Australia: General: 12 Principles of privilege applied

Insurance Update

Kirby v Centro Properties Limited (No 2) (2012) 87 ACSR 229

On 10 February 2012, Bromberg J delivered his reasons on an application by PricewaterhouseCoopers (PwC) that various Centro Group (Centro) entities be compelled to produce specified documents for inspection. Centro had resisted the application on the basis that the documents, or parts of them, were subject to legal professional privilege. His Honour dismissed PwC's application, concluding that the materials were privileged.

Bromberg J found that privilege attaches to retainer agreements, notes taken by Centro's company secretary and materials generated by Centro's general counsel. Relevant also is the evidence which will be enough to get a party claiming privilege over the line.

PwC's application was brought in connection with five separate proceedings relating to the misclassification of debt in breach of the continuous disclosure obligations of the Corporations Act 2001. At the relevant time, PwC was Centro's auditor.

In assessing Centro's claim for privilege, his Honour reconfirmed the following 12 principles of legal professional privilege set out in AWB Ltd v Cole and Another (No 5) (2006) 155 FCR 30:

  1. The onus is on the party claiming privilege to prove that the document was brought into existence for the dominant purpose of giving or obtaining legal advice.
  2. This is a question of fact that must be determined objectively.
  3. Evidence identifying the circumstances in which the relevant communication took place and the topics to which the instructions or advice were directed may be required.
  4. For client/lawyer communications, it may be appropriate to assume that legitimate legal advice was being sought, absent any contrary indications.
  5. A "dominant purpose" is the prevailing or paramount purpose.
  6. An appropriate starting point to assess the dominant purpose is to ask what was the intended use or uses of the document.
  7. Legal advice does not extend to advice that is purely commercial or of a public relations character.
  8. Privilege protects the disclosure of documents that record legal work carried out by the lawyer for the benefit of the client whether or not they are actually provided to the client.
  9. Privilege extends to notes, memoranda or other documents (including drafts) that relate to information sought by the client's legal adviser to enable him or her to advise, whether or not they are themselves actually communicated to the client.
  10. Privilege is capable of attaching to communications between a salaried legal adviser and his or her employer, provided that the legal adviser is consulted in a professional capacity in relation to a professional matter and the communications are made in confidence and arise from the relationship of lawyer and client.
  11. Privilege can attach to copies of non-privileged documents if the purpose of bringing the copy into existence satisfies the dominant purpose test.
  12. The Court has power to examine documents over which legal professional privilege is claimed.

Applying these principles to the facts of the case, his Honour found privilege to attach to documents which might not ordinarily be regarded as privileged documents, including:

  1. retainer agreements;
  2. communications between solicitors and potential clients;
  3. notes of in-house counsel; and
  4. handwritten notes of a board member.


While His Honour agreed that generally a retainer was not a document protected by legal professional privilege, he also noted that this proposition is not absolute and that an examination of the specific content of each retainer must be conducted to assess whether they are "within the sphere of protection provided by the privilege". In this case, Bromberg J was satisfied, having reviewed the documents in question, that they contained communications identifying the nature of the advice sought by Centro or from which that advice might be inferred.

Significantly, Bromberg J also held that communications between a solicitor and a prospective client are capable of attracting privilege and that a retainer itself need not exist.

Independent Legal Advisers

Privilege was claimed over communications between Centro and various external lawyers and KPMG. PwC argued that Centro had a multiplicity of purposes in communicating with KPMG in particular and that "the belated involvement of Centro's lawyers" in what it described as a mere "accounting exercise" did not of itself cloak the entirety of the process with a character worthy of attracting legal professional privilege.

In each instance, evidence was given by the relevant solicitor that the sole or dominant purpose in the communication was to give, or for Centro to obtain, legal advice. PwC contended that these were bare assertions by a lawyer as to somebody else's purpose and were inadequate.

Bromberg J disagreed, finding that the solicitor's affidavits, in some instances coupled with evidence taken from contemporaneous documents and in other instances on the basis of the affidavit alone, were sufficient to demonstrate that the communications came into existence for the requisite dominant purpose such that the claim for privilege could be upheld.

Notes of Board Members

Privilege was claimed over substantial handwritten notes taken by the Company Secretary at meetings of the board and an audit and risk management committee meeting. The evidence of the Company Secretary, provided by way of affidavit, was that these notes were prepared by her for Centro's use as a record of what transpired at the meetings but that they nonetheless disclosed confidential communications between Board members and Centro's attending General Counsel/external lawyers and/or disclosed legal advice obtained.

Bromberg J rejected an argument by PwC that Centro had adduced insufficient evidence in the Company Secretary's affidavit to discharge its onus. In reliance on 4 and 10 of Young J's principles, Bromberg J concluded instead that the communications either came into existence for the dominant purpose of a client seeking or obtaining legal advice, or themselves disclosed that legal advice.

General Counsel Communications

Centro claimed privilege over certain communications from its in-house lawyers, including extracts of notes prepared by Centro's General Counsel of Board meetings he had attended. The General Counsel's evidence was that this advice was independent, objective advice "given in his professional capacity and not influenced by others or his personal loyalties, duties or interests". In this way, his evidence attempted to highlight the demarcation between the dual roles of commercial and legal adviser which was considered relevant to such a rolebut for which the commercial character would be insufficient to attract the protection of privilege.

PwC contended that the evidence was too general however Bromberg J again disagreed, upholding the claim for privilege and characterizing the communications as being "between a corporation and its independent legal adviser" notwithstanding that they had emanated from within the company.


The thrust of PwC's argument was that Centro had failed to discharge its burden of establishing the dominant purpose of the communications by either failing to adduce evidence at all or failing to adduce evidence of all of the relevant stakeholders. Bromberg J disagreed, taking the view that it was unnecessary for evidence to be provided by the multiple authors or recipients of each conversation provided that the evidence deposed in affidavits from the solicitors was sufficient to permit a conclusion that the dominant purpose for the creation of the communications was to obtain legal advice. This case is of interest in relation to the broad scope of documents to which privilege was found to apply and to the relatively confined evidenced required to support the claim.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

Some comments from our readers…
“The articles are extremely timely and highly applicable”
“I often find critical information not available elsewhere”
“As in-house counsel, Mondaq’s service is of great value”

Mondaq Advice Centre (MACs)
Related Video
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Check to state you have read and
agree to our Terms and Conditions

Terms & Conditions and Privacy Statement (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

Use of

You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these terms & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.


Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use or performance of information available from this server.

The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.


Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.

Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

If you do not want us to provide your name and email address you may opt out by clicking here .

If you do not wish to receive any future announcements of products and services offered by Mondaq by clicking here .

Information Collection and Use

We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to with “no disclosure” in the subject heading

Mondaq News Alerts

In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.


A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

Log Files

We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.


This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

Surveys & Contests

From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.


If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.


This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to

Correcting/Updating Personal Information

If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to

Notification of Changes

If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

How to contact Mondaq

You can contact us with comments or queries at

If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at and we will use commercially reasonable efforts to determine and correct the problem promptly.