Case: Cowell v British American Tobacco Australia Services Ltd [2007] VSCA 301
Outcome: discussed
However that may be, the fact of the matter is that ASIC now has possession of information which, at least in theory, could be subject to a valid claim of privilege by AWB. The question then is whether ASIC is entitled to make use of that information, notwithstanding the possible privilege claim, and the answer to that question is yes. As the Court of Appeal in Cowell v British American Tobacco Australia Services Ltd [2007] VSCA 301 said (at [32]): [A]lthough it is now accepted that legal professional privilege is more than just a rule of evidence or procedure, it is clear that it is not to be characterised as a rule of law conferring individual rights sounding in damages or an injunction to restrain an apprehended or continued breach [ Commissioner of Australian Federal Police v Propend Finance Pty Ltd [1997] HCA 3 ; (1997) 188 CLR 501 at 565 (Gummow J)]. Consequently, once information in a privileged document has come into the hands of a party to litigation, even as a result of compulsive process which is later reversed, the fact that the document was and remains privileged does not of itself prevent that party from making use of the information [ Calcraft v Guest [1898] 1 QB 759, 763-4; Baker v Campbell [1983] HCA 39 ; (1983) 153 CLR 52 (Gibbs CJ, in diss ), 67, 80 (Mason J, in diss ) 101, 109-110 (Brennan J in diss ), 129 (Dawson J); Trevorrow v State of South Australia (No 4) (2006) 94 SASR 64 , 70 (Doyle CJ), 80 (Debelle J), 101 (White J); Heydon, Cross on Evidence , 7 th Aust Ed (2004) [25025]. 40 Secondly, equity may restrain use of confidential information improperly obtained , especially where the information is used as a "springboard for a claim or defence in litigation": Cowell v British American Tobacco Australia Services Ltd [2007] VSCA 301 at [15] - [17] . As Emmett J noted in MM , there is nothing to prevent the holder of a claim for privilege making a privilege claim prior to the tendering of evidence against the holder of any information obtained by ASIC in circumstances not giving rise to a waiver: eg ss 76 - 83 of the ASIC Act ; ss 118 and 122 of the Evidence Act 1995 (Cth) and British Coal Corporation v Dennis Rye Ltd (No 2) [1988] 3 All ER 816. Put another way, "the right of the holder of the privilege not to have privileged material used in evidence against him or her [or it]" is not affected by the disclosure of the privileged material by a party within the scope of the privilege but not entitled to control its exercise: MM at [38]. This is a natural consequence of the basic principle that only the holder of the privilege may waive it. Moreover, although not applicable in the present case (because the third party here is a corporation, which has no privilege against self-incrimination: Daniels at [31]), that preservation of privilege extends not only to legal professional privilege but also privilege against self-incrimination because the ASIC Act abrogates privilege against self-incrimination (s 68(1)) and then provides a "use immunity" to the examinee in relation to information obtained in a s 19 examination where the requirements of s 68(2) are satisfied: s 68(3) of the ASIC Act . Interestingly, unlike other Commonwealth legislation, the "use immunity" in the ASIC Act only applies to persons in relation to the making of an oral statement or the signing of a record and not to the production of documents: s 76(1)(d) of the ASIC Act ; see also Privilege in Perspective , ALRC Report No 107 (2007) at Ch 7 and in particular, paras [7.65] [7.69] and [7.103] and [7.104].