Zantran Pty Limited v Crown Resorts Limited (No 2) [2020] FCA 1024

FEDERAL COURT OF AUSTRALIA

Zantran Pty Limited v Crown Resorts Limited (No 2) [2020] FCA 1024 File number(s): VID 1317 of 2017

Judge(s): O'CALLAGHAN J

Date of judgment: 21 July 2020

Catchwords: PRACTICE AND PROCEDURE – application for inspection of discovered documents over which claims to legal professional privilege made – where folder of documents provided to court for examination PRACTICE AND PROCEDURE – where application made at interlocutory stage – where common law applies – whether claims to legal professional privilege proved – whether privilege waived EVIDENCE – principle to be applied in determining whether waiver of legal professional privilege occurs at common law is that stated in Mann v Carnell (1999) 201 CLR 1, especially at [29] – no species of waiver described as "associated material waiver" recognised EVIDENCE – whether waiver of legal professional privilege extends to documents dealing with subject matter not pleaded by applicant EVIDENCE – whether waiver of legal professional privilege extends to documents brought into existence after the pleaded "Relevant Period" which incorporate or attach privileged communications made before or during the Relevant Period

Legislation: Australian Securities and Investments Commission Act 2001 (Cth) Competition and Consumer Act 2010 (Cth) Sch 2 Corporations Act 2001 (Cth) Evidence Act 1995 (Cth) Federal Court of Australia Act 1976 (Cth) Pt IVA

Cases cited: Australian Competition and Consumer Commission v Prysmian Cavi e Sistemi Energia SRL (No 10) (2015) 235 FCR 593 Attorney-General (NT) v Maurice (1986) 161 CLR 475 AWB Ltd v Cole (No 5) (2006) 155 FCR 30 Banque Commerciale SA (in liq) v Akhil Holdings Ltd (1990) 169 CLR 279 British American Tobacco Australia Services Ltd v Cowell (2002) 7 VR 524 Commissioner of Australian Federal Police v Propend Finance Ltd (1997) 188 CLR 501 Commissioner of Taxation v Rio Tinto Ltd (2006) 151 FCR 341 Daniels Corporation International Pty Ltd v Australian Competition and Consumer Commission (2002) 213 CLR 543 DSE (Holdings) Pty Ltd v Intertan Inc (2003) 127 FCR 499 Ensham Resources Pty Ltd v AIOI Insurance Company Ltd (2012) 209 FCR 1 Esso Australia Resources Ltd v Federal Commissioner of Taxation (1999) 201 CLR 49 Federal Commissioner of Taxation v Spotless Services Ltd (1996) 186 CLR 404 Grant v Downs (1976) 135 CLR 674 Hartogen Energy Ltd (in liq) v Australian Gas Light Company (1992) 36 FCR 557 Kennedy v Wallace [2004] FCA 332; 208 ALR 424 Kennedy v Wallace (2004) 142 FCR 185 Kenquist Nominees Pty Ltd v Campbell (No 5) [2018] FCA 853 Macquarie Bank Ltd v Arup Pty Ltd [2016] FCAFC 117 Mann v Carnell (1999) 201 CLR 1 Mitsubishi Electric Australia Pty Ltd v Victorian WorkCover Authority (2002) 4 VR 332