Don’t say it! Waiver of privilege by partial disclosure

March, 2018

In Ford Motor Company of Australia Limited v Tallevine Pty Ltd (as trustee for the Thornleigh Trading Trust) [2018] NSWSC 136 the NSW Court of Appeal has reminded us again to resist the urge to refer to legal advice unless we are prepared to let the other party read the whole document.

The Court of Appeal has again reminded us of the danger of referring to some part of legal advice. In this case, page 2 of a letter of legal advice was provided to the other party, which promptly called for production of the whole document. The producing party claimed privilege. The Court found privilege had been waived, as the supply of page 2 had not been inadvertent, and what had been supplied was not otherwise severable.

For reasons of fairness, the producing party cannot rely on part of the document without being required to produce the whole document.

Read more here.

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