Federal Court proceedings concerning whether certain documents were the subject of legal professional privilege. This proceeding is notable on account of the volume of documents over which legal professional privilege was sought.
Flora Green Pty Ltd, JBS Holdco Australia Pty Ltd and JBS Australia Pty Ltd are Australian companies wholly owned by JBS SA, a Brazilian multinational company listed on the Brazil Stock Exchange. Flora Green is the head company of a multiple entry consolidated (MEC) group, and JBS Holdco Australia and JBS Australia are subsidiary members of the group.
The Commissioner of Taxation (the Commissioner) commenced an audit of Flora Green and issued notices to produce documents under s 353-10 of Sch 1 of the Taxation Administration Act 1953 (Cth). The notices were issued to: (a) Glenn Russell, a partner of PricewaterhouseCoopers Australia (PwC), which is a multi-disciplinary partnership that provided services to the JBS Australia Group; and (b) Flora Green.
PwC claimed legal professional privilege (on behalf of Flora Green or another member of the JBS Global Group) and by Flora Green or another member of the JBS Global Group over approximately 44,000 documents. The Commissioner disputed the claims of privilege over approximately 15,500 documents.
Several case management hearings took place at which there was discussion as to how best to manage the proceeding given the large number of documents in dispute. Ultimately, the Court decided to set down for hearing a separate question relating to 100 sample documents: 50 to be selected by the Commissioner and 50 to be selected by the respondents. In circumstances where the Commissioner and his lawyers did not have access to the sample documents, the Court appointed three barristers as amici curiae to assist the Court.
As a general proposition, the court accepted that a lawyer-client relationship existed between PwC and the JBS parties and that while many of the sample documents were subject to legal professional privilege the majority were not.
Mark Robertson QC (with B L Jones and G Antipas) appeared for the Second, Third and Fourth Respondents, instructed by JBS Australia.
The judgment is published here.
