Posted on March 12, 2026 by Liam Mulligan and Tim Lawson 3

Draft Statements of Reasons and board communications – does legal professional privilege apply?

The preparation of a statement of reasons is a common part of the making of many administrative decisions. As part of our work advising state and local government decision makers, we are often asked to review drafts of the statement of reasons, or related documents such as assessment reports, and to provide advice before decisions are made.  A question sometimes arises as to whether such work constitutes legal advice so as to attract legal professional privilege. A recent decision of the NSW Court of Appeal confirms that, in many cases, these drafts and the associated advice will be subject to legal professional privilege.

Background

The proceedings concerned an application for judicial review of two decisions of the Legal Profession Admission Board (Respondent) which had refused the applicant’s application for re-admission as a lawyer, and refused a request to reconsider that decision.

The Applicant filed a notice of motion seeking orders for production of documents which he alleged would enable him to properly particularise his grounds for judicial review in a Summons.

The documents sought included draft reasons for the impugned decisions, which were authored by the Respondent’s Legal Officer.

The Respondent opposed disclosure of these documents, claiming that they were subject to legal professional privilege.

The Applicant submitted that production was necessary to permit the Court to determine whether the impugned decisions were validly made, and contended that the documents were part of the administrative record of the Respondent’s decisions and either did not attract privilege as it was not prepared for the dominant purpose of legal advice, or alternatively, privilege had been waived.

Decision

The Court of Appeal held that the draft reasons were subject to a claim of legal professional privilege, which operated to protect the documents against disclosure.

In reaching this conclusion, the Court referred to key principles governing legal professional privilege and communications between a legal advisor and the recipient of the advice:

• generally, a communication prepared for the dominant purpose of legal advice or litigation is subject to legal professional privilege: Esso Australia Resources Ltd v Commissioner of Taxation of the Commonwealth of Australia (1999) 201 CLR 49;
• legal advice provided by in-house or employed legal advisers may properly be subject to a claim of privilege: Evidence Act, s 119; Waterford v Commonwealth (1987) 163 CLR 55 at 74-75;
• legal advice provided to a statutory board or tribunal may be privileged if it was given to advise the board or tribunal in the exercise of its statutory function: Keung v Abbott [2017] SASCFC 58 at [101]-[105] (Kelly J);
• communications from a legal advisor such as draft statements of reasons may contain legal advice, for instance that the reasons proposed reflect a proper legal analysis of the relevant material before the board, complies with the board’s statutory obligations and public law duties, and accords with the client board’s instructions:  New South Wales v Betfair Pty Ltd (2009) 180 FCR 543; and
• where communications between the Board and a legal adviser “involve the seeking or application of legal skill and knowledge to the question of what the board may or may not validly do, [or] seeking to obtain effective and valid draft reasons that accord with the board’s instructions” those communications will be subject to legal professional privilege.

In this case, the reasons were prepared for the purpose of the Legal Officer giving legal advice as to the proper and lawful discharge of the Respondent’s statutory and public law obligations, and therefore were subject to legal professional privilege and protected against disclosure.

The requested production of documents was also found to have failed the test of apparent relevance, lacked the necessary specificity for production to be ordered and was regarded as a ‘fishing expedition’. The notice of motion was subsequently dismissed.

The take away from the case is that legal professional privilege may be applicable to a wide range of materials relied upon in the process of statutory decision-making and which entitles the statutory body to withhold potentially relevant documents from inspection by the other party.

You can read the full text of the judgment here: Montenegro v Legal Profession Admission Board – NSW Caselaw

If you have any questions regarding this article, please leave a comment below or contact Liam Mulligan on (02) 8235 9715 or Timothy Lawson.