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 RTI Act provides that information which would be privileged from production in a legal proceeding on the ground of legal professional privilege is exempt from release. Decision makers should refer to the Annotated Legislation3 for more information.

How to apply the LPP exempt information provision

Broadly, for information to be subject to LPP it must be a communication:

  • that was and remains confidential
  • made in the course of a lawyer/client relationship; and
  • which is:
  • between the client and the lawyer for the dominant purpose of seeking or providing legal advice (advice privilege)
  • from a third party at the client’s request for the dominant purpose of assisting the lawyer to provide legal advice (advice privilege); or
  • from the lawyer or the client (or a third party at the request of the lawyer or the client) for the dominant purpose of use in existing or reasonably anticipated legal proceedings (litigation privilege).

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

  • the holder of LPP has engaged in any conduct inconsistent with maintaining confidentiality in the information which may constitute waiver of the privilege; or
  • the circumstances give rise to the application of the improper purpose exception.

If a decision maker establishes that information is subject to LPP they do not have to apply a public interest test before they can refuse access.4 Parliament has already decided that LPP information is contrary to the public interest to release. Whether information sought under the RTI Act is subject to LPP will depend upon the particular facts of each case. 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.

A decision maker must objectively consider the information to which access is sought in light of all the relevant circumstances and form a view guided by the application of the common law principles discussed in this guideline.

Elements of LPP - confidential communications

LPP applies to the communications (privileged communications) rather than the document in which the communication is recorded5. However, a document which records the substance of privileged communications between a client and legal adviser is protected by LPP unless it has been waived.

The key issue is whether the disclosure of the document would also disclose a privileged communication.6

Not all communications between a legal adviser and a client are privileged.  To attract LPP, the communication must be confidential.7

Confidentiality can be difficult to establish when communications are made in the presence of third parties who are neither agents nor employees of the client or legal adviser.  Generally, if a third party is present the communication will not have the confidentiality necessary to attract privilege8.

  1. Copies of non-privileged documents

    A document will not be subject to LPP simply because it was copied to a legal adviser for their information.9 For example, if a client requests policy advice and copies the communication to the lawyer without also requesting legal advice the policy advice will not be subject to LPP.

    However, copies of non-privileged documents can attract LPP if those copies satisfy the dominant purpose test.10 For example, a non-privileged document that is copied for the purpose of inclusion in a brief to counsel will be subject to LPP.11 The test is whether the communication (in this case, the copy) was created for a privileged purpose.

  2. 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.

  3. 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 legal adviser 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 legal adviser.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 legal adviser 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, only one of those purposes will be the dominant one.  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.

It is relevant to consider evidence of the intent of the document’s author or of the individual upon whose instructions the communication was created, but the intent is not determinative.23 Generally, the dominant purpose is to be determined at the time the communications or documents recording communications were brought into existence.

Advice privilege

Advice privilege attaches to confidential communications made for the dominant purpose of obtaining or providing legal advice between a legal adviser and client, or a client/legal adviser and a third party.24

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 legal adviser
  • for the dominant purpose of obtaining legal advice.25

In some circumstances, if the dominant purpose requirement is met privilege can apply to communications where the third party is not an agent of the client or legal adviser26, for example, where the third party is a specialist retained to ensure the client obtains accurate legal advice about their particular circumstances.

However, privilege does not apply to advice prepared for the dominant purpose of financial, personal, commercial or public relations matters27 nor does it apply to policy or administrative advice.28

Litigation privilege

Litigation privilege attaches to confidential communications between a legal adviser and client made for the dominant purpose of use in, or in relation to, litigation.

For litigation privilege to apply the litigation must have either 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 not”.29 Judgement about whether litigation is reasonably anticipated requires an objective view of the circumstances.30

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.31

Example

Communications between a legal adviser and a potential witness where the dominant purpose of the communication was for the lawyer to obtain evidence for use in a prosecution.32

Elements of LPP - professional relationship and independence

Privilege only attaches to confidential communications between a legal adviser and a client where:

  • the advice is provided by the legal adviser in his or her capacity as a professional legal adviser; and
  • the legal adviser is appropriately qualified and independent.33

Whether a legal adviser is appropriately qualified may be established by proof of the legal adviser’s admission to practice as a barrister or solicitor.34 A lawyer employed by a government agency or an 'in-house' lawyer—such as a salaried officer employed as a legal adviser to the agency35—may claim privilege on behalf of his or her employer as the client.36

Communications between employee legal advisers of an agency and their employers as the client (including communications through other employees of the same employer) will be privileged as long as 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.37 Other factors which may impact the independence of a legal adviser 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 objectives38; and
  • whether the legal adviser holds a practicing certificate39 (note, however, that lack of one does not make it impossible to claim privilege)40.

Where privilege does not apply

Even where the tests for privilege are satisfied, documents may not be subject to legal professional privilege because privilege has been waived, either expressly or impliedly, or the improper purpose exception applies.

Waiver

If privilege has been waived, documents cannot be exempt under schedule 3, section 7 of the RTI Act.41

Privilege can be waived by:

  • intentionally disclosing a privileged communication (express waiver); or
  • engaging in conduct inconsistent with maintaining the confidentiality that the privilege 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.42

  1. Express waiver

    When a party deliberately and intentionally discloses a privileged communication, legal professional privilege which once attached to that communication will be expressly waived.43 The most common instance of express waiver is when documents which would otherwise be privileged are filed and served on an opposing party to litigation.

  2. Implied waiver

    Privilege can be impliedly waived by voluntary conduct which is inconsistent with maintaining the confidentiality that the privilege is intended to protect.44 For example, discussing the contents of a legal advice as part of an interview given to the media or describing the contents of legal advice 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.

Disclosure for a limited and specific purpose

Disclosing a privileged communication to a third party will not always constitute a full waiver of privilege.  If privileged communications are disclosed to a third party for a limited and specific purpose, privilege may be waived only for that purpose in relation to the third party, but not for an opposing litigant.45

Illegal or improper purpose

Privilege is not available where a communication is made as part of an illegal or improper purpose or a purpose contrary to the public interest.46 It is irrelevant whether or not the legal adviser knew about the improper purpose.  This is called the improper purpose exception.

A distinction needs to be made between a communication made for the purpose of achieving an illegal or improper purpose and a communication made seeking advice about past illegal or improper conduct.  The former communication does not attract privilege as it is made for an improper purpose, however a communication made for the purpose of seeking advice in relation to past improper conduct may be a privileged communication.47

Common issues which arise

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.

The Information Commissioner has identified the following issues that may arise with respect 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.  Accordingly, if this evidence cannot be ascertained from the face of a document, 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.

Disclaimer

LPP is a complex area of law which is constantly developing.  This Guideline should be read in conjunction with OIC’s Annotated Legislation and recent decisions of Australian courts and tribunals in relation to LPP. Whether privilege attaches to information or documents for which an applicant applies will always depend on the particular facts of the case.

  • 1 And the Information Privacy Act 2009 (Qld) (IP Act)
  • 2 References to an agency in this guideline include a Minister.
  • 3 http://www.oic.qld.gov.au/annotated-legislation.
  • 4 Section 48 of the RTI Act.
  • 5 Commissioner of Australian Federal Police v Propend Finance Pty Ltd (1997) 188 CLR 501 (Propend) at page 85.
  • 6 Mann v Carnell (1999) 201 CLR 1 (Mann v Carnell).
  • 7 Esso Australia Resources Ltd v Federal Commissioner of Taxation (1999) 201 CLR 49.
  • 8 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.
  • 9 Pratt Holdings Pty Ltd and Another v Commissioner of Taxation (2004) 136 FCR 357 (Pratt Holdings) at 366.
  • 10 Propend at pages 509, 543–544 and 554.
  • 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 page 553 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 Federal Commissioner 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 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.
  • 25 Pratt Holdings at page 359.
  • 26 Pratt Holdings at page 386.
  • 27 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.
  • 28 Waterford at pages77 and 85.
  • 29 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.
  • 30 Mitsubishi Electric at page 341 and Visy at page130.
  • 31 Trade Practices Commission v Sterling (1979) 36 FLR 244.
  • 32 Carbone v National Crime Authority (1994) 52 FCR 516.
  • 33 Re Proudfoot and Human Rights and Equal Opportunity Commission (1992) 28 ALD 734 (Proudfoot) at page 740; Rich v Harrington (2007) 245 ALR 106 at pages114–117.
  • 34 Waterford at page 70.
  • 35 Waterford at page62.
  • 36 Attorney-General (NT) v Kearney (1985) 158 CLR 500 (Kearney) at pages 530–531.
  • 37 Seven Network Ltd v News Ltd (2005) 225 ALR 672 at page 674.
  • 38 Rilstone v BP Australia Pty Ltd [2007] FCA 1557 at paragraphs [20]–[26].
  • 39 Emphasised in Proudfoot at pages 737–738.
  • 40 Aquila Coal Pty Ltd v Bowen Central Coal Pty Ltd (2013) QSC 82 at paragraphs [23-24] affirming Vance v McCormack (in his capacity as Chief of Air Force) and Another [2004] ACTSC 85.
  • 41 Hewitt and Queensland Law Society (1998) 4 QAR 328.
  • 42 Mann v Carnell at page15; Osland at paragraph[45].
  • 43 Goldberg v Ng(1994) 33 NSWLR 639 at page 670 (Goldberg v Ng).
  • 44 Mann v Carnell at page 13.
  • 45 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].
  • 46 R v Cox and Railton (1884) 14 QBD 153 at [165]; R v Bell; Ex parte Lees (1980) 146 CLR 141 at page 145 and Attorney-General (NT) v Kearney (1958) 158 CLR 500.
  • 47 P & V Industries Pty Ltd v Porto (No 3) [2007] VSC 113 at paragraph [27].

Current as at: November 7, 2018