The purpose for which the confidential communications were brought into existence is vital to determining whether LPP attaches to the communication.1
The dominant purpose test was established by the High Court in Esso2 and provides that for LPP to attach, the confidential communications between a lawyer and client must have been made for the dominant purpose of:3
The dominant purpose test replaces the sole purpose test established in Grant v Downs.5
The purpose for which the communication was brought into existence is a question of fact and is not necessarily ascertained by reference solely to the intention of the author or of the individual upon whose instructions the communication was created.6
Where a report is commissioned by a solicitor, the purpose of the solicitor in commissioning the report may be relevant in establishing the dominant purpose, depending on the circumstances.7 In Mitsubishi,8 solicitors commissioned a report as a ‘prerequisite for providing legal advice’ and the solicitors’ purpose was found to be the dominant purpose of bringing the report into existence.9 The fact that the solicitors commissioned the report (rather than the clients) ruled out other purposes for which the report could have been commissioned.10 However in Singapore Airlines,11 the solicitor’s purpose in commissioning a report for litigation was not determinative because the solicitor was retained as an in-house counsel and was aware that the report would serve purposes other than litigation.12
The dominant purpose is not the primary or substantial purpose,13 but rather the ‘ruling, prevailing or most influential purpose’.14 Where there are two or more purposes of equal importance there may be no dominant purpose, in which case LPP will not be available.15
The time at which the dominant purpose is to be determined is the time the communications or documents recording communications were brought into existence.16 The actual use of the communications or documents is irrelevant.17
Legal advice has been broadly interpreted to extend to all ‘professional advice as to what a party should prudently or sensibly do in the relevant context’.18 Legal advice does not, however, extend to advice ‘that is purely commercial or of a public relations character’.19
Specific examples of communications made for the dominant purpose of giving or seeking legal advice include:
The content of the legal advice need not be apparent on the face of the communications; LPP may attach to communications in which the nature and extent of legal advice can be inferred, including:21
With regard to draft documents, Dawson J noted in Maurice22 that a draft pleading may attract LPP before filing, as drafts potentially disclose the precise character of confidential communications by showing alterations made to the document.23
For the purposes of litigation privilege, ‘proceedings’ include both judicial and quasi-judicial proceedings.24
Litigation privilege can extend to actual or anticipated litigation in tribunals provided the proceedings are ‘sufficiently analogous to court proceedings to compel a conclusion that the proceedings attract legal professional privilege'.25
Litigation privilege may even extend to proceedings that affect an individual’s legal rights, irrespective of whether the proceeding is analogous to a court proceeding.26 For example, in SZHWY27 litigation privilege was found to extend to an inquisitorial hearing conducted by an administrative decision maker concerning the decision to grant a protection visa. Notably, Royal Commission hearings are not considered ‘proceedings’ for the purpose of LPP because the Commission does not have the power to make final determinations on a person’s legal rights or obligations.28
Litigation privilege will only attach to confidential communications between a lawyer and client for the dominant purpose of preparing for or use in legal proceedings, where the proceedings have commenced or are reasonably anticipated.
Litigation must be reasonably anticipated at the time the relevant communications are made for LPP to attach. Whether litigation is reasonably anticipated is to be determined objectively. Proceedings will be reasonably anticipated where there is a ‘real prospect of litigation, as distinct from a mere possibility, but it does not have to be more likely than not’.29
4 Allen v State of Queensland  QSC 442 at paragraph 22, referring to Cross on Evidence Australian Edition [25, 225] and Mitsubishi Electric Pty Ltd v Victorian WorkCover Authority  4 VR 332 at 366 and the cases cited there.
14 Federal Commission of Taxation v Spotless Services Ltd (1996) 186 CLR 404 at page 416.
26 The early case of Waterford v Commonwealth of Australia (1987) 71 ALR 673 assumed that litigation privilege applies to proceedings in the Administrative Appeals Tribunal (AAT): ‘The concept of litigation for the purpose of the doctrine of legal professional privilege is, I think, wide enough to embrace the proceedings before the Tribunal which were conducted upon adversary lines and contemplated legal representation.’ The decisions prior to Farnaby of Young J in AWB Ltd v Cole (No 5) (2006) 155 FCR 30 and Bergin J in Ingot Capital Investments  NSWSC 530 referred to the adversarial/inquisitorial distinction to determine that the AAT is not sufficiently adversarial for LPP to apply.
29 Mitsubishi Electric Australia Pty Ltd v Victorian Work Cover Authority (2002) 4 VR 332 at paragraph 19. For example, the occurrence of a particularly litigious event could mean that litigation is reasonably anticipated.
Last updated: March 16, 2013