Komlotex Pty Ltd v AMP Ltd [2022] NSWSC 1525

Komlotex Pty Ltd v AMP Ltd [2022] NSWSC 1525

The Court held that claims of privilege over the disputed documents—including those arising from the ‘fees for no service’ investigation and Project White—were valid, as their dominant purpose was to provide AMP with legal advice. Privilege was not waived by disclosure of the CU Report to the Royal Commission, as waiver did not extend to associated or subsequent legal advice or in-house advice, nor did it apply to work product arising after the CU Report. Nor was there any issue waiver. The difficulties in adducing direct evidence due to the departure of relevant authors did not deprive AMP of privilege.

Jurisdiction
Australia
Judgment Date
09 November 2022
Procedural Posture
Procedural Ruling (motion) / Motion to Produce Unredacted Documents; Interlocutory Application
Outcome
Motion dismissed with costs; privilege upheld over disputed documents; orders for costs and return of confidential material.
Legal Topics
['client Legal Privilege' 'legal Professional Privilege' 'dominant Purpose' 'waiver of Privilege' 'board Investigations' 'discovery and Inspection' 'litigation Privilege' 'in House and External Legal Advice' 'procedural Fairness']
['evidence' 'civil Procedure' 'commercial Law' 'employment Law'] ['client Legal Privilege' 'legal Professional Privilege' 'dominant Purpose' 'waiver of Privilege' 'board Investigations' 'discovery and Inspection' 'litigation Privilege' 'in House and External Legal Advice' 'procedural Fairness']

Case Brief

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Procedural Posture

Procedural Ruling (motion) / Motion to Produce Unredacted Documents; Interlocutory Application

Legal Issues

  1. 1 ['Whether claims of client legal privilege over documents related to ASIC investigation and employment investigation (‘Project White’) are valid' 'Whether the ‘dominant purpose’ of the documents was the provision of legal advice' 'Whether privilege was waived by disclosure of certain documents, including the CU Report, to the Banking Royal Commission' 'Whether privilege should extend to work performed by external consultants retained via lawyers' 'Whether issue waiver applies due to pleadings on state of mind']

Ratio Decidendi

The Court held that claims of privilege over the disputed documents—including those arising from the ‘fees for no service’ investigation and Project White—were valid, as their dominant purpose was to provide AMP with legal advice. Privilege was not waived by disclosure of the CU Report to the Royal Commission, as waiver did not extend to associated or subsequent legal advice or in-house advice, nor did it apply to work product arising after the CU Report. Nor was there any issue waiver. The difficulties in adducing direct evidence due to the departure of relevant authors did not deprive AMP of privilege.

Court Disposition

Motion dismissed with costs; privilege upheld over disputed documents; orders for costs and return of confidential material.

Orders

  • ['Dismiss the Notice of Motion filed on 19 September 2022.' "Order the plaintiffs to pay the defendant's costs of the motion." 'Order that all copies of Confidential MFI-1 produced to the Court be returned to the defendant forthwith.']