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  • The Federal Court of Australia has ruled that legal professional privilege will not always be reliable for protecting third-party reports.
  • The quality of evidence instructing a court’s objective inquiry as to the dominant legal purpose will be crucial to claiming legal profession privilege.
  • This case is a grave reminder that legal professional privilege should not be assumed.

The recent decision made by the Federal Court of Australia in Singtel Optus Pty Ltd v Robertson [2024] FCAFC 58 is a reminder of the clear limits of legal professional privilege (‘LPP’). The three judges rejected the appeal by Optus against a decision ruling a forensic report, commissioned in the wake of the 2022 data breach, was not covered by LPP.

This judgment provides very useful guidance on how to prove a dominant legal purpose. It comes at a time when the use of LPP is under scrutiny in many contexts. Following the PwC tax scandal, the inquiry into the Star Casino and this case, practitioners need to think seriously about their use of LPP.

In dismissing Optus’ application, the Court found there was no error at first instance where the primary judge held Optus failed to discharge its onus in establishing LPP. Specifically, it failed to establish, on the evidence, that the dominant purpose in obtaining the report was for legal advice or use in litigation; as opposed to it merely being one of a number of purposes.

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