In the course of an audit a formal request to produce certain documents was issued to the multinational meat production group JBS by the Australian tax authorities.
On behalf of its client, PwC claimed that the documents requested were subject to legal professional privilege (LPP), and therefore did not need to be produced. Thus, PwC declined to provide approximately 44,000 documents.
The tax authorities disputed the LPP claims over approximately 15,500 documents. However, for the purposes of the trial, only 116 sample documents were selected by the partis and considered by the court.
Judgement of the Federal Court
The court found that legal professional privilege claims needed to be considered on a document-by-document basis.
From the sample of documents selected by the parties, the court concluded that 49 were privileged; 6 were partly privileged; and 61 were not privileged.
“It is therefore necessary to consider, on a document-by-document basis, whether each Sample Document is subject to legal professional privilege. This requires consideration of whether the Sample Documents are, or record, communications made for the dominant purpose of giving or receiving legal advice. This question is to be determined by reference to the content of the document, its context, and the relevant evidence relating to the document. A critical part of the context in the present case is that the services were provided by a multi-disciplinary partnership and that the team carrying out the work comprised both lawyers and non-lawyers.
Another contextual matter is the involvement of overseas PricewaterhouseCoopers (PwC) firms in many of the same projects (under separate engagements). At least in the case of PwC Brazil and PwC USA, the overseas firms were not able to provide legal advice and made clear that they were not doing so.
For the reasons that follow, I have concluded that many of the Sample Documents are privileged, but that many are not.”
Austr vs PWC 2022FCA0278