In the matter of Northern Energy Corporation Limited [2020] NSWSC 1073

In the matter of Northern Energy Corporation Limited [2020] NSWSC 1073

Disclosure of Baker McKenzie's privileged advice by New Hope to Deloitte, the auditor, for the purpose of an audit and under express conditions of confidentiality, constituted a limited waiver of legal professional privilege to Deloitte only. Such disclosure did not amount to waiver vis-à-vis the relevant subsidiaries or the world at large, as confidentiality was maintained and the advice was not provided for the dominant purpose of furnishing it to the subsidiaries, but for auditing purposes related to the parent. The evidence, though minimal, supported the existence of privilege, and audit-related references did not waive privilege generally.

Jurisdiction
Australia
Judgment Date
14 August 2020
Procedural Posture
Claim for Privilege / Interlocutory / Application for Access Orders
Outcome
Claim for privilege upheld.
Legal Topics
['legal Professional Privilege' 'waiver of Privilege' 'auditor Access' 'limited Waiver' 'confidentiality in Audit Context' 'dominant Purpose Test']
['equity' 'corporations Law'] ['legal Professional Privilege' 'waiver of Privilege' 'auditor Access' 'limited Waiver' 'confidentiality in Audit Context' 'dominant Purpose Test']

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Procedural Posture

Claim for Privilege / Interlocutory / Application for Access Orders

Legal Issues

  1. 1 ["Whether New Hope established a claim for legal professional privilege over Baker McKenzie's advice as distinct from its subsidiaries; whether disclosure of advice to auditor Deloitte constituted a limited waiver, a waiver to subsidiaries, or a waiver generally; whether privilege claims satisfied evidentiary requirements; whether audit disclosures waived privilege more widely."]

Ratio Decidendi

Disclosure of Baker McKenzie's privileged advice by New Hope to Deloitte, the auditor, for the purpose of an audit and under express conditions of confidentiality, constituted a limited waiver of legal professional privilege to Deloitte only. Such disclosure did not amount to waiver vis-à-vis the relevant subsidiaries or the world at large, as confidentiality was maintained and the advice was not provided for the dominant purpose of furnishing it to the subsidiaries, but for auditing purposes related to the parent. The evidence, though minimal, supported the existence of privilege, and audit-related references did not waive privilege generally.

Court Disposition

Claim for privilege upheld.

Orders

  • ['No person be given access to Packet S-4 and Packet S-5 other than New Hope Corporation Limited and Deloitte Touche Tohmatsu.' 'Packet S-4 and Packet S-5 be returned to Deloitte Touche Tohmatsu, and may be uplifted by the solicitors for Deloitte Touche Tohmatsu and returned to Deloitte Touche Tohmatsu.' 'New Hope...