Legal Professional Privilege an Immunity not a Legal Right

Legal professional privilege protects the production of communications between a lawyer and their client.  The privileged extends to documents created for the sole or dominant purpose of giving or obtaining legal advice, including representation in proceedings in a court.

The privilege exists to serve the public interest in the administration of justice by encouraging full and frank disclosure by clients to their lawyers.

However, in the recent High Court Decision of Glencore International AG v Commissioner of Taxation [2019] HCA 26 it has been determined that legal professional privilege is not an enforceable legal right but is instead an immunity from production of documents.

In this case, the plaintiffs were a group of companies involved with a law practice in Bermuda.  Documents containing privileged materials were stolen from the electronic file management system of the law practice in Bermuda and disseminated to the public.

The defendants, the Australian Tax Office (“ATO”), ultimately obtained copies of the documents and refused to return them to the plaintiffs.

The plaintiffs sought an injunction against the ATO to restrain the use of the documents solely on the basis of legal professional privilege, rather than on the basis of confidentiality, unjustified invasion of privacy or other area of law.

The High Court held that no cause of action had been disclosed by the plaintiffs, that legal professional privilege was not an actionable legal right in of itself and found in favour of the ATO, effectively allowing them to use the privileged documents.

Kim Wilson SC I Director I Accredited Family Law Specialist I Arbitrator | Nationally Accredited Mediator (AIFLAM)