Is legal professional privilege waived by disclosure in company reports?

In GMCG, LLC v Agenix Ltd [2007] QSC 309 the Supreme Court of Queensland refused to order disclosure of documents over which legal professional privilege had been claimed even though the documents had been referred to in the company's annual report lodged with the ASX.

The companies were involved in a dispute over fees. The defendant disclosed the dispute as a contingent liability and stated "The company has received legal advice that it has no liability whatsoever." The company subsequently changed that statement to read “The company has received legal advice. Based on that advice, the company believes that it has no liability whatsoever.” The plaintiff claimed privilege over the legal advice had been waived and sought disclosure not only of the advice but also of the documents “that reveal the process of reasoning and the factual assumptions and instructions lying behind that legal advice”.

The judge accepted the defendant's finance officer's evidence that "he referred to the legal advice to make it clear that the classification of the claim as a contingent liability was based on the company’s belief, following legal advice, that it had no liability. I also accept that the advice was mentioned in order to explain the reason why the defendant believed that its possible further exposure in these proceedings was properly classified as a contingent liability."

Justice Douglas concluded:

In this case...it was important that the defendant be able to disclose why it had adopted a particular accounting treatment of its potential exposure to the plaintiff. It promoted the integrity of the accounts and market transparency by the provision of appropriate information to shareholders, potential shareholders and creditors in circumstances where the disclosure has given it no advantage in the litigation. I do not conclude from those references to the advice the defendant received that it thereby waived the privilege in the advice for the purpose of these proceedings.