Case: Cadbury Schweppes Pty Ltd v Amcor Ltd (2008) 246 ALR 137
Outcome: cited
In the course of argument, ASIC appeared to suggest there were qualifications to the general proposition that the ASIC Act did not abrogate legal professional privilege. The qualifications were, first, that the ASIC Act is silent as to whether a person other than a lawyer may refuse to give information on the ground that it would disclose a communication for which the person claims legal privilege. If that observation by ASIC was intended to provide support for a contention that an individual, not a lawyer, could be compelled by ASIC to disclose information for which the individual had a claim for legal professional privilege, then that contention is rejected. It is rejected because it finds no support in the Act and is contrary to authority ( Daniels ). There is no basis for distinguishing between a lawyer and an individual in the context of legal professional privilege. So much is made clear from the express words of s 69 of the ASIC Act . In the circumstances specified (which includes ASIC's powers of investigation, examination and information gathering in Pt 3) , a lawyer may refuse to comply with a requirement to give information or produce a book, where to do so would involve the disclosure of a privileged communication with the lawyer in their capacity as a lawyer " unless ... the person to whom, or by or on behalf of whom, the communication was made consents to the lawyer complying with the requirement" (emphasis added): s 69(2). In other words, consistent with authority, the section proceeds on the premise that the holder of the privilege (being the client regardless of whether the client is an individual or a body corporate) must consent to the disclosure of the privilege it holds. No other party is able to waive the privilege; it is the holder of the privilege (the client) that must act inconsistently with the maintenance of that privilege for privilege to be waived: see Cadbury Schweppes Pty Ltd v Amcor Ltd (2008) 246 ALR 137 at [17]. Any other result is contrary to the fundamental principles summarised in [21] and [22] above. 26 On the assumption that, at the outset of a s 19 examination, ASIC told an examinee that legal professional privilege may be availed of by that person to resist the giving of information or the production of documents that would reveal communications between a client and his or her lawyer made for the dominant purpose of giving or obtaining legal advice or the provision of legal services, then disclosure by an examinee or witness of information in which he or she holds the privilege would constitute an act inconsistent with the maintenance of that privilege and privilege would be waived: see Cadbury 246 ALR 137 at [13]. So much may be accepted. It is consistent with the established principles on waiver. 27 If ASIC's submission is intended to suggest that if that same person (for example, an employee, director, consultant to, but not a legal adviser of, a third party) was privy to the privileged communications of the third party, then ASIC could compel production of that privileged information, that contention should be rejected for the reasons outlined in [21] and [22] above.