Key published decisions applying Schedule 3, section 7 RTI Act
Considered the elements of litigation privilege and issues of waiver. Notes that schedule 3, section 7 of the RTI Act reflects the requirements for establishing LPP at common law.
Considered whether a Call Note between Council’s solicitor and the applicant’s representatives attracted the ‘advice’ limb of LPP. The Information Commissioner found that, while the solicitor may have taken the Call Note into account while providing advice at a later stage, the Call Note did not comprise a confidential communication between the solicitor and her client and that the dominant purpose of the Call Note was to create a contemporaneous record of the telephone conversation between the solicitor and the applicant’s union representative. The Information Commissioner concluded that the call note did not attract LPP.
Considered whether an expert report prepared by third party engineers attracted the ‘litigation’ limb of LPP. The Information Commissioner found that the dominant purpose of the report was to prepare the Board of Professional Engineers of Queensland for litigation. Further, the Information Commissioner found that the ‘litigation’ limb of LPP could extend to proceedings in a tribunal, namely QCAT, in cases where the proceedings are analogous to litigation.
Professional relationship and independence
Considered whether Council in-house lawyers were appropriately qualified and sufficiently independent to provide advice which attracts LPP.
Considered equivalent provision in the FOI Act and whether the Brisbane City Council City Solicitor and the professional staff of the City Solicitor’s office had the requisite degree of independence to give legal advice to the Council which attracted LPP.
Smith and Administrative Services Department (1993) 1 QAR 22
(at paragraphs 88-90)
Considered equivalent provision in the FOI Act. The Information Commissioner found that legal professional privilege could also apply to communications between legal officers employed by Crown Law and Crown Law’s clients, provided those communications satisfied the tests for legal professional privilege.
Adopted the reasoning in Smith and Administrative Services Department.
Loss of LPP
Considered waiver of LPP and the improper purpose exception.
Considered whether privilege had been waived by the agency communicating internally, and externally for a specific and limited purpose.
Considered confidentiality and waiver of privilege.
Last updated: October 16, 2013