Singtel Optus Pty Ltd v Robertson [2024] FCAFC 58

Singtel Optus Pty Ltd v Robertson [2024] FCAFC 58

Leave to appeal was refused because the primary judge's decision was not attended by sufficient doubt. The evidence established that Optus had multiple purposes in commissioning the Deloitte Report, including legal advice or litigation purposes and non-legal management, remediation and cyber-risk review purposes. Optus did not adduce focused and specific evidence showing that the legal purpose was the dominant purpose. Mr Kusalic's evidence was relevant but not determinative, did not adequately address or contextualise the non-legal purposes evidenced by the 3 October 2022 media release and the 11 October 2022 Board resolution, and the absence of direct evidence from the CEO or Board...

Jurisdiction
Australia
Judgment Date
27 May 2024
Procedural Posture
Application for Leave to Appeal / Appeal From Interlocutory Ruling Refusing Legal Professional Privilege Claim
Outcome
Leave to appeal refused.
Legal Topics
['legal Professional Privilege' 'dominant Purpose Test' 'third Party Forensic Investigation Report' 'cyber Attack Investigation' 'unchallenged Evidence' 'adverse Inference' 'leave to Appeal']
['privilege' 'practice and Procedure'] ['legal Professional Privilege' 'dominant Purpose Test' 'third Party Forensic Investigation Report' 'cyber Attack Investigation' 'unchallenged Evidence' 'adverse Inference' 'leave to Appeal']

Case Brief

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Procedural Posture

Application for Leave to Appeal / Appeal From Interlocutory Ruling Refusing Legal Professional Privilege Claim

Legal Issues

  1. 1 ['Whether the Deloitte Report was created or procured for the dominant purpose of Optus obtaining legal advice or legal services for actual or anticipated litigation or regulatory proceedings.' "Whether the primary judge erred in assessing Optus' purpose by reference to the period between 3 and 11 October 2022 rather than 21 October 2022 or 13 July 2023." "Whether the primary judge erred in rejecting or giving limited weight to the unchallenged affidavit evidence of Optus' General Counsel, Mr Kusalic." "Whether the primary judge erred in drawing an adverse inference from Optus' failure to call evidence from its CEO." 'Whether leave to appeal should be granted.']

Ratio Decidendi

Leave to appeal was refused because the primary judge's decision was not attended by sufficient doubt. The evidence established that Optus had multiple purposes in commissioning the Deloitte Report, including legal advice or litigation purposes and non-legal management, remediation and cyber-risk review purposes. Optus did not adduce focused and specific evidence showing that the legal purpose was the dominant purpose. Mr Kusalic's evidence was relevant but not determinative, did not adequately address or contextualise the non-legal purposes evidenced by the 3 October 2022 media release and the 11 October 2022 Board resolution, and the absence of direct evidence from the CEO or Board...

Court Disposition

Leave to appeal refused.

Orders

  • ['Leave to appeal be refused.' "The Applicants pay the Respondents' costs of and incidental to the application."]