Zantran Pty Limited v Crown Resorts Limited (No 2)

The case of Zantran Pty Limited v Crown Resorts Limited (No 2) involved a dispute over the inspection of documents claimed to be subject to legal professional privilege. The matter was heard in the Federal Court of Australia. The central issue before the court was whether Crown Resorts had waived its claim of legal professional privilege over certain documents, specifically those which were part of the discovery process in the litigation.

The court was required to determine whether the common law principles of waiver of legal professional privilege applied, and if so, whether the privilege had been waived. The court examined whether the waiver of privilege extended to documents that dealt with subject matter not pleaded by the applicant and whether it applied to documents brought into existence after the relevant period but which incorporated or attached privileged communications made before or during that period. The court referenced the principle outlined in Mann v Carnell, noting that no form of waiver described as “associated material waiver” was recognised at common law.

In its reasoning, the court found that Crown Resorts had not demonstrated that the privilege had been waived. The court noted that the witness statements of certain Crown employees did not constitute a waiver of privilege, as they did not disclose confidential communications with legal advisers. The court also held that the waiver of privilege did not extend to documents that dealt with subject matter not pleaded by Zantran or those created after the relevant period that incorporated or attached privileged communications. Consequently, the court dismissed the application for production of the documents, except for those specifically identified in the reasons, which were ordered to be produced for inspection by Zantran's solicitors.

The final orders of the court were that certain specified parts of the discovered documents be produced for inspection by Zantran's solicitors, while the broader application for production was dismissed. The entry of these orders was governed by Rule 39.32 of the Federal Court Rules 2011.