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Evidence – legal professional privilege at common law – waiver…

…whether forensic report attracts legal professional privilege – whether privilege is waived over whole or part of report – whether court has power to examine document to determine issue of partial waiver

In TerraCom Ltd v Australian Securities and Investments Commission [2022] FCA 208 (11 March 2022), the court upheld a claim by the applicant (TerraCom) that legal professional privilege attached to a forensic investigation report (PwC report).

The PwC report had been produced to be given to TerraCom’s solicitors so that they could provide legal advice to TerraCom. TerraCom sought a declaration that it was not obliged to produce the PwC report to the Australian Securities and Investments Commission (ASIC) and that ASIC was not entitled to inspect it.

Stewart J considered whether TerraCom had waived privilege in part or in full by several disclosures. Some of the disclosures were to a communications advisory firm, Teneo, that TerraCom had appointed and which produced draft media statements that were not released.

The PwC report had not been provided to Teneo. The court found that Teneo was bound by confidentiality and the disclosures to it did not result in waiver of privilege in the PwC report. The other disclosures were by way of Australian Securities Exchange (ASX) announcements and an open letter to shareholders.

One of the ASX announcements referred to but did not say what the outcome of the PwC report was, apart from stating that TerraCom believed the allegations against it were totally unfounded. The court found that this was a statement of belief, which did not disclose the substance or effect of the advice and therefore did not amount to a waiver.

However, both the letter to shareholders and subsequent ASX announcements referred to allegations against TerraCom’s CEO and CFO, and stated “an independent forensic investigation was conducted and found no evidence of wrongdoing”. The court found that these disclosures were inconsistent with the maintenance of privilege in the report, and it would be unfair not to grant access to the report to ASIC.

The court also considered whether privilege had been waived over the whole of the report, determination of which would be difficult without examining the report. ASIC opposed inspection by the court of the report, submitting that a court should only examine a disputed document at the invitation of the party disputing the privilege.

The court formed the view that it would inspect the report, relying on broad statements of the discretion to inspect documents by the High Court in Grant v Downs [1976] HCA 63; 135 CLR 674 and the NSW Court of Appeal in Rinehart v Rinehart [2016] NSWCA 58.

On inspection, the court considered that it was not possible to fully comprehend the disclosed parts of the report without disclosure of the whole. Accordingly, the court found that the partial disclosure by TerraCom had led to a waiver of legal professional privilege in respect of the whole report.

Shanta Martin is a barrister at the Victorian Bar, ph (03) 9225 7222 or email shanta.martin@vicbar.com.au. The full version of these judgments can be found at www.austlii.edu.au. Numbers in square brackets refer to a paragraph number in the judgment.

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