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. 4 Counsel for the applicant submits that the controlling principle is whether there has been a waiver of privilege arising from inconsistency, informed by considerations of fairness, between the conduct of the person claiming the privilege and the maintenance of the confidentiality: see Mann v Carnell (1999) 201 CLR 1 at 13, where the High Court considers the principles relating to waiver of privilege at common law. It is said that it would be unfair in the present circumstances to refuse discovery of documents which would disclose the context in which the later document came into existence. 5 In the present case the document of 23 January on its face addresses a number of itemised matters or paragraphs which are clearly referable to those set out in the earlier documents. In those circumstances it is said that it would be inconsistent and unfair to disclose only the later document out of its temporal and textual context. I accept this submission. 6 I have inspected the documents in question and I consider that, with one qualification, the letter of 26 November 2001 should be made available together with the attachment. The attachment is not on its face privileged when read together with the covering letter. It does not appear to have been made for the dominant purpose of seeking legal advice or for use in legal proceedings. Furthermore, the later document which has been produced is unintelligible in a number of significant respects, without the context provided by the earlier information. 7 The exception which I make to the order for disclosure concerns the second paragraph of the letter dated 26 November 2001. This paragraph contains statements which I consider came into existence for the dominant purpose of obtaining legal advice. Accordingly, I consider that the second paragraph of the letter dated 26 November 2001 need not be disclosed. 8 The applicant seeks an order for costs on this application but in the circumstances, having regard to the outcome, I am not persuaded that any order should be made as to the costs of or incidental to this hearing. I certify that the preceding eight (8) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Tamberlin. Associate: Dated: 16 September 2002 Counsel for the Applicant: I M Jackman Solicitor for the Applicant: Mallesons Stephen Jaques Counsel for the Respondent: D R Sibtain Solicitor for the Respondent: Blessington Judd Date of Hearing: 11 September 2002 Date of Judgment: 16 September 2002