An Investigation is not Authorized Advice. You Waived Privilege!

Komlotex Pty Ltd v AMP Ltd [2022] NSWSC 1525

The Defendant discovered ~29K paperwork in a piece of litigation and claimed ~9K were privileged.

The Court docket regarded as 27 agent documents. These integrated paperwork about an ASIC investigation relating to “fees for no service” claims.

The Defendant had to verify the files had been privileged. If privileged, the Plaintiffs experienced to demonstrate privilege experienced been waived.

The Defendant experienced self-noted the “fees for no service” concern, engaged numerous huge regulation corporations, and by itself experienced a significant in-household authorized group.

In 2017 the Defendant engaged one particular business to offer the Defendant called results and advice, declaring privilege would attach to both equally.

The Plaintiffs argued the firm was engaged to examine, somewhat than deliver tips, indicating that firm’s work would not be privileged.

The Court docket was also taken to an admission from the Defendant all through the Hayne RC that “it did not require to obtain lawful guidance to know that [it] can not charge anyone for companies that [it is] not providing”.

Importantly privilege is for legal suggestions alternatively than business or PR guidance, while the principle of authorized tips contains what a client should prudently or sensibly do, including in relation to an investigation.

The dominant goal is the thrust of the privilege. A document geared up for a amount of explanations, with none dominant, is not privileged.

In relation to a report despatched by exterior legal professionals, to Defendant’s in-house lawyers, and then to the Defendant’s senior executives, the Court found the dominant purpose of every e-mail was authorized assistance to the Defendant. Consequently they were being privileged.

Equally, in relation to lawful advice on the implications of the report, privilege hooked up.

The Defendant developed the report (but not the linked suggestions) to the ASIC without the need of a declare for privilege.

The Plaintiffs claimed this was a waiver of privilege of all documents worried with the firm’s engagement.

Reference to existence of privileged content is not more than enough for waiver, the contents of the privileged product ought to be relied upon for privilege to be waived.

The Courtroom observed that by waiving privilege in the report, the Defendant did not waive privilege in the tips. Privilege can by waived in excess of the factual investigation report and managed in the subsequent lawful advice presented centered on that report.

The report could be understood with no the aid of the legal assistance.

The Court identified the sample documents have been privileged with no waiver. Plaintiff was ordered to pay out the Defendant’s expenses.