The Court held that Phoslock failed to establish that forensic investigation reports by KPMG and FTI were created for the dominant purpose of obtaining legal advice, notwithstanding that the engagements were formally channelled through solicitors under retainers expressly referencing legal advice. The Court found that the investigations would have been conducted in substantially the same form irrespective of the interposition of lawyers, given the substantially overlapping scope with the pre-existing non-privileged Project Echo engagement and the multiple non-legal purposes evident from market announcements, internal correspondence, and the half-yearly report. The failure to adduce evidence of the terms of the solicitors' engagement, the nature and timing of advice sought, or any correlation between the investigative scope and the advice requirements was fatal to the privilege claim.
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