Westgold Resources NL v St Barbara Mines Ltd

Westgold Resources NL filed a suit against St Barbara Mines Ltd in the Supreme Court of Western Australia, seeking to compel the disclosure of documents obtained through a subpoena. The dispute centred on whether certain documents were protected by legal professional privilege, specifically litigation privilege, and thus exempt from disclosure. The court was tasked with determining whether the documents, which were in the possession of an independent witness, were privileged.

The primary legal issue was whether the litigation privilege applied to the documents in question. The court needed to assess if there was a relationship of confidentiality between the independent witness and the party seeking to assert privilege, which would render the documents privileged. The court also had to consider whether the documents were prepared for the purpose of litigation and whether the privilege extended to copies in the hands of an independent witness.

The court found that the litigation privilege did not extend to the documents in question. It held that for litigation privilege to apply, there must be a relationship of confidentiality between the person who prepared the document and the party seeking to assert the privilege. The court determined that there was no such relationship between the independent witness and the party seeking privilege. The court further held that the privilege did not extend to copies of documents in the hands of an independent witness unless there was a duty of confidentiality owed to the party seeking privilege. The court concluded that the documents were not privileged as they were not prepared for the purpose of litigation and no duty of confidentiality was established.

The court ruled that the subpoena for the production of the documents should be enforced, and the documents were not protected by legal professional privilege. The decision reinforced the principles that litigation privilege protects documents prepared for litigation purposes and requires a relationship of confidentiality between the document preparer and the party seeking to assert privilege.