A VICTORIAN court has granted AWB full access to highly sensitive interview transcripts and witness statements compiled by the corporate regulator during its ongoing investigation into how the wheat exporter paid $300 million of kickbacks to Iraq.
Yesterday's ruling by Justice Ross Robson in the Victorian Supreme Court is a clear win for AWB on the issue of access, which the company has sought now in three court cases. AWB has argued that it should be allowed to examine the transcripts and statements, which it has never seen, before they are distributed to others so that it may determine whether it has any claims for legal professional privilege.
In the Victorian case, the Australian Securities and Investments Commission was due to hand the documents to lawyers representing AWB's former chief executive Andrew Lindberg, who is defending a civil penalty proceeding over his involvement in the kickbacks.
AWB is not a party in the Lindberg case. But it wanted Justice Robson to give it first access to the documents or at least to let the company examine them before Mr Lindberg's trial began.
ASIC argued that AWB should not be given the documents because the company itself remained under investigation. Instead, ASIC suggested AWB's lawyers could intervene any time during Mr Lindberg's trial if the company perceived a potential breach of privilege. This prompted Justice Robson to ask if ASIC perhaps expected the court to employ a five-second dump button similar to those used by radio stations.
Since late 2006, ASIC has interviewed several former AWB managers who were involved in the kickbacks scandal, including its former in-house counsel, Jim Cooper.
ASIC has also used its coercive powers to interview some of AWB's former external lawyers from the firms Minter Ellison and Arnold Bloch Leibler.
As a result of the court ruling, and barring any appeal by ASIC, AWB will receive the 41 transcripts and numerous statements on Monday.
Justice Robson said legal professional privilege was a substantive common law right. It included the right to decline to produce privileged documents and the right to assert legal privilege.
But he said a party must be given a "practical and realistic opportunity" to assert the privilege, and "to date, AWB has not had a practical and realistic opportunity to assert legal professional privilege".
"Accordingly, its legal and common law rights have not been observed," Justice Robson said.
AWB first raised its concerns about privilege before Justice Michelle Gordon in the Federal Court a year ago, after it became aware that ASIC was on the verge of handing the documents to the federal police. It lost that case and appealed to the full court, which has not yet published its decision.
In a separate Federal Court case in Sydney, where AWB is defending a class action initiated by aggrieved shareholders, Justice Lindsay Foster recently made a preliminary ruling that AWB could examine the ASIC documents before the class action litigants saw them.
But before Justice Foster finalised his orders, some former AWB employees, who are still under investigation, intervened. The outcome in Justice Foster's court is still not known.
ASIC was required to give the transcripts and witness statements to Mr Lindberg's lawyers yesterday.
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