CTC Resources Nl v Australian Stock Exchange Ltd

(2000) 22 WAR 48; [2000] WASCA 19

Western Australia Court of Appeal

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For Australian Law.

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Interrogate

Catchwords

1. Practice and Procedure
2. › Discovery
3. › Privilege
4. › Public interest immunity
5. › Threshold test for judicial inspection of documents
6. › Whether relevance alone sufficient to enliven discretion to inspect
7. › Whether court must be satisfied inspection will aid determination of challenge
1. Practice and Procedure
2. › Discovery
3. › Privilege
4. › Public interest immunity
5. › Evidentiary onus on party challenging privilege
6. › Whether party may rely on evidence adduced by opposing party
7. › Form of evidence required under O 26 r 12(1)
1. Practice and Procedure
2. › Discovery
3. › Privilege
4. › Public interest immunity
5. › Partial privilege over documents
6. › Whether privilege extends to entire document where concealment of privileged parts destroys sense of remainder
7. › Distinction between intertwined privileged and non-privileged material and material rendered unintelligible by partial disclosure

Quick Take

In Western Australia, relevance of documents is necessary but not sufficient to enliven the court's discretion to inspect documents subject to public interest immunity claims; there must be something in the circumstances that excites the court's attention to the view that inspection will aid determination of the challenge. A party challenging a privilege claim may rely on evidence already before the court (including the opposing party's affidavits) and need not adduce its own extraneous affidavit evidence. Public interest immunity extends to the whole of a document only where privileged and non-privileged material are so intertwined they cannot be separated, or where partial disclosure would make what remains misleading — not merely where concealment destroys the sense of the remainder.