Relevant decisions from other jurisdictions

The following cases consider LPP in the context of FOI legislation. For decisions considering LPP at common law, see ‘LPP at Common Law’ Annotation.

Relevant Australian case law

High Court of Australia

Osland v Secretary to the Department of Justice (2008) 234 CLR 275

This decision concerns a request for documents containing legal advice recommending the denial of the appellant’s petition to the Governor of Victoria, for the grant of a pardon. The Court found limited disclosure of the fact and nature of legal advice in a press release did not of itself waive LPP in the underlying advice.

Commissioner Australian Federal Police v Propend Finance Pty Ltd [1997] HCA 3; (1997) 188 CLR 501

This decision determined that copies of non-privileged original documents may attract LPP where the copies were made for the dominant purpose of obtaining legal advice or for use in legal proceedings.

Waterford v Commonwealth of Australia (1987) 163 CLR 54

This decision concerns communications including letters, draft letters, minutes, memoranda and notes between government decision makers and their salaried government legal advisors. Relevantly, the decision deals with the independence of government legal officers and their relationship with government departments.

Federal Court of Australia

Federal Commissioner of Taxation v Devereaux Holdings Pty Ltd [2007] FCA 821

In this decision, documents that contain, summarise or refer to legal advice were considered exempt under the Freedom of Information Act 1982 (Cth) on the basis of LPP.

State Courts

McGuirk v University of New South Wales (2009) 75 NSWLR 321

The applicant sought access to legal advice provided to the University of New South Wales (UNSW). UNSW refused access to the information on the basis that it was subject to LPP. On appeal to the Administrative Decisions Tribunal, the tribunal found that LPP had been waived because the document had been provided to a third party with the approval of the Chancellor.

Secretary, Department of Health v Proudfoot (1993) 114 FLR 384

This decision concerns a copy of a letter prepared by an ACT Government Solicitor, containing legal advice about how the ACT Department of Health should reply to a letter from the respondent.

Administrative Appeals Tribunal

Re Proudfoot and Human Rights & Equal Opportunities Commission (1992) 16 AAR 411

 The decision concerns legal advice provided by government employed legal officers, contained in memoranda and file notes, relating to the exercise and performance of statutory powers and duties.

City Parking Proprietary Ltd and City of Melbourne (1996) 10 VAR 170

This decision found that a summary of legal advice prepared by the client, draft letters, a recorded conversation and minutes of a meeting between solicitor and client where legal advice was communicated, were exempt on the basis of LPP. A number of documents were not considered to be subject to LPP, including:

  • handwritten note requesting advice on a non-litigious issue
  • letter asking whether minutes were accurately recorded
  • document recording the fact that consultations had occurred
  • letter indicating that the client should return a call to the solicitor
  • document recording the receipt of a letter
  • document indicating that notices were to be issued.

Mullen and Department of Broadband, Communications and the Digital Economy [2010] AATA 523

The applicant sought access to all documents ‘created as a result of the independent claims assessment scheme agreed to during investigations on the full privatisation of Telstra’. The Tribunal confirmed the Department of

Broadband, Communications and the Digital Economy’s decision that certain documents were exempt on the basis of LPP under section 42(1) of the Freedom of Information Act 1982 (Cth).

Last updated: March 5, 2012