Background
In commercial proceedings, White Oak sought unredacted production of a December 2020 report prepared by Mori Hamada & Matsumoto, a Japanese law firm, for Tokio Marine Holdings. The report concerned an investigation into concerns that BCC Trade Credit’s former head of trade credit had issued policies beyond his authority, and addressed Tokio Marine’s Japanese legal and regulatory obligations.
BCC Trade Credit, Tokio Marine & Nichido Fire Insurance and Tokio Marine Management claimed legal professional privilege. White Oak argued that Japanese law governed the issue and that, because Japan has no common-law doctrine of legal professional privilege, the report had to be produced. It also contended that the report was principally investigative and that privilege had been waived through disclosures to Japan’s Financial Services Agency.
The Court’s Holding
Justice Thawley dismissed White Oak’s interlocutory application with costs. Rule 20.02 of the Federal Court Rules 2011 (Cth), which exempts privileged documents from discovery production, refers to privilege as recognised by Australian law. No choice-of-law issue therefore arose; in any event, if one did arise, the governing law would be the law of the forum, Australia.
The Court held that Australian privilege can protect foreign legal advice even where the jurisdiction in which it was given has no equivalent privilege doctrine. Japanese law protected the confidentiality of lawyer-client communications and would be likely to resist compulsory production of the report in Japanese civil proceedings. Objectively, the report’s dominant purpose was legal advice on Japanese law and regulatory obligations; its factual inquiries were part of giving that advice. Providing the regulator with a confidential update based on, but not including, the report did not waive privilege, particularly given officials’ statutory confidentiality duties.
Key Takeaways
- Australian discovery privilege is determined under Australian law, including for advice from foreign lawyers on foreign law.
- A foreign jurisdiction’s lack of a common-law privilege doctrine does not itself defeat a privilege claim in Australian proceedings.
- Investigative work undertaken to enable legal advice may remain privileged where legal advice is the dominant purpose.
- A confined confidential regulatory update does not necessarily waive privilege over the underlying legal advice.
Why It Matters
The decision confirms that Australian courts may protect cross-border legal advice from compulsory disclosure where the advice was confidential and obtained for a legal purpose. It is particularly significant for multinational groups responding to regulatory incidents across several jurisdictions.
It also illustrates that disclosure to a regulator must be assessed for inconsistency with maintaining confidentiality, rather than treated automatically as a waiver of privilege.