LEGAL PROFESSIONAL PRIVILEGE – whether implied waiver of privilege is limited to the making of express or implied assertions about the content of confidential communications – whether the primary judge correctly found waiver in the conduct of serving affidavits that contained evidence to the effect that the appellants did not hold anti-competitive purposes in devising and implementing commercial transactions – held implied waiver not limited to assertions about the content of privileged communications – waiver correctly found arising from the opening of the purpose subject-matter to scrutiny.
FILING OF AFFIDAVITS – whether implied waiver of privilege can only arise or be determined when a privilege holder reads affidavits into evidence – whether the filing of an affidavit effects a waiver of any privilege over the contents of the affidavit – whether the filing of an affidavit is capable of effecting an implied waiver of privilege over other communications at the time when production of documents is ordered – held there can be implied waiver before an affidavit is read into evidence at trial – consideration of case management and the overarching purpose of civil practice as relevant to the assessment of inconsistent conduct by a privilege holder – conflicting authorities considered.
Original article available at: https://www.judgments.fedcourt.gov.au/judgments/Judgments/fca/full/2026/2026fcafc0037For more information, see the original judgement.