Cantor v Audi Australia Pty Ltd [2016] FCA 1391

Cantor v Audi Australia Pty Ltd [2016] FCA 1391

Privilege attached to the communication of legal advice (the Freshfields document) to Volkswagen AG; provision to the KBA occurred in a confidential regulatory context constituting only limited waiver vis-à-vis the KBA, not the applicants. No relevant inconsistency or unfairness in respondents’ conduct or pleadings in the Australian proceedings was demonstrated sufficient to impute waiver. Thus, privilege was not waived and applicants’ claim for access to redacted portions fails.

Jurisdiction
Australia
Judgment Date
22 November 2016
Procedural Posture
Class Action / Interlocutory Application for Access to Documents Subject to Legal Professional Privilege
Outcome
Applications to access redacted portions of documents subject to legal professional privilege dismissed with costs
Legal Topics
['legal Professional Privilege' 'waiver of Privilege' 'confidentiality in Regulatory Disclosure' 'privilege in Cross Jurisdictional Regulatory Investigations' 'dominant Purpose Test for Privilege']
['evidence' 'commercial Law'] ['legal Professional Privilege' 'waiver of Privilege' 'confidentiality in Regulatory Disclosure' 'privilege in Cross Jurisdictional Regulatory Investigations' 'dominant Purpose Test for Privilege']

Case Brief

Summary, issues, holding and outcome

More case intelligence is available

Unlock the full research layer for this judgment.

Full judgment text Downloadable case file Legal principles 1 Authorities cited 2 Party arguments 2 Amounts and remedies 1
Sign in to unlock

Procedural Posture

Class Action / Interlocutory Application for Access to Documents Subject to Legal Professional Privilege

Legal Issues

  1. 1 ['Whether privilege attached to legal advice provided to Volkswagen AG and subsequently communicated to German regulator (KBA)' 'Whether privilege attached to subsequent communications reproducing or referring to privileged advice' 'Whether provision of privileged advice to KBA constituted waiver of privilege' 'Whether subsequent use by the KBA and respondents’ conduct in Australian proceedings resulted in implied or imputed waiver']

Ratio Decidendi

Privilege attached to the communication of legal advice (the Freshfields document) to Volkswagen AG; provision to the KBA occurred in a confidential regulatory context constituting only limited waiver vis-à-vis the KBA, not the applicants. No relevant inconsistency or unfairness in respondents’ conduct or pleadings in the Australian proceedings was demonstrated sufficient to impute waiver. Thus, privilege was not waived and applicants’ claim for access to redacted portions fails.

Court Disposition

Applications to access redacted portions of documents subject to legal professional privilege dismissed with costs

Orders

  • ['The application brought by the applicant to access the redacted portions of documents produced to the Court subject to a claim of legal professional privilege is dismissed with costs for each proceeding']