AWB Ltd v Cole (No 5)

In the case of AWB Ltd v Cole (No 5), the court was tasked with determining the admissibility of certain documents in the context of an investigation involving AWB, its legal counsel, and several governmental bodies. The primary issue was whether certain communications between AWB and its lawyers were protected by legal professional privilege. The court had to assess whether these communications met the criteria for legal advice privilege, which includes advice on prudent and sensible actions in relation to the investigations.

The court examined the evidence provided by AWB, which included affidavits from in-house and external lawyers. AWB argued that the term 'legal' used by their lawyers to describe certain communications should be admissible as it was based on the lawyers' specialised knowledge. The Commonwealth, however, objected to the use of the term 'legal' in affidavits by non-lawyers, arguing it was merely a lay opinion not supported by disclosed facts. The court ruled that the term 'legal' used by qualified lawyers could be admissible as it was based on their specialised knowledge. Conversely, the term 'legal' used by non-lawyers was excluded as it did not meet the evidentiary standards.

The court concluded that AWB had not sufficiently proven that the dominant purpose of the communications was to obtain legal advice, particularly for several specific documents. The court found that some documents did not meet the dominant purpose test, while others were not confidential communications as they had been shared with third parties. Furthermore, the court determined that privilege had been waived for many of the documents, either through their use in furtherance of a fraud or through other actions by AWB. The court ordered that AWB and the Commonwealth prepare a minute of orders reflecting the court's findings and scheduled a hearing for any further arguments on the orders.