“The discovery and vindication and establishment of truth are main purposes certainly of the existence of Courts of Justice; still, for the obtaining of these objects… not every channel is or ought to be open to them… Truth, like all other good things, may be loved unwisely – may be pursued too keenly – may cost too much. And surely the meanness and the mischief of praying into a man’s confidential consultations with his legal advisor, the general evil of infusing reserve and dissimulation, uneasiness, and suspicion and fear, into those communications which must take place, and which, unless in a condition of perfect security, must take place uselessly or worse, are too great a price to pay for truth itself.”2
Rationale of Legal Professional Privilege
As Dr Sue McNicol put it:3
“The effect of a successful claim of privilege is often that information which may be vital and relevant to the proper administration of justice is suppressed. Hence it is important to ascertain whether there are worthwhile rationales behind each head of privilege such that each privilege can be defended against the valid competing claims of the proper administration of justice.”4
Tension has always existed between the utilitarian philosophy that all relevant information should be before the judicial officer so a fair and just result may be achieved; and the libertarian philosophy that “individual rights and interests should be protected against undue inference from the law.”5 As stated by Gibbs J in Baker v Campbell6 privilege is “in conflict with another principle of equal importance, namely, that all evidence which reveals the truth should be available for presentation to the court.”7 Similarly the High Court in Esso Australia Resources Limited v Commissioner of Taxation of the Commonwealth of Australia8 underlined the importance of striking an appropriate balance between two competing considerations: “the public policy reflected in the privilege itself, and the public policy that, in the administration of justice and investigative procedures, there should be unfettered access to relevant information.”9
Legal professional privilege, both statutory and common law has two distinct limbs; advice privilege and litigation privilege. While there is not enough time to delve into the history and rationale surrounding the two, for today’s discussion I will be focusing on the overarching justification for legal professional privilege. That is, that it falls within the ambit of public interest by facilitating the application of the rule of law.10Grant v Downs11 articulated the purpose served by legal professional privilege stating at :
“The rationale of this head of privilege, according to the traditional doctrine, is that it promotes the public interest because it assists and enhances the administration of justice by facilitating the representation of clients by their legal advisors, the law being a complex and complicated discipline.”
In order for practitioners to be able to facilitate the administration of justice, they must have open and frank communications with their client. This argument is based on the rationale that clients will be more likely to engage in open and honest communications, and disclose all relevant information regarding a matter if they are assured that their communications will remain confidential.12 Thus in order to maintain the efficiency of our adversarial system “lawyer-client confidentiality must be maintained.”13 Gibbs CJ in Baker v Campbell stated:
“It is necessary for the proper conduct of litigation that the litigants should be represented by qualified and experienced lawyers rather than that they should appear for themselves, and it is equally necessary that a lawyer should be placed in full possession of the facts to enable him to give proper advice and representation to his client. This privilege is granted to ensure that the client can consult his lawyer with freedom and candor; it being thought that if the privilege did not exist “a man would not venture to consult any skillful person, or would only dare to tell his counsellor half his case.”14
Lord Brougham in Greenough v Gaskell15 observed that if privilege did not attach to communications people would be reluctant to seek professional assistance and would be “thrown on his own legal resource,”16 resting on the rationale that in order to maintain an effective adversarial system it is in the best interests of all parties that potential litigants receive assistance from legal advisors.17
When a legal practitioner is in possession of all relevant information they are also in a better position to provide assistance that encourages compliance with the law.18 They are able to do this as full disclosure may reveal spurious and vexatious claims. Moreover, full disclosure aids in discouraging litigation and encouraging settlement by alternative means. It is well recognised that the administration of justice is not solely confined to judicial and quasi-judicial proceedings. Rather, it is concerned with the settlement of disputes, whether or not they are fought at the bar table.19 It was observed by Wilson J in Baker v Campbell that the doctrine of legal professional privilege fosters a candid relationship between a client and their legal practitioner, which in turn obviates recourse to litigation;20 reducing the burden being placed on these processes which is very much in the public interest.
It is also recognised that a distinguishing mark of a free society is the “adequate protection according to law of the privacy and liberty of the individual.”21 In this sense legal professional privilege is a facilitative right, rather than being a right in itself.22 It is “of fundamental importance to the protection and preservation of the right, dignity and equality of the ordinary citizen under the law.”23
On the other hand it might be said that legal professional privilege plays a role in shielding vexatious and useless law suits. As famously stated by English philosopher and legal positivist, Jeremy Bentham, the consequence of removing legal professional privilege will result “in a guilty person not being able to derive quite so much assistance from his law advisor, in the way of concerting a false defense,”24 as it is only the guilty who need protection of the law, not the innocent.
This utilitarian argument proposed by Bentham suggests that the line between innocent and guilty or, right and wrong, is black and white; people are either plainly guilty or plainly innocent. This argument fails to consider that, at least, in civil litigation there may be no such clear line. Under this rationale those that are “plainly guilty” may also find it difficult to retain legal advice, and when they do they may be persuaded that their case is hopeless and they have no alternative other than to plead guilty.25
Legal Professional Privilege: Overview
Legal professional privilege is a principle of substantive law26 which enables a person to resist the disclosing of information or the production of documents to a third party which would otherwise be required to be disclosed.27 This doctrine has statutory force under the Uniform Evidence Acts,28 as well as being acknowledged as a “fundamental and general principle of the common law.”29 As will be later discussed, ss 118 and 119 of the Evidence Act 1995 (Cth) (Evidence Act) apply only to the adducing of evidence in the relevant proceedings. The common law doctrine of legal professional privilege applies in all other circumstances.
Common law privilege attaches to confidential communications made between a lawyer and their client when the communication was made for the dominant purpose of giving or obtaining legal advice (advice privilege), as well as communications made for use in existing or contemplated litigation (litigation privilege).30
Legal professional privilege also attaches to communications between a lawyer and third parties when the communication is made for the benefit of the client, with the purpose of preparing for existing or reasonably apprehended litigation31 as well as attaching to material that records confidential legal advice, including any document that records the work of a lawyer carried our for the benefit of the client, encompassing both advice and confidential legal work.32 The advice from and the request for advice to the lawyer are privileged.33
When a communication is set out in a document, the use of the document is not determinative. Rather, the test is “anchored to the purpose for which the document was brought into existence.”34 A compendious statement of the classes of documents to which privilege will attach was given by Lockhart J in Trade Practices Commission v Sterling.35Relevantly, they include not only the communication between the party and their legal advisor, including any note or record of that communication, but documents that would reveal the knowledge, information or belief of the client derived from privileged communications.36 The important question to be asked is “what was the intended use (or uses) of the document which accounted for it being brought into existence.”37 This is to be determined as a question of fact.38
Legal professional privilege attaches to a communication only if the legal practitioner received or created the communication in their professional capacity,39 for the purpose of the client obtaining professional legal advice. This includes in-house legal counsel, provided that counsel is consulted in a professional capacity in relation to a professional matter and the communications are made in confidence and arise from the relationship of lawyer and client.40 The salaried legal advisor must also be professionally independent or “detached.”41
The concept of legal advice is wide.42 It is not confined to telling the client the law but extends to professional advice as to what a party should prudently or sensibly do in the relevant legal context.43 Where legal advice contains extraneous matter, which cannot be separated from it, the legal advice will not lose its privilege for this reason.44
The existence of privilege is not subject to a balancing exercise in respect of public interest. Unless privilege has been waived by the person entitled to it,45 or has been abrogated by statute it is absolute.46 A recent example where the common law doctrine of legal professional privilege was abrogated was under the James Hardie (Investigations and Procedures) Act 2004 (Cth). It was deemed by Parliament that the ‘public interest’ in discovering truth by facilitating “a comprehensive investigation of matters arising from the New South Wales James Hardies Special Commission of Inquiry” 47 should prevail over the common law right.
The Evidence Act 1995 (Cth)
The relevant provisions of the Evidence Act are ss 118 and 119.
118 “Evidence is not to be adduced if, on objection by the client, the court finds that the adducing of evidence would result in the disclosure of:
(a) a confidential communication made between the client and a lawyer; or
(c) the contents of a confidential document (whether delivered or not) prepared by the client, lawyer or another person;
for the dominant purpose of the lawyer, or one or more of the lawyers, providing legal advice to the client.
119 “Evidence is not to be adduced if, on objection by the client, the court finds that the adducing of evidence would result in the disclosure of:
(a) a confidential communication between the client and another person, or between a lawyer acting for the client and another person, that was made; or
(b) the contents of a confidential document (whether delivered or not) that was prepared;
for the dominant purpose of the client being provided with professional legal services relating to an Australian or overseas proceeding (including the proceeding before the court), or an anticipated or pending Australian or overseas proceeding, in which the client is or may be, or was or might have been, a party.
Originally the Evidence Act applied only to the adducing of evidence in Commonwealth and Australian Territory Courts,48 with selected sections applying to all Australian Courts in certain circumstances.49 This meant that for a majority of Australian Courts, the Evidence Act, almost in its entirety, did not apply.50 As stated by Mason P in Akins v Abigroup Ltd:51
“…each Act is in terms relevantly confined to the adducing of evidence, and that this expression does not in its ordinary and natural meaning extend to ancillary processes involving the pre-trial gathering of evidence.”
This resulted in the ambit of the common law doctrine exceeding that of the Evidence Act;52 as the common law doctrine also applies to ancillary processes such as subpoenas, administration of interrogatories and discovery. This divergence created some difficulties, and, in meeting them, the Full Federal Court in Adelaide Steamship Co Ltd v Spalvins53 resorted to judicial pragmatism.54 In a unanimous decision the Court held that the Evidence Act had “created an entirely new setting to which the common law must now adapt itself, and adapt itself in such a way as to include [the Act] as a fundamental part of its fabric.”55 This resulted in the prevailing view that when a question of legal professional privilege arose at a pre-trial stage, although the Act has no direct application, the common law was to be applied, adapting itself to the statute, thereby applying it derivatively.56
The decision was not without controversy.57 Ultimately a Full Federal Court of five judges, by majority, in Esso Australia Resources Ltd v Federal Commissioner of Taxation,58 found that they were “compelled to the conclusion that Adelaide Steamship was wrongly decided.”59 This decision was upheld on appeal to the High Court.60
It should be noted that s 131A of the New South Wales Evidence Act, s 131A of the Victorian Evidence Act and s 131A of the TasmanianEvidence Act have now extended the application of client legal privilege after one of the recommendations of the Australian Law Reform Commission in its report Uniform Evidence Law. The Commonwealth has also enacted a s 131A in its Evidence Actbut unlike the New South Wales, Victorian and Tasmanian Evidence Acts it extends only to processes under which documents are produced (such as discovery and subpoenas) under Division 1A but not to Division 1 (ss 118 and 119).
1 Paper presented at the Law Society of Western Australia “Legal Professional Privilege: Current Issues and Latest Developments” seminar in Perth on 13 March 2012. The author wishes to acknowledge the assistance of his associate Ms Danielle Bergin in the preparation of the paper.
2 Pearse v Pearse (1846) 1 De G & Sm 12, 28-29 per Knight Bruce V-C; This statement was approved by the High Court in the case of Carter v The Managing Partner, Northmore Hale Davy and Leake (1995) 183 CLR 121 per Deane J.
3 Dr Sue McNicol was an Associate Professor at Monash University and is now a Barrister at Law at the Victorian Bar.
4 Sue McNicol, ‘Implications of the Human Right Rationale for Legal Professional Privilege – The Demise of Implied Statutory Abrogation?’ in P Mirfield and R Smith (eds), Essays for Colin Tapper (2003) 48, 1.
6 (1983) 153 CLR 52.
7 Baker v Campbell (1983) 153 CLR 52, 69.
8 (1999) 201 CLR 49.
9 Esso Australia Resources Ltd v Commissioner of Taxation of the Commonwealth of Australia (1999) 201 CLR 49, 72 per Gleeson CJ, Gaudron and Gummow JJ.
10Carter v The Managing Partner, Northmore Hale Davy and Leake (1995)183 CLR 121,129.
11 (1976) 135 CLR 674
12 See Attorney – General for the Northern Territory v Maurice (1986) 161 CLR 475.
13 Ysaiah Ross, Ethics in Law: Lawyers’ Responsibility and Accountability in Australia (5th ed, 2010) 371; see also Grant v Downs (1976) 135 CLR 674, per Dawson J.
14 Baker v Campbell (1983) 153 CLR 52, 66.
15 (1833) 39 ER 618, 621.
17 Ross, above n 12, 371.
18 Australian Law Reform Commission, Privilege in Perspective: Client Legal Privilege in Federal Investigations, Report No 107(2008) [2.15].
19 Baker v Campbell (1983) 153 CLR 52, 94.
21 Baker v Campbell (1983) 153 CLR 52, 95 per Wilson J.
22 Australian Law Reform Commission (107), above n 17, [2.43].
23 Carter v The Managing Partner, Northmore Hale Davy and Leake (1995) 183 CLR 121, 145 per Toohey J; Attorney-General for the Northern Territory v Maurice (1986) 161 CLR 475.
24 Jeremy Bentham, Rationale of Judicial Evidence (1827) Vol VII, 474 (Banring ed), extracted in M Pirsig and K Kirwin, Professional Responsibility: Cases and Materials (4th ed, 1984) 113-14.
25 Ross, above n 12, 371.
26 Attorney-General for the Northern Territory v Maurice (1986) 161 CLR 475 at 490 per Deane J.
27 Australian Law Reform Commission (107), above n 17, [3.1].
32 Commissioner of Australian Federal Police v Propend Finance Pty Limtied (1997) 188 CLR 501, 569 per Gummow J. This principle has been further discussed in AWB Limited v Cole (2006) 152 FCR 382, - per Young J.
33 Bolton v Liverpool Corporation (1833) 1 My & K 88 at 94; 39 ER 614 at 617.
34 Commissioner of Australian Federal Police v Propend Finance Pty Limited (1997) 188 CLR 501, 508 per Brennan CJ.
35 (1979) 36 FLR 244.
36 Trade Practice Commission v Sterling (1979) 36 FLR 244, 245-46.
37 Pratt Holdings Pty Ltd v Commissioner of Taxation (2004) 136 FCR 357 at 366; see also Grant v Downs (1976) 135 CLR 674, 692; Commissioner of Australian Federal Police v Propend Finance Pty Limited (1997) 188 CLR 501, 508.
38 Waterford v Commonwealth (1987) 163 CLR 54, 66.
39 Trade Practices Commission v Sterling (1979) 36 FLR 244 at 245 per Lockhart J; Attorney- General of the Northern Territory v Kearney (1985) 158 CLR 500 at 530-531 per Dawson J.
40 Waterford v Commonwealth (1987) 163 CLR 54, Dawson J at 96; Deane J at 79-82.
41 Rich v Harrington (2007) 245 ALR 106; see generally Candacal Pty Ltd v Industry Research & Development Board  FCA 649 at  – , .
43 Balabe v Air India  Ch 317, 323; Nederlandse Reassurantie Group Holdings NV v Bacon & Woodrow  1 All ER 976, 983; Three Rivers District Council v Governor and Company of the Bank of England (No 6)  UKHL 48;  1 AC 610, 652-653, 657-658 -, 681  and 683 ; Dalleagles Pty Ltd v Australian Securities Commission (1991) 4 WAR 325 at 332-333; DSE (Holdings)Pty Ltd v InterTAN Inc (2003) 135 FCR, 161-167 -.
44 Waterford v Commonwealth (1987) 163 CLR 54, 66, 103.
45 Commissioner of Australian Federal Police v Propend Finance Pty Limited (1997) 188 CLR 501, 550 per McHugh J.
46 Waterford v Commonwealth (1987) 163 CLR 54, 64-65; Attorney General for the Northern Territory v Kearney (1985) 158 CLR 500, 532; Carter v Managing Partner, Northmore Hale Davy & Leake (1995) 183 CLR 121, 128, 133, 163; Commissioner of Australian Federal Police v Propend Finance Pty Limited (1997) 188 CLR 501, 552.
47 Ian Govey, ‘Legal Professional Privilege and Commonwealth Investigatory Bodies’ (Paper presented at 35th Australian Legal Convention, Sydney, 23 March 2007).
48 Section 131A of Evidence Act 1995 (NSW), s 131A of the Evidence Act 2008 (Vic) and s 131A of the Tasmanian Evidence Act have extended client legal privilege to include any compulsory process of disclosure (including discovery and subpoenas). The Commonwealth has also enacted a s 131A but unlike the NSW and Vic Evidence Acts it only extends to processes under which documents are produced (such as discovery and subpoenas) under Division 1A.
49 See Evidence Act 1995 (Cth) ss 5, 6, 185, 186, 187. The exclusions set out in s 4(5) should also be noted.
50 Ronald Desiatnik, Legal Professional Privilege in Australia (2nd ed, 2005) 184.
51 (1998) 43 NSWLR 593, 545
52 Mann v Carnell (1999) 201 CLR 1, .
53 (1998) 152 ALR 418.
54 Desiatnik, above n 50, 194.
55 Adelaide Steamship Co Ltd v Spalvins (1998) 152 ALR 418, 428.
56 See Mann v Carnell (1999) 201 CLR 1.
57 See Australian Competition and Consumer Commission v Australian Safeway Stores Pty Ltd (1998) 153 ALR 393; BT Australasia Pty Ltd v State of NSW (No. 7) (1998) 153 ALR 722, 736 Sackville J.
58 (1998) 159 ALR 664.
59 Esso Australia Resources Ltd v Commissioner of Taxationof the Commonwealth (1998) 159 ALR 664, 676 per Black CJ and Sundberg J, 721 per Finkelstein.
60 Esso Australia Resources Ltd v Commissioner of Taxation of the Commonwealth (1999) 201 CLR 49.