Australian Securities and Investments Commission v Macleod

In the case of Australian Securities and Investments Commission v Macleod, the Full Court of the Federal Court of Australia addressed the issues of legal professional privilege and waiver in the context of a PwC report concerning accounting irregularities at Noumi, a company. The primary judge had found that the PwC report was protected by legal professional privilege but had also concluded that the privilege had been waived by the disclosure of the report to the Australian Securities and Investments Commission (ASIC). The appeal by Noumi and Mr Macleod centred on whether the primary judge erred in applying the dominant purpose test and in finding that privilege had been waived.

The court found that the primary judge did not err in applying the dominant purpose test, which requires that the privilege be claimed for documents created for the dominant purpose of providing or receiving legal advice. However, the court held that the primary judge erred in concluding that the privilege had been waived. The court examined whether the voluntary disclosure of the PwC report to ASIC was inconsistent with the maintenance of confidentiality and whether any "derivative use" or "derivative disclosure" of the report amounted to a waiver of privilege. The court found no such waiver occurred.

The Full Court allowed the appeal, finding that the primary judge's conclusion on waiver was incorrect but did not affect the application of the dominant purpose test. The court emphasised that the circumstances of each case must be considered carefully, and the principles established in Singtel Optus Pty Ltd v Robertson were relevant. The orders included that the parties confer on the terms of minutes of order and on any confidential information to be redacted, with specific timelines and confidentiality protocols to be observed.