IN THE FEDERAL COURT OF AUSTRALIA VICTORIA DISTRICT REGISTRY VG 215 of 1994 BETWEEN: WIMMERA INDUSTRIAL MINERALS PTY LTD (ACN 004 302 130) Applicant AND: RGC MINERAL SANDS LIMITED (ACN 008 763 666) First Respondent RGC MINERAL SANDS LIMITED cross-claimant WIMMERA INDUSTRIAL MINERALS PTY LTD FIRST CROSS-CLAIMANT THE COMMISSIONER OF PATENTS SECOND CROSS-RESPONDENT JUDGE: SUNDBERG J DATE: 17 SEPTEMBER 1997 PLACE: MELBOURNE EX‑TEMPORE REASONS FOR JUDGMENT I uphold the applicant's refusal to produce the documents globally identified by Mr Catterns. As to those said to be related to par 3.3 of Mr Hamer's first affidavit and par 7 of Mr Munt's affidavit, s 122(1) of the Evidence Act 1995 does not apply. Neither paragraph amounts to a consent by the applicant to evidence being given of the privileged communications. Section 122(2) does not apply. Neither paragraph sets out the substance or effect of the communications. Section 126, which was relied on by the respondent, does not apply for want of any primary document the production of which may pick up other documents. See Towney v The Minister for Land and Water Conservation, unreported, 23 July 1997. On the assumption that the principle in Thomason v Campbelltown Municipal Council (1939) 39 SR (NSW) 347 at 358‑359 is a free‑standing principle that has survived the enactment of the Evidence Act, it does not apply to the present case. The nature of the legal advice sought and given here is not an issue, in the sense in which the word "issue" is used in that case. Paragraph 4.1 of Mr Hamer's affidavit is different. The substance of the advice given by Mr Hamer is there disclosed, but there is no document in the list provided by Mr Catterns which fits the description in the opening words of that paragraph ‑ "shortly after the 14th of October 1994". The request for the production of the documents on Mr Catterns' list should not have been saved up until yesterday. Conformably with at least the spirit of my earlier orders, interlocutory skirmishes about documents and privilege should have been sorted out before the hearing of the amendment motion. That was the point of the earlier orders. The parties were before Northrop J on a discovery/privilege issue last week. The matter could and should have been raised then. Instead, the efficient flow of the amendment motion has been interrupted, and scarce court time devoted to that application has been lost. I certify that this and the preceding page are a true copy of the Reasons for Judgment herein of the Honourable Justice Sundberg Associate: Dated: 17 September 1997 Counsel for the Applicant: A C Archibald QC, J McL Emmerson QC and P W Collinson Solicitor for the Applicant: Arthur Robinson & Hedderwicks Counsel for the Respondent: D Catterns QC and A J Ryan Solicitor for the Respondent: Allen Allen & Hemsley