In Andrews and Telstra Corporation Limited [2008] 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 the proceedings.

BACKGROUND AND ARGUMENTS BEFORE THE TRIBUNAL

The decision concerned two documents produced in answer to a summons:

  • 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'.

DECISION

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 it.

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