By Joanne Shepard and Vincci Chan -
Snapshot
- Multidisciplinary practices, where both legal practitioners and non-legal practitioners are involved in the work, may be able to establish a lawyer-client relationship sufficient for legal professional privilege.
- It will be necessary to consider legal professional privilege claims over individual documents by reference to the content and context for each document. The relevant test is whether the document in question records communications made for the dominant purpose of giving or receiving legal advice.
- Claiming privilege and assessing such claims over a large volume of documents will give rise to logistical challenges, as well as time and cost issues.
A long awaited decision of the Federal Court of Australia in relation to legal professional privilege (‘LPP’), Commissioner of Taxation v PricewaterhouseCoopers [2022] FCA 278, was handed down on 25 March 2022. The decision was significant given the sheer scope of the documents over which the privilege was claimed and that the context of the claim involved a multidisciplinary practice.
The Commissioner of Taxation sought access to documents under s 353-10 of Sch 1 to the Taxation Administration Act 1953 (Cth) for the purposes of auditing Flora Green Pty Ltd, a company within the JBS Australia group of companies (‘JBS Parties’). He issued notices to produce to a partner of PricewaterhouseCoopers Australia (‘PwC Australia’) and Flora Green Pty Ltd. In response to the notices, LPP was claimed over some 44,000 documents on behalf of the JBS Parties. In response, the Commissioner sought declaratory relief to the effect that approximately 15,500 documents held by the respondents were not covered by LPP (‘Disputed Documents’). The Disputed Documents comprised emails and attachments to emails brought into existence within a particular period.
The Commissioner’s application was based on three grounds:
- The form of the engagements by which PwC Australia purported to provide legal services to the JBS Parties did not establish a lawyer-client relationship sufficient to ground a claim for LPP.
- As a matter of substance, the services provided by PwC Australia to the JBS Parties were not provided pursuant to a lawyer-client relationship sufficient to ground a claim for LPP.
- Each of the Disputed Documents did not record communications made for the dominant purpose of giving or obtaining legal advice from lawyers of PwC Australia.
The first two grounds, if established, would have impugned, on a global basis, the LPP claim with respect to all of the Disputed Documents. The third ground required review of each document.
Given the impracticality of reviewing all of the Disputed Documents, the Court set down for hearing, by way of separate question, determination of whether the Commissioner was entitled to the relief sought with respect to 100 sample documents. Half of the sample was required to be selected by the Commissioner and the balance, by the JBS Parties.
