In Andrews and Telstra Corporation Limited  AATA
943, the Administrative Appeals Tribunal (Tribunal) found that
legal professional privilege of two documents had not been waived
despite being referred to in other documents filed and served in
BACKGROUND AND ARGUMENTS BEFORE THE TRIBUNAL
The decision concerned two documents produced in answer to a
A letter from Ms Andrews's solicitor to Dr Humphries.
A letter from Dr Humphries to Ms Andrews's solicitor.
Telstra argued that there was an implied waiver of these two
documents. It pointed to the reliance by Ms Andrews on a report
from a Dr Sharman, which referred to the letter from Dr Humphries.
Dr Sharman's report stated that he had been provided with the
letter of Dr Humphries and that it was 'considered in
preparation of this report'.
The Tribunal found that it 'should not lightly decide there
has been an implied waiver' and referred to 'the high
public interest which the privilege defends': Commissioner
of Australian Federal Police and Propend Finance Pty Ltd and
ors (1997) 188 CLR 501 at 502. The Tribunal also referred to
authorities that mere delivery of a privileged document to a third
party is not of itself a waiver of privilege.
Dr Sharman had given evidence in person and via email that Dr
Humphries's opinion had no bearing on his opinions and that he
tried to form his own opinion. The Tribunal concluded that Dr
Sharman had not relied on the contents of the privileged document,
and therefore there was no act inconsistent with claiming privilege
over the documents.
The Tribunal rejected Telstra's submission that Dr
Sharman's act of disregarding Dr Humphries's opinion was a
waiver of legal professional privilege. It found that there was no
evidence to indicate that Dr Sharman had disregarded or discounted
any relevant factors arising from Dr Humphries's letter.
The Tribunal found that the legal professional privilege
attached to the two documents had not been waived. It was left open
to Telstra to raise the issue at the substantive hearing if there
was evidence of reliance on Dr Humphries's letter.
SIGNIFICANCE OF DECISION TO EMPLOYERS
Employers may take from the decision:
The decision indicates that the Tribunal will be cautious in
finding an implied waiver.
There is not necessarily an implied waiver of a document where
it is only referred to, without more, in another document relied on
by a party.
As this was a preliminary hearing, a different decision could
be made at the substantive hearing if there is evidence to support
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