The University of Western Australia v Gray (No 12)

The University of Western Australia brought an application against Dr David Gray for legal professional privilege in relation to certain documents. The University sought to prevent the disclosure of documents that had passed between its solicitors and the solicitors for Dr Yan Chen, a non-party to the proceedings, between 22 September 2003 and 23 March 2005. The application was brought in the Federal Court of Australia.

The central issue before the court was whether the common interest privilege applied to the documents in question. This required the court to consider whether there was a sufficient common interest between Dr Gray and Dr Chen to support a claim for privilege. The University argued that there was a common interest as both Dr Gray and Dr Chen were defendants in proceedings brought by the University, and therefore their interests were aligned against the University. The court needed to determine if this was sufficient to establish a common interest privilege.

The court found that the common interest privilege did not apply to the documents. The court reasoned that although Dr Gray and Dr Chen were both defendants in the University's proceedings, Dr Chen had commenced separate proceedings against the University and Dr Gray. This action was adverse to Dr Gray's interests, meaning that there was not a sufficient common interest between Dr Gray and Dr Chen to support a claim for privilege. The court held that the documents must be disclosed as there was no privilege protecting them.

The court ordered that the University must produce to Dr Gray copies of the correspondence and emails passing between the University's solicitors and Dr Chen's solicitors in the specified period.