General: 12 Principles of privilege applied

Kirby v Centro Properties Limited (No 2) (2012) 87 ACSR 229

On 10 February 2012, Bromberg J delivered his reasons on an application by PricewaterhouseCoopers (PwC) that various Centro Group (Centro) entities be compelled to produce specified documents for inspection. Centro had resisted the application on the basis that the documents, or parts of them, were subject to legal professional privilege. His Honour dismissed PwC's application, concluding that the materials were privileged.

Bromberg J found that privilege attaches to retainer agreements, notes taken by Centro's company secretary and materials generated by Centro's general counsel. Relevant also is the evidence which will be enough to get a party claiming privilege over the line.

PwC's application was brought in connection with five separate proceedings relating to the misclassification of debt in breach of the continuous disclosure obligations of the Corporations Act 2001. At the relevant time, PwC was Centro's auditor.

In assessing Centro's claim for privilege, his Honour reconfirmed the following 12 principles of legal professional privilege set out in AWB Ltd v Cole and Another (No 5) (2006) 155 FCR 30:

The onus is on the party claiming privilege to prove that the document was brought into existence for the dominant purpose of giving or obtaining legal advice. This is a question of fact that must be determined objectively. Evidence identifying the circumstances in which the relevant communication took place and the topics to which the instructions or advice were directed may be required. For client/lawyer communications, it may be appropriate to assume that legitimate legal advice was being sought, absent any contrary...