Kenquist Nominees Pty Ltd v Campbell (No 5)

The case of Kenquist Nominees Pty Ltd v Campbell (No 5) involved the applicant, Kenquist Nominees, seeking an order for the discovery of documents from various respondents, including QRx, a non-party to the proceeding. The dispute centred on whether certain discovered documents were protected by legal advice privilege, a common law principle that allows a person to resist the production of documents that would reveal confidential communications between a client and their lawyer made for the dominant purpose of obtaining legal advice. The respondents, including Morgans and DibbsBarker, resisted the order on the basis that discovery would reveal communications subject to legal advice privilege.

The legal issues the court had to decide included whether the privilege applied to the documents in question and whether the privilege was waived by limited disclosure to a third party. The court had to determine whether the communications were made for the dominant purpose of giving or obtaining legal advice and whether the privilege was waived by the limited disclosure to Morgans. The court also had to consider whether the privilege was waived by the disclosure of sample documents to the court for examination.

The court concluded that Document 47, an attachment to a "host email," was a draft legal opinion and was privileged. The court rejected the argument that Morgans was authorised to use the confidential material provided to it, including the 2009 Legal Opinion, in these proceedings. The court held that the pleading by Morgans in its defence of these proceedings of the 2009 Legal Opinion was not done "in connection with" Morgans’ services to and relationship with QRx and is not a matter which was relevantly "authorised" by the statement made by Morgans in its retainer letter sent to QRx.

The court ordered the parties to file within 7 days agreed short minutes of order reflecting the reasons for decision or, failing agreement, arrange within 14 days for the matter to be relisted. This case highlights the importance of determining the dominant purpose of communications and the potential consequences of limited disclosure of privileged material.