investigation of alleged misconduct of employees concerning certificates of analysis
Quick Take
1Waiver of privilege over part of a protected communication extends to the remainder of the communication on the same subject matter where partial disclosure has the real potential to create an inaccurate perception of the waived material, and the remaining parts are necessary to a proper understanding of what was disclosed.
2Where an ASX announcement disclosed specific quantitative findings and exculpatory conclusions from a privileged investigation report, privilege was waived over substantially the entire report because its structure and contents addressed the same subject matter, except for a discrete section dealing with a sufficiently different subject matter.
3The test for the extent of implied waiver remains one of inconsistency (per Mann v Carnell), but considerations of fairness — including the risk of misleading the opposing party — inform the application of that test.
