AWB Ltd v Cole (No 6)

AWB Ltd brought an application to the Supreme Court of South Australia against Cole, seeking a declaration of legal professional privilege over certain documents. The dispute arose from an investigation by the Australian Competition and Consumer Commission into the Australian Wheat Board’s involvement in the UN Oil-for-Food Programme. AWB sought to withhold certain documents from disclosure to the ACCC, arguing they were protected by legal professional privilege. The primary legal issues before the Court were whether legal professional privilege applied to the documents in question and, if so, to what extent.

The Court examined the nature of the documents, the circumstances of their creation, and the purpose for which they were prepared. The Court held that privilege attached to certain documents listed in Schedule 1, but only to specific parts of the documents listed in Schedule 2. Legal professional privilege did not apply to the documents listed in Schedule 3. The Court found that the documents in Schedule 1 related to legal advice and were prepared in a lawyer-client relationship for the dominant purpose of obtaining or giving legal advice. The Court also found that parts of the documents in Schedule 2 were prepared for litigation or a real prospect of litigation, thereby attracting privilege. However, other parts of these documents did not meet the criteria for privilege. The Court rejected the claim of privilege for the documents in Schedule 3, as they were not prepared for the dominant purpose of providing legal advice.

The Court's orders reflected its findings on privilege. It declared that privilege attached to certain documents as specified in the orders, while privilege did not attach to others. The Court dissolved the injunctions previously made against Cole, and dismissed the other motions without costs. It also dismissed the application but for the orders regarding privilege, and made no order as to the costs of the proceeding. The Court's decision clarified the scope of legal professional privilege in the context of the investigation and the disclosure of documents.