In Kirby v Centro Properties Limited (No 2) [2012] FCA 70 Justice Bromberg of the Federal Court rejected an application by PriceWaterhouseCoopers (PWC) for access to various classes of documents as they were the subject of legal professional privilege.
PriceWaterhouseCoopers (PWC) sought access to various documents of Centro Properties Group (“CNP”) and Centro Retail Group (“CER”) in relation to 5 actions in which it was involved relating to the misclassification of debt by which CNP’s current debt was understated and its non-current debt overstated and a consequent breach of the continuous disclosure obligations of the Corporations Act. At the relevant time, PWC was the auditor for CNP and CER.
Justice Bromberg ruled that:
1. Retainer agreements with lawyers for Centro were privileged as parts contained communications which identified the nature of the advice sought by CNP or CER from its lawyers or statements from which the nature of the advice sought might be inferred.
2. Handwritten notes taken by the Company Secretary of CNP and CER and each of their controlled entities prepared by her in her capacity as Company Secretary were also privileged. The notes were taken at Board meetings or Board Audit and Risk Management Committee meetings of the various Centro companies and prepared by her for the use of Centro as a record of what transpired at the meetings which her notes record. Justice Bromberg was satisfied that the exchanges between Board Members and Centro’s lawyers came into existence for the dominant purpose of a client seeking or obtaining legal advice from that client’s lawyer and that those parts of the documents which record those communications are protected from disclosure. He also ruled that notes which were comments made by a Board member adjacent to the comments made by the lawyer were privileged.
3. Documents recording advice by the company’s general counsel and external lawyers were also privileged.
In the reasons for his decision Justice Bromberg set out 12 general principles for assessing such claims.
