Carey v Korda

(2012) 45 WAR 181; [2012] WASCA 228

Western Australia Court of Appeal

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Interrogate

Catchwords

1. Evidence
2. › Privilege
3. › Legal professional privilege
4. › Solicitor's bill of costs
5. › Whether bills of costs and recharge schedules reveal privileged communications
6. › Sufficiency of evidence to establish privilege claim
7. › Whether blanket claim for privilege over all narratives sustainable
1. Evidence
2. › Privilege
3. › Legal professional privilege
4. › Receivership
5. › Whether solicitors engaged by receiver and manager are engaged to act for company or for receivers as principals
6. › Nature of agency relationship between receiver and company
1. Evidence
2. › Privilege
3. › Legal professional privilege
4. › Waiver
5. › Whether forwarding invoices to company in receivership for payment constitutes waiver
6. › Objective inconsistency test
7. › Mann v Carnell
1. Evidence
2. › Privilege
3. › Legal professional privilege
4. › Statutory abrogation
5. › Whether Legal Practice Act 2003 (WA) or Legal Profession Act 2008 (WA) abrogate privilege in respect of bills of costs
6. › Legal Practice Act 2003 (WA), ss 201, 228, 232, 234
7. › Legal Profession Act 2008 (WA), ss 467, 468, 469

Quick Take

Receivers and managers appointed out of court who engage solicitors do so as principals, not as agents of the company in receivership, and accordingly hold the legal professional privilege over communications with those solicitors. A blanket claim for privilege over the entirety of solicitors' bills of costs cannot be sustained by evidence that merely asserts the 'subject matter' of advice without establishing that the redacted entries would reveal the content or nature of confidential communications made for the dominant purpose of giving or receiving legal advice. The forwarding of invoices by receivers to companies in receivership for payment does not constitute waiver of privilege.