181
CMA Assets Pty Ltd v John Holland Pty Ltd [No 3] [2012] WASC 501
Commissioner of Australian Federal Police v Propend Finance Pty Ltd [1997] HCA 3; (1997) 188 CLR 501
Commissioner of Taxation (Cth) v Pratt Holdings Pty Ltd [2005] FCA 1247; (2005) 225 ALR 266
Commissioner of Taxation (Cth) v Spotless Services Ltd [1996] HCA 34; (1996) 186 CLR 404
Commissioner of Taxation v Rio Tinto Ltd [2006] FCAFC 86; (2006) 151 FCR 341
Commonwealth v Temwood Holdings Pty Ltd [2002] WASC 107
CTC Resources NL v Australian Stock Exchange Ltd [2000] WASCA 19; (2000) 22 WAR 48
Dalleagles Pty Ltd v Australian Securities Commission (1991) 4 WAR 325
DSE (Holdings) Pty Ltd v Intertan Inc [2003] FCA 1191; (2003) 135 FCR 151
Esso Australia Resources Ltd v Commissioner of Taxation (Cth) [1999] HCA 67; (1999) 201 CLR 49
Expense Reduction Analysts Group Pty Ltd v Armstrong Strategic Management & Marketing Pty Ltd [2013] HCA 46; (2013) 250 CLR 303
Galway v Constable [2001] QSC 180; [2002] 2 Qd R 146
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- Case
- [2020] WASC 364
- Decision Date
CaseChat Overview and Summary
The court examined the nature of multi-addressee emails and their implications for legal professional privilege. It considered whether the disclosure of legal advice in such emails constituted a waiver of privilege. The court also assessed whether the defendant's actions, including the filing of evidence in the application, implied a waiver of privilege. The court found that while the disclosure of legal advice in multi-addressee emails could potentially lead to a waiver of privilege, the defendant had not contested the state of mind necessary to establish an implied waiver. Therefore, the court ruled that there was no implied waiver of privilege in this case.
The court ordered that the plaintiff could inspect the contested documents, as the defendant had not successfully claimed legal professional privilege over them. The plaintiff's application for broader discovery was dismissed, as the court found that the defendant had not impliedly waived the privilege over the documents in question. This decision highlights the importance of carefully considering the implications of multi-addressee emails and the disclosure of legal advice when asserting legal professional privilege in litigation.
Orders
Orders of the court
Inspection of certain documents ordered
Plaintiff's application otherwise dismissed
Background
Background to the litigation
Full text does not contain this section.
Evidence
Evidence Before The Court
Full text does not contain this section.
Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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