"Investigation isn't legal advice. You waived privilege!"
___
D discovered ~29K documents in a piece of litigation, and claimed ~9K were privileged: [1] The Court considered 27 representative docs. The docs included docs about an ASIC investigation re “fees for no service” claims: [2]
D had to prove the docs were privileged. If privileged, P had to prove privilege had been waived: [6] D had self-reported the “fees for no service” issue, engaged various large law firms, and itself had a big in-house legal team: [17], [18]
In 2017 D engaged one firm to provide D called findings and advice, claiming privilege would attach to both: [24] – [27]
P argued the firm was engaged to investigate, rather than provide advice, meaning that firm’s work would not be privileged: [28]
The Court was also taken to an admission from the D during the Hayne RC that “it did not need to receive legal advice to know that [it] cannot charge somebody for services that [it is] not providing”: [28]
Importantly privilege is for legal advice rather than commercial or PR advice, though the concept of legal advice includes what a client should prudently or sensibly do, including in relation to an investigation: [34] – [37]
The dominant purpose is the thrust of the privilege. A document prepared for a number of reasons, with none dominant, is not privileged: [38], [39]
In relation to a report sent by external lawyers, to D’s in-house lawyers, and then to D’s senior executives, the Court found the dominant purpose of each email was legal advice to D. So they were privileged: [50]
Similarly, in relation to legal advice on the implications of the report, privilege attached: [53] D produced the report (but not the associated advice) to the ASIC without a claim for privilege: [94]
P claimed this was a waiver of privilege of all documents concerned with the firm’s engagement: [95]
Reference to existence of privileged material is not enough for waiver, the contents of the privileged material must be relied upon for privilege to be waived: [99], [100]
The Court found that by waiving privilege in the report, D did not waive privilege in the advice. Privilege can by waived over the factual investigation report, and maintained in the subsequent legal advice given based on that report: [106] The report could be understood without the help of the legal advice.: [106]
The Court found the sample documents were privileged with no waiver. P was ordered to pay D’s costs: [128], [129]
_
If you'd like to contact me please look for James d'Apice or Coffee and a Case Note on your favourite social media spot - I should pop up right away! #coffeeandacasenote #auslaw
