Key common law decisions
Dominant purpose test
Esso Australia Resources Ltd v Federal Commissioner of Taxation (1999) 201 CLR 49
Whether privilege attaches to confidential communications between a client and solicitor for the dominant purpose of giving or receiving legal advice or for the use in existing or reasonably anticipated proceedings
It is now settled that legal professional privilege is a rule of substantive law which may be availed of by a person to resist the giving of information or the production of documents which would reveal communications between a client and his or her lawyer made for the dominant purpose of giving or obtaining legal advice or the provision of legal services, including representation in legal proceedings
Singapore Airlines Ltd v Sydney Airports Corporation Ltd [2004] NSWSC 380
Whether an expert report prepared by an independent company commissioned by a solicitor acting on behalf of a client was created for the dominant purpose of providing advice in relation to anticipated litigation
AWB Ltd v Cole (No 5) (2006) 155 FCR 30
The dominant purpose is one that predominates over other purposes; it is the prevailing or paramount purpose
Waiver
Attorney General for the Northern Territory v Maurice and Others (1986) 161 CLR 475
Implied waiver – whether a document that was not admitted into evidence but was distributed to the parties retained privilege – whether a document that was distributed to comply with a procedural requirement retained privilege – whether fairness a relevant consideration when deciding whether privilege has been waived
Mann v Carnell (1999) 201 CLR 1
Implied waiver – whether there was an imputed waiver where legal advice was disclosed to a third party (written legal advice given confidentially from Executive to a member of the Legislative Assembly)
Inconsistency test – whether waiver can be imputed where the conduct is inconsistent with the maintenance of the confidentiality which the privilege is intended to protect
Australian Rugby Union Ltd v Hospitality Group Pty Ltd [1999] FCA 1061
Express waiver – whether disclosure of a privileged communication for a limited purpose in a specific context, would amount to waiver of privilege
GEC Marconi Systems Pty Ltd v BHP Information Technology Pty Ltd [2000] FCA 593
Whether the circulation of privileged communications among officers of a corporation constituted waiver of privilege
AWB Ltd v Cole (No 5) (2006) 155 FCR 30
Whether privilege attached to communications where the substance of legal advice was disclosed during internal investigations – a mere reference to the existence of legal advice in a disclosed document will not be regarded as waiver of its contents
Spotless Group Ltd v Premier Building and Consulting Pty Ltd [2006] VSCA 201
Whether privilege had been waived where copies of privileged documents had been provided to third parties
Federal Commissioner of Taxation v Devereaux Holdings Pty Ltd [2007] FCA 821
Whether documents that contain, summarise or refer to legal advice attract privilege – whether documents that contain, summarise or refer to legal advice waive privilege
Osland v Secretary to the Department of Justice [2008] HCA 37
Whether a press release disclosing the “existence and effect” of legal advice amounted to a waiver of privilege
Australian Competition and Consumer Commission v Cadbury Schweppes Pty Ltd [2009] FCAFC 32
Whether filing and serving finalised proofs of evidence (court documents) amounted to waiver of privilege
Professional relationship and independence
Waterford v Commonwealth of Australia (1987) 163 CLR 54
Communications between government and salaried legal advisers – whether privilege attached to documents containing legal advice prepared for the Government by its salaried legal advisors, for the purpose of tribunal proceedings – whether a professional relationship exists and the advice is independent in character
Re Proudfoot and Human Rights & Equal Opportunities Commission (1992) 16 AAR 411
Establishment of a lawyer and client relationship – whether an in-house lawyer had the requisite degree of independence – whether a lawyer/client relationship existed in circumstances where instructions were unclear and the purported client made the decision before receiving the legal advice
Independence of lawyer – whether an in-house lawyer lacked the requisite measure of independence due to competing loyalties
Vance v McCormack and Another (2004) 184 FLR 62
Practising certificate – whether privilege applies to advice given when the author does not have a practising certificate or other statutory right to practise law
McKinnon and Secretary, Department of Foreign Affairs and Trade [2004] AATA 1365 (21 December 2004)
Practising certificate – whether privilege applies to advice given when the author does not have a practising certificate or other statutory right to practise law
Osland v Secretary to the Department of Justice (2008) 234 CLR 275
Government lawyers – whether advice provided by government lawyers on issues of law reform and public policy attracted privilege
Improper purpose (crime/fraud exception)
R v Bell; Ex parte Lees (1980) 146 CLR 141
Whether an act, in the furtherance of an illegal object would result in the loss of privilege
Attorney-General for the Northern Territory v Kearney (1985) 158 CLR 500
Whether privilege attaches to communications made to further an abuse of statutory power that would prevent others from exercising their rights under the law
Whether privilege attaches to communications engaged in for the purposes of furthering a fraud or a crime
Clements, Dunne & Bell Pty Ltd v Commissioner of Australian Federal Police [2001] FCA 1858
Whether a lawyer needs to be a party to the client’s crime or fraudulent conduct – whether the crime or fraud needs to be that of the client or the lawyer or whether it may be that of a third party – what degree of proof is required to substantiate the crime or fraud exception
AWB Ltd v Cole (No 5) (2006) 155 FCR 30
Improper purpose test – the principle encompasses a wide species of fraud, criminal activity or actions taken for illegal or improper purposes
Statutory exceptions
Corporate Affairs Commission of NSW v Yuill (1991) 172 CLR 319
Whether a statutory power to inspect books will allow an inspector to inspect documents subject to privilege
Whether privilege is abrogated by statute
Miscellaneous
Duplicates – whether privilege attaches to documents which were not written for the dominant purpose of obtaining legal advice but which were copied for that purpose
Communication – whether the document is a communication
Confidential communications – whether surveillance videos brought into existence for the dominant purpose of a communication between a client and a lawyers for anticipated use in legal proceedings was a confidential communication
Re Farnaby and Military Rehabilitation and Compensation Commission [2007] AATA 1792
Extent of litigation privilege – whether litigation privilege extends to proceedings in the Administrative Appeals Tribunal (AAT) – whether the statutory characteristics of the AAT and its power to affect the legal rights of persons indicate that its proceedings are sufficiently analogous to court proceedings for the privilege to arise
Australian Competition and Consumer Commission v Cadbury Schweppes Pty Ltd [2009] FCAFC 32
Court documents – whether the finalised, filed and served Proofs of Evidence (similar to an affidavit) in the course of existing litigation attract privilege
Last updated: March 1, 2012
