Australian Securities Exchange announcement led to disclosure
The Australian Federal Court found that ALS Limited had waived legal professional privilege over at least some information in a 1 April 2020 report prepared by McGrathNicol, following disclosure of the information in an Australian Securities Exchange announcement.
In Korea Midland Power Co Ltd v ACIRL Quality Testing Services Pty Ltd (No 3) [2026] FCA 1019, the waived subject matter was information identifying that:
Regarding the extent of the waiver of legal professional privilege in the McGrathNicol report, ALS gave:
The Federal Court of Australia ordered ALS Limited to produce the McGrathNichol report for the applicant’s inspection, only redacting the portions identified in the court’s schedule to its orders.
Apart from an exception, the court concluded that the entire report addressed the waived subject matter, such that disclosing the report would be necessary to avoid misleading the applicant and to help the applicant properly understand the extent of disclosure.
To reach this conclusion, the court took into account the McGrathNichol report’s structure, its contents, and the extent to which it addressed the waived subject matter.
The court considered various elements of the waived subject matter, including the disclosed conclusion about the percentage of amended certificates, as well as the disclosed conclusions that:
Regarding the exception, which covered the McGrathNicol report’s paragraphs [1.2.31] to [1.2.35] and the whole part 8, the court explained that these portions’ subject matter sufficiently differed from the waived subject matter, such that there had been no waiver.
“The conclusions that I have expressed are necessarily cryptic and circumspect,” wrote Justice Scott Goodman for the court. “They have been expressed in this way in light of the extensive redactions made by ALS and because I am cognisant that ALS may wish to seek leave to appeal and of the need to preserve the subject matter of any such appeal.”
The Federal Court ordered ALS Limited and ACIRL to pay the applicant’s costs of and incidental to its privilege claim over the McGrathNichol report, as agreed or assessed.
Pursuant to a prior court order made by consent, the court stayed its orders to preserve ALS’s appeal rights.
Here are some recent decisions by the Federal Court of Australia.
In a competition law proceeding, the Federal Court issued a 22 July 2026 decision denying an interlocutory application aimed at allowing a director to represent an insurance company, rather than a lawyer, as required by r 4.01(2) of the Federal Court Rules 2011 (Cth).
The Federal Court made a 22 July 2026 decision awarding the applicant lump sum costs of $1,000 upon finding that the respondent failed to appear at a hearing because its counsel could not maintain a reliable, continuous video or audio link throughout the hearing.
The Federal Court issued a 23 December 2025 order for the plaintiff to pay two parties’ costs in connection with interlocutory processes that requested the production of documents over which the parties asserted legal professional privilege.
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