Australian Securities and Investments Commission, in the matter of Whitebox Trading Pty Ltd v Whitebox Trading Pty Ltd

In the Federal Court of Australia, the Australian Securities and Investments Commission (ASIC) sought an advance ruling under section 192A of the Evidence Act 1995 (Cth) that eight specific documents, referred to as the disputed documents, are not precluded from being adduced as evidence by sections 118 and 119 of the Act. The respondents, Whitebox Trading Pty Ltd, Mr Boshoff, and Mr Archer, had previously claimed that these documents were protected by legal professional privilege and that ASIC should not use them in any capacity. The case arose from a complex situation involving index arbitrage trading conducted by Whitebox on behalf of the National Australia Bank (NAB) in 2012, which subsequently led to an investigation by ASIC.

The primary legal issue before the court was whether the disputed documents were created for the dominant purpose of obtaining legal advice or legal services in respect of anticipated legal proceedings, thus rendering them privileged under sections 118 and 119 of the Evidence Act. The court had to assess the evidence presented by the parties and determine the dominant purpose of the creation of the documents. This required a detailed examination of the content and context of the documents, as well as the circumstances under which they were created.

The court found that the evidence provided by the respondents did not support their claims of legal professional privilege. Specifically, the documents themselves and the broader context, including a letter from NAB to ASIC, indicated that the documents were created for NAB's purposes and that NAB was actively seeking and receiving cooperation from Mr Boshoff and Mr Archer to promote NAB's interests. The court concluded that the documents were not created for the dominant purpose of obtaining legal advice or legal services. Therefore, the court granted ASIC's application, ruling that the disputed documents were not precluded from being adduced as evidence by sections 118 and 119 of the Evidence Act. Additionally, the court ordered the respondents to pay ASIC's costs of the application.