Westpac Banking Corporation v 789Ten Pty Ltd

Westpac Banking Corporation (the claimant) appealed to the Court of Appeal of New South Wales against a decision concerning the discoverability of certain documents. The dispute centred on whether a letter from a client to its solicitors and a letter from those solicitors to the client's auditors were protected by legal professional privilege.

The primary legal issues before the Court of Appeal were whether the documents in question were protected by either legal advice privilege or litigation privilege under the *Evidence Act 1995* (Cth). Specifically, the court had to determine if the letters were prepared for the dominant purpose of providing legal advice to the client, and whether the auditors could be considered agents of the client for the purpose of receiving such legal advice. The court also considered whether the letters were prepared for the dominant purpose of the client being provided with professional legal services.

The Court of Appeal reasoned that for legal advice privilege to apply, the communication must be for the dominant purpose of giving or receiving legal advice. While the letter from the solicitors to the auditors contained legal advice, the court found that the dominant purpose of its preparation was not to provide legal advice to the client, but rather to facilitate the auditors' work. The court also held that the auditors were not acting as agents of the client in receiving legal advice, as their role was distinct from that of the client in seeking legal counsel. Consequently, neither legal advice privilege nor litigation privilege applied to the documents.

The appeal was dismissed, with the claimant ordered to pay the opponent's costs of the summons for leave to appeal and of the appeal.