ARNOLD BLOCH LEIBLER acted for AWB Limited in the Federal Court case AWB Limited v Honourable Terence Rhoderic Hudson Cole handed down last week.
In the case, AWB asked for a declaration that documents sought by Commissioner Terrance Cole, heading the Oil-for-Food inquiry, were protected from disclosure by legal professional privilege.
Initially 1,450 documents were submitted as subject to privilege, but these were reduced to 900 disputed documents after agreements were reached between the parties on the others.
Justice Neil Young concluded that privilege had been waived in 316 of the documents and in part of the contents of a further 19 documents.
He said he was satisfied that AWB had “made a conscious and voluntary decision to deploy the gist or substance” of the legal advice in these documents in its dealings with the Australian Government, the UN Independent Inquiry Committee and the Commission because it considered that it was in its commercial interests to do so.
“These actions are inconsistent with the maintenance of confidentiality in the legal advice,” Justice Young said in a summary of the judgement.
A further 25 documents tendered by AWB had not established they were “confidential communications brought into existence for the dominant purpose of obtaining or giving legal advice”.
Another 10 documents had lost legal professional privilege because they were “brought into existence in furtherance of an improper and dishonest purpose”.
Justice Young said the improper and dishonest purpose was to inflate the prices of contracts A1670 and A1680 “so as to extract payments out of the United Nations’ escrow account that would then be utilised, in part, to satisfy a compensation claim by the [Grain Board of Iraq]”.
AWB and the Commonwealth can now make submissions on the form of any declarations that should be made to give effect to Justice Young’s reasons for judgment.
The first respondent, Commissioner Cole, did not appear. The Australian Government Solicitor acted for the second respondent, the Commonwealth.