Swaab v Commissioner of the NSW Police Service

The Supreme Court of New South Wales was presented with an appeal by the Commissioner of the NSW Police Service against an interlocutory decision that granted an interlocutory injunction to prevent the police from disclosing documents obtained through a search warrant. The documents were prepared by the company's solicitors in anticipation of the company's deregistration. The dispute centred on whether the legal professional privilege attached to the documents survived the deregistration of the company and whether the company's solicitor had standing to claim privilege on behalf of the company. The Commissioner argued that once the company was deregistered, any privilege ceased, and the documents should be disclosed.

The key legal issue before the court was whether the legal professional privilege continued to protect the documents after the company's deregistration. The court needed to determine whether the privilege survived the company's deregistration and if the solicitor could assert the privilege on behalf of the company post-deregistration. The Commissioner contended that privilege was extinguished upon deregistration, while the solicitor argued that the privilege was intended to protect the client's interests and should continue even after the company's dissolution. The court had to balance the public interest in law enforcement with the protection of legal advice and confidentiality.

The court held that legal professional privilege did survive the deregistration of the company. It determined that the privilege was not inherently tied to the existence of the company but was intended to protect the client's interest in confidentiality. Therefore, the privilege could extend beyond the life of the company if the documents were prepared for the purpose of seeking or giving legal advice. The court further found that the company's solicitor had standing to claim privilege on behalf of the company, as the privilege was intended to protect the client's interest, not the existence of the company itself. Consequently, the interlocutory injunction was upheld, and the documents remained protected from disclosure.