In December 2023 we reported on the Federal Court’s decision in Robertson v Singtel Optus Pty Ltd [2023] FCA 1392. The Federal Court found that an independent ‘root cause’ report (the Report), which Optus commissioned following a significant data breach was not subject to legal professional privilege notwithstanding that Optus would likely face legal proceedings in connection with the breach (article available here).

Optus appealed the decision on various grounds, including that the primary judge erred in failing to find that the Report had been created for the dominant purpose of enabling Optus to obtain legal advice and/or for the provision of legal services for actual or anticipated legal proceedings.

Ultimately, the Full Court of the Federal Court dismissed Optus’ appeal and upheld the primary judge’s decision that the Report was not protected by legal professional privilege as it was not drafted for the dominant purpose of legal advice.

In reaching this decision, the Full Federal Court found that the primary judge was correct in finding:

• the Report was commissioned for multiple purposes;
• Optus failed to produce specific evidence that adequately showed that the legal purpose for commissioning the Report was in fact the dominant purpose; and
• Optus’ failure to adduce such evidence from its CEO or board members fortified the conclusion that Optus had not established that the legal purpose for the investigation and resulting Report was the dominant purpose.

The full decision can be found here.