State of New South Wales v BT Australasia Pty Ltd & Anor [1998] FCA 866

FEDERAL COURT OF AUSTRALIA

EVIDENCE – Evidence Act 1995 (Cth) - client legal privilege – loss of privilege – circumstances in which consent to disclosure of confidential communications can be implied. Evidence Act 1995 (Cth), s 122 Adelaide Steamship Co Ltd v Spalvins (1998) 152 ALR 418, cited Attorney-General for the Northern Territory v Maurice (1986) 161 CLR 475, applied Goldberg v Ng (1995) 185 CLR 83, applied Leaders Shoes (Aust) Pty Ltd v National Insurance Co of NZ Ltd [1968] 1 NSWR 344, cited Hooker Corp. Ltd v Darling Harbour Authority (1987) 9 NSWLR 538, cited Transamerica Computer Co. Inc. v IBM Corp. (1978) 573 F (2d) 646, cited STATE OF NEW SOUTH WALES v BT AUSTRALASIA PTY LIMITED AND BRITISH TELECOMMUNICATIONS PLC

NG 298 of 1998

BEAUMONT, BRANSON AND LEHANE JJ

SYDNEY

24 JULY 1998

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY NG 298 of 1998

BETWEEN: STATE OF NEW SOUTH WALES

AppELlant

AND: BT AUSTRALASIA PTY LIMITED

First Respondent

BRITISH TELECOMMUNICATIONS PLC

Second Respondent

JUDGES: BEAUMONT, BRANSON AND LEHANE JJ

DATE OF ORDER: 24 JULY 1998

WHERE MADE: SYDNEY

THE COURT ORDERS THAT: 1. The appeal be dismissed with costs. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY NG 298 of 1998

ON APPEAL FROM A JUDGE OF THE FEDERAL COURT OF AUSTRALIA

BETWEEN: STATE OF NEW SOUTH WALES

AppELLant

AND: BT AUSTRALASIA PTY LIMITED

First Respondent

BRITISH TELECOMMUNICATIONS PLC

Second Respondent

JUDGES: BEAUMONT, BRANSON AND LEHANE JJ.

DATE: 24 JULY 1998

PLACE: SYDNEY

REASONS FOR JUDGMENT

BEAUMONT J:

INTRODUCTION This interlocutory appeal, brought by leave of the managing Judge (Sackville J), was heard at the same time as a related appeal between these parties, and Telstra Corporation Limited ("Telstra"), in which judgment is also given today. These reasons should be read together with the reasons in the other appeal. Although the ultimate issues in the appeals are different, some of the background to this appeal appears in my other reasons and need not be restated. His Honour's reasons in this matter are now reported (see BT Australasia Pty Ltd v State of NSW (1998) 154 ALR 202). His Honour dealt with a motion by British Telecommunications plc ("BT") seeking an order that the State of New South Wales ("the State") produce certain documents for BT's inspection. The State had claimed client legal privilege, a claim disputed by BT. However, for the limited purposes of the argument on the motion, BT asked the Court to assume that the privilege could be claimed. BT then submitted that the privilege was lost, for several reasons. Sackville J upheld BT's submission for one of the reasons advanced by BT and ordered that the State produce the documents for inspection by BT. The State now appeals from this order.