Historically, at common law, legal professional privilege protected confidential communications between a lawyer and client from compulsory production in the context of court and similar proceedings.

The rationale for the creation of the privilege is the enhancement of the administration of justice by promoting free consultation and disclosure between clients and lawyers, and assisting in the production of information in litigation. On balance, this freedom is considered to outweigh the alternative benefit of having all information available to facilitate the trial process. In Baker v Campbell[1], Deane J described legal professional privilege as ‘a fundamental and general principle of the common law’. The protection only applies where it is intended for a proper purpose — communications made in furtherance of an offence or an action that would render a person liable for a civil penalty are not protected.

Until recent changes to the law, the communication that was sought to be protected had to be made for the sole purpose of contemplated or pending litigation or for obtaining or giving legal advice, as enunciated in Grant v Downs[2]. Following the enactment of s 118 and 119 of the Evidence Act 1995 (Cth), the ‘sole purpose’ test was replaced with a ‘dominant purpose’ test. Later, the High Court’s decision in Esso Australia Resources Ltd v Commissioner of Taxation[3] overruled Grant v Downs, holding that the common law test for legal professional privilege was the dominant purpose test.

The law protects disclosure of documents and communications which are subject to legal privilege from being disclosed, except in a number of circumstances (e.g. where the client waives privilege and allows the document to go into the public domain or of the document or communication made in furtherance of a fraud).

There are two primary limbs of privilege: litigation privilege and advice privilege.

 

Litigation privilege

·       Applies where there are actual or anticipated proceedings.

·       It can cover communications between the lawyer and third parties, as well as between lawyer and client.

 

Advice privilege

·       Applies in Australia to documents and communications between lawyer and client for the dominant purpose of seeking or giving legal advice.

·       For further information on the “dominant purpose” test, see Esso Australia Resources Limited v Federal Commissioner of Taxation (2000) 168 ALR 123.

 

Exceptions

Some lawyer-client communications will not usually attract privilege. For example:

·       Communications made for the purpose of facilitating a crime or fraud. See R v Cox and Railton[4].

·       A client’s name. See Southern Cross Commodities Pty Ltd (In Liq) v Crinis[5].

·       The fact that a client sought legal advice. See R v R[6].

However, remember that obligations of confidentiality may still apply to non-privileged communications. Confidentiality should always be considered before making disclosure.