The recent decision of Justice Jessup of the Federal Court of Australia in Crisp, in the matter of ACN 069 895 585 Pty Ltd (in liq) v ACN 069 859 585 Pty Ltd (in liq) (Crisp) has upheld a liquidator's claims of privilege over communications with legal advisers relating to legal costs.

The former liquidator of a company made an application to the Court seeking orders for his remuneration. A creditor of the company filed an objection to the orders.

During discovery in the proceedings, the liquidator claimed privilege over communications with his legal advisors relating to the preparation of other current and contemplated proceedings.

The creditor challenged the liquidator's claims and argued that Liquidator had waived privilege in those documents by bringing proceedings for approval of his remuneration. The creditor claimed that by seeking confirmation from the Court of the reasonableness of his costs, the liquidator had put in issue the content of communications with his legal advisors thereby opening the documents to scrutiny.

Justice Jessup rejected the creditor's argument. He found the question of whether it was reasonable for a liquidator to pay for legal advice does not necessarily put in issue the nature of the advice received.
The judge observed that some instances may arise where privilege could be lost in respect of specific communications with legal advisors where circumstances dictated. However, the creditor's claim in this case was not argued in relation to specific documents but on the basis that legal professional privilege was waived in relation to all documents by the very fact of the application for remuneration. The judge rejected that argument and observed that it would be regrettable if a liquidator was discouraged from obtaining legal advice because of an apprehension that privilege in such advice could be lost in subsequent claims for remuneration.

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