Fire Monitoring Services Pty Limited v Hills Industries Limited [2002] FCA 1142

FEDERAL COURT OF AUSTRALIA

Fire Monitoring Services Pty Limited v Hills Industries Limited [2002] FCA 1142 DISCOVERY – documents not made available on basis of legal professional privilege – documents referred to in subsequent communication – section 126 of the Evidence Act 1995 (Cth) not applicable – whether there has been a waiver of privilege arising from inconsistency, informed by considerations of fairness, between conduct of person claiming privilege and maintenance of confidentiality Evidence Act 1995 (Cth) s 126 Towney v Minister for Land and Water Conservation for New South Wales (1997) 147 ALR 402 cited Daniel v State of Western Australia (1999) 94 FCR 537 cited Esso Australia Resources Ltd v Federal Commissioner of Taxation (1999) 201 CLR 49 cited FIRE MONITORING SERVICES PTY LIMITED v HILLS INDUSTRIES LIMITED N 1242 OF 2001 TAMBERLIN J SYDNEY 16 SEPTEMBER 2002

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY N 1242 OF 2001

BETWEEN: FIRE MONITORING SERVICES PTY LIMITED

(ABN 29 070 144 259)

APPLICANT

AND: HILLS INDUSTRIES LIMITED

(ABN 35 007 573 417)

RESPONDENT

JUDGE: TAMBERLIN J

DATE: 16 SEPTEMBER 2002

PLACE: SYDNEY

REASONS FOR JUDGMENT 1 These reasons relate to an order which I made on 11 September 2002 that documents comprising a covering letter dated 26 November 2001 and an attachment did not attract legal professional privilege and should be produced to the applicant by the respondent. 2 The applicant sought access to the documents on the basis that they were referred to in a later document, dated 23 January 2002, which was made available on discovery pursuant to an earlier ruling by me in this matter.

3 Although it could be said in the present case that it is not possible to understand the document of 23 January unless the documents now in dispute are produced, that is not sufficient because this is not a case in which s 126 of the Evidence Act 1995 (Cth) ("the Act") is applicable. That section on its face relates to the adducing of evidence of a communication or the contents of a document at the hearing. The section has been held not to apply in relation to discovery: see Towney v Minister for Land and Water Conservation for New South Wales (1997) 147 ALR 402 at 412-414, Daniel v State of Western Australia (1999) 94 FCR 537 and Esso Australia Resources Ltd v Federal Commissioner of Taxation (1999) 201 CLR 49, although there is considerable overlap between the considerations relevant to an application of s 126 and the common law test governing waiver of privilege.