Robertson v Singtel Optus Pty Ltd [2023] FCA 1392

Robertson v Singtel Optus Pty Ltd [2023] FCA 1392

The Optus respondents did not discharge their onus of establishing that the Deloitte report was created for the dominant purpose of obtaining legal advice or for use in litigation or regulatory proceedings. The evidence showed multiple purposes, including non-privileged purposes of identifying the circumstances and root causes of the cyber-attack, reviewing cyber-risk management, supporting customers, rectification and rebuilding trust. The 3 October 2022 media release, the Board materials and resolutions, the absence of direct evidence from the CEO or Board members, and the vagueness of the general counsel's evidence meant the requisite dominant legal purpose was not proved. If privilege...

Jurisdiction
Australia
Judgment Date
10 November 2023
Procedural Posture
Interlocutory Application for Discovery and Inspection Concerning a Legal Professional Privilege Claim / Reasons for Judgment on the Applicants' Challenge to Privilege Over the Deloitte Report and Related Material; Consequential Orders to Be Proposed
Outcome
Privilege claim over the Deloitte report not made out; waiver argument rejected; parties to file proposed minutes of orders and liberty to apply.
Legal Topics
['dominant Purpose Test' 'third Party Report' 'cyber Attack Investigation' 'waiver of Privilege' 'discovery and Inspection' 'regulatory Investigations']
['legal Professional Privilege' 'civil Procedure' 'privacy and Data Breach' 'regulator and Consumer Protection'] ['dominant Purpose Test' 'third Party Report' 'cyber Attack Investigation' 'waiver of Privilege' 'discovery and Inspection' 'regulatory Investigations']

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Procedural Posture

Interlocutory Application for Discovery and Inspection Concerning a Legal Professional Privilege Claim / Reasons for Judgment on the Applicants' Challenge to Privilege Over the Deloitte Report and Related Material; Consequential Orders to Be Proposed

Legal Issues

  1. 1 ['Whether the Deloitte report concerning the September 2022 cyber-attack was created for the dominant purpose of Optus obtaining legal advice or for use in litigation or regulatory proceedings.' 'Whether documents prepared for the purpose of providing instructions to Deloitte and documents provided to Deloitte were privileged.' 'Whether, if privilege existed, Optus waived privilege by public statements concerning the Deloitte review.']

Ratio Decidendi

The Optus respondents did not discharge their onus of establishing that the Deloitte report was created for the dominant purpose of obtaining legal advice or for use in litigation or regulatory proceedings. The evidence showed multiple purposes, including non-privileged purposes of identifying the circumstances and root causes of the cyber-attack, reviewing cyber-risk management, supporting customers, rectification and rebuilding trust. The 3 October 2022 media release, the Board materials and resolutions, the absence of direct evidence from the CEO or Board members, and the vagueness of the general counsel's evidence meant the requisite dominant legal purpose was not proved. If privilege...

Court Disposition

Privilege claim over the Deloitte report not made out; waiver argument rejected; parties to file proposed minutes of orders and liberty to apply.

Orders

  • ['Within 7 days of the date hereof the parties file and serve proposed minutes of orders to give effect to these reasons.' 'Liberty to apply.']