Awb V Cole Legal Professional Privilege


Concluding that the 10 documents did not attract privileges, Judge Young noted that the transaction had been “deliberately and dishonestly structured by the AWB in such a way as to distort the true nature and purpose of the truck fees and to impose a trick on the United Nations.”13 14 N2 – The principle set out in Mann v. Carnell (1999) 201 CLR 1 states that the solicitor-client privilege of a communication is tacitly waived if the disclosure and use of the communication is inconsistent with the preservation of the confidentiality provided by the privilege. In AWB Ltd v. Cole (no. 5) (2006) 155 FCR 30 – another important case of tacit waiver – but devoted several paragraphs to Young J. discussing the waiver of “related documents” in connection with other notices of exemption. Zantran Pty Ltd v. Crown Resorts Ltd [No. 2] [2020] FCA 1024 and Perth Airport Pty Ltd v Qantas Airways Ltd [No. 2] [2021] WASC 342 argued that there was a waiver of related documents as described by Young J.

in AWB. Taken together, these decisions are useful for understanding whether there is a “waiver of associated material” and the relationship between the principle of inconsistency and associated material. This case note first deals with Justice O`Callaghan`s decision on a legal issue in the Zantran case before considering his application by Judge Le Miere at Perth Airport. Young J.A.`s review of the solicitor-client privilege fraud exception was considered in the iron filings claim,12 as noted above. Young J.A.`s reasoning confirms that the exemption from solicitor-client privilege includes fraud, criminal activity and actions taken for illegal or improper purposes, and also extends to “deception” and “bills.” Judge Young ruled that 10 documents for which the Australian Wheat Board (AWB) claimed solicitor-client privilege were not protected because of the fraud exception. In the recent case of AWB Limited v. the Honourable Terence Rhoderic Hudson Cole (No. 5) [2006] FCA 1234 (AWB case), Young J. investigated, among other things, the scope of the “fraud exception” for solicitor-client privilege. Of the 900 documents on which the AWB claimed privileges, 10 requested documents related to the settlement of iron claims.

According to Judge Young, these 10 documents were created to promote an inappropriate and dishonest purpose, namely wheat price inflation in two contracts, to extract money from the United Nations escrow account and use that money to satisfy the demand for iron discs. The AWB case makes it clear that the fraud exception “covers a broad type of fraud, criminal activity or acts taken for illegal or improper purposes and extends to `cunning` and `invoices`.1 The fraud exception is based on grounds of public policy. As a result, it is flexible enough to cover a range of situations where the protection of confidential communications between a lawyer and a client is not in the public interest. Communication will not be privileged if there is prima facie evidence of dishonesty or an inappropriate purpose. The political basis of the fraud exception was discussed in the Kearney case before the High Court.6 The High Court held that solicitor-client privilege was not linked to legal advice sought by the Northern Territory Government for the purpose of rejecting a claim of national title. The AWB case serves to clarify the scope of the fraud exception to solicitor-client privilege and may lead to the extension of the application of the fraud exception. The case further shows that lawyers (including in-house lawyers) must be vigilant when it comes to the circumstances in which privileges are to be claimed. It is generally accepted that communication between a lawyer and a client that facilitates a criminal offence or fraud is not protected by solicitor-client privilege. Although the principle is commonly referred to as the exclusion of solicitor-client privilege from fraud, Young J. held that “it does not exhaust its full scope”.3 On the contrary, “the principle encompasses a broad type of fraud, criminal activity, or acts taken for illegal or improper purposes” and extends to `deception` and `deception`.4 In the legal context, a “hoax” refers to a number of acts that “take the form of a legally effective transaction, but which the parties do not intend to have obvious or legal consequences”.5 In the UK Barclays Bank case,7 Lord Justice Schiemann stated that “public policy does not require that communications from those who misunderstand the law can be privileged in which those who misunderstand the law, who understand the situation well, have no privileges. 8 12.