Legal professional privilege

The Right to Information Act 20091 (Qld) (RTI Act) gives people the right to access documents in the possession or control of Queensland government agencies2. This right of access is subject to some limitations. These limitations include information which is exempt from release under schedule 3 of the RTI Act.

Schedule 3, section 7 of the RTI Act provides that information which would be privileged from production in a legal proceeding on the ground of legal professional privilege (LPP) is exempt from release.

Additional Resources

For a detailed breakdown of relevant caselaw and principles, decision makers should refer to the Annotated Legislation. Legal Professional Privilege – a guide for applicants can be useful to include with decision notices to help applicants understand why access has been refused. OIC also has a three-part video series available on YouTube: Legal Professional Privilege3

How to apply the LPP exempt information provision

Broadly, for information to be subject to LPP it must be a confidential communication made in the course of a lawyer/client relationship for the dominant purpose of:

  • seeking or providing legal advice (advice privilege); or
  • for the dominant purpose of use in existing or reasonably anticipated legal proceedings (litigation privilege).

The communication can be with a third party if it was made at the client’s request for the dominant purpose of assisting the lawyer to provide legal advice or for use in legal proceedings.

If these elements are satisfied, the agency must still consider whether:

  • the privilege has been waived; or
  • the circumstances give rise to the improper purpose exception (explained below).

Whether information is subject to LPP will depend upon the facts of each case. A decision maker must objectively consider the information to which access is sought and form a view guided by the application of the common law principles discussed in this guideline. Just because a certain document is subject to LPP in one case does not necessarily mean the same type of document will attract LPP in a different set of circumstances.

Elements of LPP - confidential communications

While LPP technically applies to the communication and not the document4, the document which records the substance of privileged communications between a lawyer and client is protected by LPP unless it has been waived. The key is whether disclosure of the document would also disclose a privileged communication.5

Not all communications between a lawyer and a client are privileged. To attract LPP, the communication must be confidential.6

Generally, if communications are made in a third party's presence the communication will not have the confidentiality necessary to attract LPP7. This may be different if the third party is an agent, employee, or contractor of the lawyer or client.

Copies of non-privileged documents

A document will not be subject to LPP simply because it was copied to a lawyer for their information.8 For example, if a client requests policy advice, copying the request to the lawyer will not make the policy advice or the request subject to LPP.

However, copies of non-privileged documents can attract LPP if those copies satisfy the dominant purpose test.9 For example, a non-privileged document copied and sent to a lawyer for the purpose of getting legal advice on it, or for the purpose of inclusion in a brief to counsel10, will be subject to LPP.11 The test is whether the communication (in this case, the copy) was created for a privileged purpose.

Copies of privileged documents

A privileged document will remain privileged if copied12, unless the privilege is expressly or impliedly waived.13

The issue to consider is whether LPP has been waived by the act of further communication. If, for example, a copy of a privileged letter is made for use in commercial negotiations, LPP may be lost because the copy was not created for a privileged purpose14.

References to legal advice and other privileged material

LPP extends to any document which directly reveals, or which allows a reader to infer, the content or substance of a privileged communication.15

This principle is particularly relevant when determining whether LPP applies to other confidential legal work carried out by a lawyer in the course of preparing or giving legal advice or during current or anticipated litigation.

LPP can apply to documents which record confidential legal advice or legal work even where those documents are not communicated to the client. Examples include:

  • legal research memos
  • summaries of argument
  • draft pleadings and agreement; and
  • chronologies of facts.16

Advice privilege may also extend, subject to satisfying the dominant purpose test, to notes, drafts, charts, diagrams, spreadsheets and other documents provided by the client in the course of communicating information to the lawyer.17 Whether privilege attaches to these documents will depend on whether disclosure of the information would reveal the privileged communication.18

Similarly, litigation privilege can extend to material which is not communicated to the client but which is obtained by the lawyer for the dominant purpose of use in, or in relation to, existing or reasonably anticipated litigation.19 For example, draft pleadings and draft affidavits may attract LPP even though they are not communicated to the client.

Elements of LPP - dominant purpose test

Confidential communications are only privileged if they are created for the dominant purpose of:

  • giving or obtaining legal advice (advice privilege); or
  • preparing for, or for use in, existing or reasonably anticipated legal proceedings (litigation privilege).20

The dominant purpose is not the primary or substantial purpose21, but rather ‘the ruling, prevailing or most influential purpose’22.

While there may be several purposes for a communication's creation, only one of those purposes will be dominant. If there are two or more purposes of equal importance, no one purpose can be said to be the dominant purpose.

The purpose for which the communication is brought into existence is a question of fact which is generally determined by considering:

  • evidence of the intended use
  • the nature of the communication; and
  • submissions from the parties.

The intent of the document's author—or the person on whose instructions the document was created—is relevant when determining the dominant purpose but is not determinative.23

Generally, the dominant purpose is determined at the time the communication, or document recording the communication, was created. If the client had paid a legal retainer to the lawyer at the time the documents were brought into existence, it is reasonable to conclude the dominant purpose of their creation was the provision of legal advice.24

Advice privilege

Advice privilege attaches to confidential communications between a lawyer and client (or a client/lawyer and a third party) made for the dominant purpose of obtaining or providing legal advice.25

Advice privilege will also apply if a person directs or authorises a third party (as their agent) to make a communication:

  • on that person’s behalf
  • to a lawyer
  • for the dominant purpose of obtaining legal advice.26

Where the dominant purpose test is met LPP can apply to communications with a third party who is not an agent of the client or lawyer27, for example, with a third party specialist retained to ensure the client obtains accurate advice about their particular circumstances.

Legal advice can go beyond strict formal advice about the law. It can extend to advice as to what would be prudent and sensible to do in the relevant legal framework.28 While privilege does not apply to advice prepared for the dominant purpose of financial, personal, commercial or public relations matters29 or to policy or administrative advice,30 the advice must be characterised as a whole. If it is made up of integrated legal and commercial advice that cannot be disentangled, it can properly be characterised as legal advice.31

Pluta and Queensland Rail32 (Pluta)

In Pluta, the Queensland Rail Board commissioned a report from their external lawyers. The Right to Information Commissioner found that it was privileged, noting that the Board had expressly resolved to seek legal advice and that the production of the report in response to that resolution involved the:

"…application of professional legal skills by way of gathering and marshalling documentary and oral evidence, taking statements, analysing relevant issues and drawing a comprehensible report expressing various conclusions based upon Minters’ analysis of the underlying evidence – work discharged by independent lawyers in a professional legal capacity.  All of this activity was undertaken within the relevant legal context of the governance and probity obligations imposed on QR by various statutory and policy instruments, and the result of that work – the information in issue – can be fairly characterised as ‘advice as to what should be prudently and sensibly done in the relevant legal framework’."33

Litigation Privilege

Litigation privilege attaches to confidential communications between a lawyer and client made for the dominant purpose of use in, or in relation to, litigation. The litigation must have begun or have been reasonably anticipated at the time the communication was made.

Litigation 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 not34. Judgement about whether litigation is reasonably anticipated requires an objective view of the circumstances.35

Example

When considering documents on a legal file, litigation privilege may apply to the following types of communications:

  • advice regarding prospects of success in litigation
  • advice regarding a particular stage in the litigation such as an interlocutory application/injunction
  • correspondence with witnesses for the purpose of obtaining evidence to be used in litigation
  • information that may lead to evidence being obtained to use in  the litigation.

Litigation privilege also covers third party communications where they are:

  • connected with the lawyer/client relationship; and
  • made for the dominant purpose of use in, or in relation to, existing or reasonably anticipated litigation.36

Example

Communications between a lawyer and a potential witness where the dominant purpose of the communication was for the lawyer to obtain evidence for use in a prosecution.37

Elements of LPP - professional relationship and independence

LPP only attaches to confidential communications between a lawyer and a client where:

  • the advice is provided by the lawyer in his or her capacity as a professional lawyer; and
  • the lawyer is appropriately qualified and independent.38

Whether a lawyer is appropriately qualified may be established by proof of the lawyer’s admission to practice as a barrister or solicitor.39 A lawyer employed by a government agency or an 'in-house' lawyer—such as a salaried officer employed as a lawyer for the agency40—may claim privilege on behalf of his or her employer as the client.41

Communications between employee lawyers of an agency and their employers as the client (including communications through other employees of the same employer) will be privileged if the relationship is one which establishes that their advice has the necessary independent character despite their employment.

If an in-house lawyer’s advice is affected by their personal loyalties, duties, or interests, they will not have the necessary degree of independence.42 Other factors which may impact the independence of a lawyer include:

  • the role of the legal area within an agency, including whether the legal area provides independent advice and whether legal views depend on policy or administrative objectives43; and
  • whether the lawyer holds a practicing certificate44 (note, however, that a salaried government legal officer engaged in legal work is not required to hold a practicing certificate under the Legal Profession Act 2007 (Qld))45.

Where privilege has been waived or does not apply

Even where the tests for LPP are satisfied, documents may not be privileged, either because privilege has been waived (expressly or impliedly) or the improper purpose exception applies.

Waiver of privilege

Once privilege is waived, documents are not exempt under schedule 3, section 7 of the RTI Act.46

Privilege can be waived by:

  • intentionally disclosing a privileged communication (express waiver); or
  • engaging in conduct inconsistent with maintaining the confidentiality LPP is intended to protect (implied waiver).

Waiver of legal professional privilege, particularly implied waiver, is a highly contested area of law. The question of implied waiver turns on the facts of each case, including the objective purpose of the relevant disclosure.47

Express waiver

In most cases, disclosing a privileged document to a third party will waive the privilege that once attached to the document.48 This most commonly occurs when otherwise privileged documents filed and served on an opposing party in litigation.

Disclosure for a limited and specific purpose

Where the privileged communication is disclosed to a third party for a limited and specific purpose, privilege will be waived only for that purpose and only in relation to the specific third party. Privilege will still be maintained against other parties.49

Implied waiver

LPP exists to protect confidential communications between a lawyer and client. It can be impliedly waived by voluntary conduct inconsistent with maintaining that confidentiality.50 For example, discussing the contents of legal advice in a media interview or in a Facebook post.

Whether someone’s conduct is sufficient to waive privilege will depend on the specific circumstances and the conduct of the person who holds the privilege.

The improper purpose exception

Where a communication was made as part of an illegal or improper purpose, or a purpose contrary to the public interest, it cannot be privileged.51 It is irrelevant whether the lawyer knew about the improper purpose. This is called the improper purpose exception.52

The improper purpose exception requires the communication to be made for the purpose of achieving an illegal or improper purpose.53 This is not the same as a client seeking legal advice in relation to their past improper conduct, for example where a client has committed fraud and is seeking advice about the possible consequences.

Common issues

Given the complexity of LPP and the sensitive nature of the information to which it may attach, it is important for agencies to be aware of common issues that arise when dealing with information or documents that may be subject to LPP.

  • Documents are not privileged simply because they are on a legal file; the agency must consider each document on the file and determine if it is privileged.
  • In certain cases, it may not be apparent on the face of a document who the author is, to whom it was communicated or the purpose for its communication. This type of evidence is critical in establishing the elements of privilege. If this evidence cannot be ascertained from document itself, an agency must include supporting evidence in the decision or provide it on external review if requested to do so by the Information Commissioner.
  • It is not sufficient that a document simply relates to a matter on which Crown Law advice was obtained.  Each of the elements of privilege must be established in relation to the communication.
  • 1 And the Information Privacy Act 2009 (Qld) (IP Act)
  • 2 References to an agency in this guideline include a Minister.
  • 3 Section 48 of the RTI Act.(footnote text Arial 8)
  • 4 Commissioner of Australian Federal Police v Propend Finance Pty Ltd (1997) 188 CLR 501 (Propend) at page 85.
  • 5 Mann v Carnell (1999) 201 CLR 1 (Mann v Carnell).
  • 6 Esso Australia Resources Ltd v Federal Commissioner of Taxation (1999) 201 CLR 49.
  • 7 Subject to third party agents and privileged third party communications. Please refer to the Annotated Legislation ‘Application of the Legal professional privilege exemption’ for more information.
  • 8 Pratt Holdings Pty Ltd and Another v Commissioner of Taxation (2004) 136 FCR 357 (Pratt Holdings) at 366.
  • 9 Propend at pages 509, 543–544 and 554.
  • 10 This includes an agency briefing Crown Law, see C79 and Legal Aid Queensland [2020] QICmr 20 (7 April 2020)
  • 11 Propend at page 544
  • 12 Australian Proprietary Hospital Care v Duggan (Unreported, Supreme Court of Victoria, 31 March 1999) at paragraphs 48 and 53.
  • 13 Spotless Group Ltd v Premier Building and Consulting Pty Ltd [2006] VSCA 201.
  • 14 Barnes v Commissioner of Taxation [2007] FCAFC 88.
  • 15 Propend at page 569; AWB Ltd v Cole (2006) 152 FCR 382 (AWB v Cole No 1) at page 417.
  • 16 AWB v Cole (No 5) (2006) 155 FCR 30 at page 46; AWB Ltd v Cole (2006) 152 FCR 382 at 415; Daniels Corporation International Pty Ltd v Australian Competition and Consumer Commission (2002) 213 CLR 543 at page 563; Propend at page553 at page 569.
  • 17 Saunders v Commissioner Australian Federal Police (1998) 160 ALR 469 at pages 471–472.
  • 18 Attorney-General (NT) v Maurice (1986) 161 CLR 475 at page 496.
  • 19 Attorney-General (NT) v Maurice at page 490.
  • 20 Esso Australia Resources Ltd v Federal Commissioner of Taxation (1999) 201 CLR 49 (Esso) at paragraphs [64–73].  The dominant purpose test set down by the High Court of Australia in Esso replaced the sole purpose test which was previously applied by Australian courts when determining if legal professional privilege exists.
  • 21 Grant v Downs (1976) 135 CLR 678.
  • 22 FederalCommissioner of Taxation v Spotless Services Ltd (1996) 186 CLR 404 at page 416 and referred to with approval in Mitsubishi Electric Australia Pty Ltd v Victorian Work Cover Authority (2002) 4 VR 332 (Mitsubishi Electric) at page 336 and AWB Ltd v Cole (2006) 152 FCR 271 (AWB v Cole No 1) at page 411.
  • 23 Sparrow v Apand Pty Ltd (1996) 68 FCR 322 at page 328.
  • 24 Pluta and Queensland Rail [2017] QICmr 4 (16 February 2017); Hoy Mobile Pty Ltd v Allphones Retail Pty Ltd [2007] FCA 933 at [15];  Brookfield Multiplex Ltd v ILF Partners Pte Ltd (No 2) [2009 FCA 449 at [4]; AWB v Cole (No. 5) 155 FCR 30 (AWB v Cole), Young J stating that where ‘…communications take place between a client and his or her independent legal advisers, or between a client’s in-house lawyers and those legal advisers, it may be appropriate to assume that legitimate legal advice was being sought, absent any contrary indications.’ (At [44].).
  • 25 AWB Ltd v Cole (No 5) (2006) 155 FCR 30 at page 44 (AWB v Cole No 5); Waterford v Commonwealth (1986) 163 CLR 54 (Waterford) at page 95; Pratt Holdings.
  • 26 Pratt Holdings at page359.
  • 27 Pratt Holdings at page 386.
  • 28 DSE (Holdings) Pty LTd v InterTAN Inc [2003] FCA 1191, at [31] and [45] (Allsop J).
  • 29 Three Rivers District Council v Governor and Company of the Bank of England (No 6) [2005] 4 All ER 948 at page 989; Barnes v Commissioner for Taxation [2007] FCAFC 88.
  • 30 Waterford at pages77 and 85.
  • 31 X and Y v Z [2015] SASC 96 at [31], per Blue J.
  • 32 [2017] QICmr 4 16 February 2017
  • 33 Ibid, at paragraph 18.
  • 34 Mitsubishi Electric at page 341; Visy Industries Holdings Pty Ltd v Australian Competition and Consumer Commission (2007) 161 FCR 122 (Visy) at pages 129–131.
  • 35 Mitsubishi Electric at page 341 and Visy at page130.
  • 36 Trade Practices Commission v Sterling (1979) 36 FLR 244.
  • 37 Carbone v National Crime Authority (1994) 52 FCR 516.
  • 38 (Proudfoot) at page 740; Rich v Harrington (2007) 245 ALR 106 at pages114–117.
  • 39 Waterford at page 70.
  • 40 Waterford at page62.
  • 41 Attorney-General (NT) v Kearney (1985) 158 CLR 500 (Kearney) at pages 530–531.
  • 42 Seven Network Ltd v News Ltd (2005) 225 ALR 672 at page 674.
  • 43 Rilstone v BP Australia Pty Ltd [2007] FCA 1557 at paragraphs [20]–[26].
  • 44 Emphasised in Proudfoot at pages 737–738.
  • 45 at paragraphs [23-24] affirming Vance v McCormack (in his capacity as Chief of Air Force) and Another [2004] ACTSC 85.
  • 46 Hewitt and Queensland Law Society (1998) 4 QAR 328.
  • 47 Mann v Carnell at page15; Osland at paragraph[45].
  • 48 Goldberg v Ng(1994) 33 NSWLR 639 at page 670 (Goldberg v Ng).
  • 49 Mann v Carnell at page 13; Australian Competition and Consumer Commission v Cadbury Schweppes Pty Ltd. [ 2009] FCAFC 32 (20 March 2009) at paragraphs [43]–[45].
  • 50 Mann v Carnell at page 13.
  • 51 R v Cox and Railton (1884) 14 QBD 153 at [165]; R v Bell; Ex parte Lees (1980) 146 CLR 141 at page 145and Attorney-General (NT) v Kearney (1958) 158 CLR 500.
  • 52 See the discussion in C79 and Legal Aid Queensland [2020] QICmr 20 (7 April 2020) at paragraphs 47 - 51
  • 53 P & V Industries Pty Ltd v Porto (No 3) [2007] VSC 113 at paragraph [27].

Current as at: May 20, 2020