Westpac Banking Corporation v 789TEN Pty Ltd [2005] NSWCA 321

Westpac Banking Corporation v 789TEN Pty Ltd [2005] NSWCA 321

The letters in question were not prepared for the dominant purpose of providing legal advice to the client nor for the dominant purpose of the client being provided with professional legal services relating to the proceedings. Instead, the dominant purpose was to provide information to the auditors to fulfill audit requirements. The auditors were not acting as the client’s agent for receiving legal advice. Therefore, ss 118 and 119 of the Evidence Act 1995 did not protect the documents as privileged.

Jurisdiction
Australia
Judgment Date
19 September 2005
Procedural Posture
Civil Appeal / Court of Appeal Decision Following Application for Leave to Appeal
Outcome
Appeal dismissed
Legal Topics
['legal Professional Privilege' 'legal Advice Privilege' 'litigation Privilege' 'audit Process' 'dominant Purpose Test']
['civil Procedure' 'evidence' 'corporations Law'] ['legal Professional Privilege' 'legal Advice Privilege' 'litigation Privilege' 'audit Process' 'dominant Purpose Test']

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Procedural Posture

Civil Appeal / Court of Appeal Decision Following Application for Leave to Appeal

Legal Issues

  1. 1 ['Whether letters between Westpac, its solicitors, and its auditors were protected by legal professional privilege under ss 118 or 119 of the Evidence Act 1995' 'Whether auditors can be agents for purposes of privilege' 'Whether the dominant purpose of the communications was provision of professional legal services to the client as required by s 119']

Ratio Decidendi

The letters in question were not prepared for the dominant purpose of providing legal advice to the client nor for the dominant purpose of the client being provided with professional legal services relating to the proceedings. Instead, the dominant purpose was to provide information to the auditors to fulfill audit requirements. The auditors were not acting as the client’s agent for receiving legal advice. Therefore, ss 118 and 119 of the Evidence Act 1995 did not protect the documents as privileged.

Court Disposition

Appeal dismissed

Orders

  • ['Leave to appeal granted' 'Direct the claimant to file its notice of appeal within seven days of the date of these orders' 'Appeal dismissed' "The claimant to pay the opponent's costs of the ordinary summons for leave to appeal and of the appeal"]