Posted on August 25, 2019 by Megan Hawley and
Limits of Legal Professional Privilege
On 14 August 2019, the High Court of Australia in Glencore International AG v Commissioner of Taxation  HCA 26 unanimously dismissed an application for an injunction to restrain the use of documents subject to legal professional privilege. The application was made in stand alone proceedings, and not as part of other proceedings in which the documents were sought to be relied on. The Court stated that there was no cause of action entitling the plaintiff to seek the injunction.
A series of documents, including the plaintiff’s legal advice, were stolen from an electronic file management system, were assumed to be further disseminated, and ultimately came into the possession of the Commissioner of Taxation. The plaintiff asked the Commissioner to return the documents and undertake not to use the documents or rely on them. When the Commissioner refused to do so, the plaintiff applied to the Court seeking the injunction.
There was no dispute that the documents were the subject of legal professional privilege. The Court also referred to decisions of the Court to the effect that documents which are subject to legal professional privilege are exempt from production by court processes or statutory compulsion. However, the Commissioner was not attempting to require the production of the documents in court, or under statute, rather the Commissioner had the documents, and wanted to use them in exercising its statutory powers including assessing taxable income.
The High Court’s decision
The Court held that there is no separate cause of action which can be used to prevent a person using documents they have obtained which are subject to legal professional privilege. There can be a cause of action for a breach of confidentiality, but that was not claimed in this case.
The Court accepted that legal professional privilege is an ‘important common law immunity‘ which is an ‘immunity from compulsion to produce documents that evidence confidential communications about legal matters between lawyers and clients‘, but found there was no need to transform the nature of the privilege from an immunity to a cause of action which may be brought against anyone with respect to documents which may be in the public domain.
The case is a reminder of the nature of legal professional privilege. A person cannot be required to produce documents subject to the privilege in legal proceedings. Also, under the Government Information (Public Access) Act 2009, for example, there is an overriding public interest against disclosure of documents subject to the privilege.
However, if the privileged documents are inappropriately dealt with, and come to be in possession of a third party, there is no entitlement to approach the Court for an injunction to prevent their use. There could, as the High Court noted, be a cause of action based on breach of confidentiality, but that may be difficult if the documents are in the public domain.
To protect the subject matter of legal advice and other privileged communications, measures should be taken to secure the information to ensure it does not fall into the wrong hands. Such measures may involve limiting the number of people within an organisation who have access to such documents, and if legal advice needs to be considered in a council meeting, for example, providing copies of the documents at a closed session, but requiring the return of the documents before the end of the meeting.
See our article here regarding a councils powers regarding the maintaining of confidentiality of papers in council meetings.
If you wish to discuss the above please do not hesitate to contact Megan Hawley on 8235 9703.