GSA Industries (Aust) Pty Ltd and Brisbane City Council; GS Technology Pty Ltd (Third Party)

Application number:
1994 L0009
Decision date:
Thursday, Aug 25, 1994
Reported:
(1994) 2 QAR 49

GSA Industries (Aust) Pty Ltd and Brisbane City Council; GS Technology Pty Ltd (Third Party)
(1994 L0009, 25 August 1994) 

In this case, the applicant sought access to letters written to the Brisbane City Council by the third party’s solicitors, concerning alleged infringement of certain patent rights and copyrights to which the third party claimed entitlement, and other documents related to that issue. 

This case explains and illustrates principles relevant to whether legal professional privilege attaches to third party communications, ie documents which are not lawyer-client communications, but communications between the client, or the client’s solicitor or barrister, and a third party who is not an agent of the client, or the client’s solicitor or barrister.  Such third party communications may attract legal professional privilege if they are confidential and made for the sole purpose of obtaining advice or evidence for use in existing or anticipated litigation.  The Information Commissioner held that none of the letters from the third party’s solicitors to the Council satisfied these requirements. 

The Information Commissioner also held that, at common law, legal professional privilege does not attach to communications between a patent attorney and his or her client.  Since s.43(1) of the FOI Act refers only to legal professional privilege, it does not extend to the statutory privilege conferred on communications between a patent attorney and his or her client by s.200(2) of the Patents Act 1990 Cth, even though the scope of that statutory privilege is to be assessed by reference to the scope of legal professional privilege. 

Although the documents in issue contained some information relating to innovative aspects of the third party’s water meter assemblies, the Information Commissioner was not satisfied that the information was exempt under s.45(1)(a), s.45(1)(b) or s.45(1)(c), because of the extent of information that was readily available to the public or the third party’s competitors, through patent specifications lodged by the third party, or 'reverse - engineering' of the third party’s products.