Asahi Holdings (Australia) Pty Ltd v Pacific Equity Partners Pty Limited (No 2) [2014] FCA 481

FEDERAL COURT OF AUSTRALIA

Asahi Holdings (Australia) Pty Ltd v Pacific Equity Partners Pty Limited (No 2) [2014] FCA 481 Citation: Asahi Holdings (Australia) Pty Ltd v Pacific Equity Partners Pty Limited (No 2) [2014] FCA 481

Parties: ASAHI HOLDINGS (AUSTRALIA) PTY LTD (ACN 135 315 767) AND ANOTHER (NAMED IN THE ATTACHED SCHEDULE) v PACIFIC EQUITY PARTNERS PTY LIMITED (ACN 082 283 949) AND OTHERS (NAMED IN THE ATTACHED SCHEDULE)

File number: VID 87 of 2013

Judge: BROMBERG J

Date of judgment: 13 May 2014

Catchwords: EVIDENCE – Legal Professional Privilege – governing common law principles discussed – whether privilege attached to a copy of a document containing legal work carried out by a lawyer for the benefit of the client where the copy document (Report) was brought into existence for the purpose of being communicated to a third person – principles of waiver at common law discussed – whether disclosure to insurer of Report for the purposes of making a claim under a contract of insurance effected a waiver of privilege – whether disclosure to insurer inconsistent with the confidentiality purpose protected by the privilege – rationale for litigation privilege discussed – whether insurer and insured had commonality or disparity of interests – whether inconsistency arose because privileged material disclosed to a third party without adequate restrictions preserving confidentiality – whether agreement as to confidentiality may be implied – whether by reference to the objective purpose for the provision of the Report it must have been objectively understood that the contents of the Report may pass into the public domain – contextual circumstances including the marking of Report as "Privileged and Confidential" considered – waiver found as disclosure was inconsistent with the maintenance of the confidentiality which the privilege was intended to protect – whether waiver avoided because of common interest privilege – whether waiver also effected by selective disclosure to respondents of most of Report.