Fenwick v Wambo Coal Pty Ltd (No. 2) [2011] NSWSC 353

Supreme Court New South Wales

Medium Neutral Citation: Fenwick v Wambo Coal Pty Ltd (No. 2) [2011] NSWSC 353 Hearing dates: 11 to 15 April, 2011 Decision date: 15 April 2011 Jurisdiction: Equity Division Before: White J Decision: Refer to paras [37] and [38] Catchwords: EVIDENCE - client legal privilege - waiver of privilege - whether defendant knowingly and voluntarily disclosed the substance of the evidence within the meaning s 122(3) Evidence Act 1995 - disclosure of the conclusion and reasoning of advice disclosure of substance of the legal advice - whether substance disclosed under compulsion of law within the meaning of s 122(5) Evidence Act 1995 - where defendant disclosed substance of legal advice by giving discovery and producing document for inspection - defendant not under compulsion of law to disclose the substance of legal advice as could have claimed privilege - privilege waived by production for inspection on discovery Legislation Cited: Evidence Act 1995 Cases Cited: Mann v Carnell [1999] HCA 66; (1999) 201 CLR 1 Ampolex Limited v Perpetual Trustee Company Limited (Canberra) (1996) 40 NSWLR 12 Adelaide Steamship Company Ltd v Spalvins [1998] FCA 144; (1998) 81 FCR 360 BT Australasia Pty Ltd v State of New South Wales (No 7) [1998] FCA 294; (1998) 153 ALR 722 NRMA Ltd v Morgan (No 2) [1999] NSWSC 694 Southern Cross Airlines Holdings Ltd (in liq) v Arthur Andersen & Co (a firm) [1998] FCA 963; (1998) 84 FCR 472 SVI Systems Pty Ltd v Best & Less Pty Ltd [2000] FCA 1507 Singapore Airlines v Sydney Airports Corporation [2004] NSWSC 380 Osland v Secretary to the Dept of Justice [2008] HCA 37; (2008) 234 CLR 275 Bailey v Director General, Dept of Land and Water Conservation (2009) 74 NSWLR 333 Assistant Treasurer and Minister for Competition Policy and Consumer Affairs v Cathay Pacific Airways Ltd (2009) 179 FCR 323 AWB Limited v Cole [2006] FCA 571; (2006) 232 ALR 743 Green v AMP Life Ltd [2005] NSWSC 95 In the matter of Southland Coal Pty Ltd (recs and mgrs apptd) (in liq) [2006] NSWSC 899 Category: Interlocutory applications Parties: Ronald Wayne Fenwick (Plaintiff) Wambo Coal Pty Ltd (Defendant) Representation: Counsel: M J Heath (Plaintiff) A R Spencer with C O Gleeson (Defendant) Solicitors: Sneddon & Partners (Plaintiff) Maddocks Lawyers (Defendant) File Number(s):