5.1 Client Legal Privilege

•    Basic Rule: Confidential communications passing between client & legal adviser don’t have to be disclosed by the client and may not be disclosed by the legal adviser without client’s consent if they were made:
-    For purpose of seeking or giving legal advice; or
-    With reference to actual or contemplated litigation
Note: consent by the client will waive disclosure.
•    The privilege is that of the client
•    The rationale of this head of privilege promotes the public interest because it assists and enhances the administration of justice by facilitating the representation of clients by legal advisers…this it does by keeping secret their communications, thereby inducing the client to retain the solicitor and seek his advice, and encouraging the client to make a full and frank disclosure of the relevant circumstances to the solicitor…This privilege reflects the paramountcy of this public interest over the general public interest of a fair trial …on the footing that all relevant documentary evidence is available (Grant v Downs per Stephen, Mason and Murphy JJ)

DOMINANT PURPOSE TEST - WHEN IS A DOC PRIVILEGED?

Grant v Downs (1976) HCA
•    Facts: Woman sued psychiatric hospital for the death of her husband - sought access to a report written after his death, and hospital claimed CLP on grounds that one purpose of the report was to obtain legal advice.
•    Held: Court unanimously said document was not privileged - although majority adopted the ‘sole purpose’ test (which has been rejected) - The communication would have to come into existence for the sole purpose of legal proceedings, or anticipated legal proceedings.
•    Barwick CJ preferred the ‘dominant purpose’ test - the communication would have to come into existence for the dominant purpose of legal proceedings, or anticipated legal proceedings. ‘Primary’ or ‘Substantial’ purpose is not enough – the purpose must be ‘dominant’
•    Fact that a person had other purposes in mind when creating the document won’t deny it privilege, nor will the fact that it was a ‘routine document’ so long as the dominant purpose was legal.
•    Mere fact that the document may prove useful in litigation doesn’t give it CLP.

Baker v Campbell (1983)
•    The privilege should extend to all communications between lawyer and client and not just in relation to litigation
•    The rationale behind the privilege applies equally whether there is litigation or not

Esso v FCT (adopts ‘dominant purpose’ test from Evidence Act)
•    Facts: Challenge by Esso to a tax assessment by FCT - Esso claimed CLP in relation to documents on the basis that they were prepared for the dominant purpose of giving or receiving legal advice.
•    Issues: Case fell outside the Evidence Act, so question was whether the sole purpose test should apply or whether the Common Law should be changed to have a dominant purpose test.
•    Held: The Court overturned the majority in Grant v Downs , saying that the Evidence Act set a new standard and thus Barwick CJ’s view should be adopted.
•    Dominant Purpose Test - a document produced with the dominant purpose of using it or its contents in order to obtain legal advice or to aid in the conduct of actual/contemplated litigation, attracts CLP.
Sparnon v Apand Pty Ltd
•    If there are 2 purpose of equal weight then one doesn’t dominate the other
•    Therefore “dominant
purpose” includes a document that was brought into existence for the purpose of legal communications notwithstanding that some ancillary use of the document was anticipated at the time of its creation.

Australian Federal Police Commissioner v Propend Finance Pty Ltd (1996)
•    If a copy of non-privileged document is made for dominant purpose of legal communications, the copy is privileged - the only exception is that if the original is not in existence/lost/inaccessible and there is no other evidence to prove the content of the original, then the copy loses its privilege.

STATUTE:

•    Part 23 r1 SCR - documents which are privileged under the Evidence Act are also privileged in pre-trial procedures.
•    Part 24 r 6 SCR  - communications protected by the Evidence Act don’t need to be disclosed in interrogatories

Definitions
s117 (1)  “Client” includes the following:
(a) an employer (not being a lawyer) of a lawyer;
(b) an employee or agent of a client;
(c) an employer of a lawyer if the employer is a statutory body
(d) a manager, committee or person acting in respect of a person of unsound mind;
(e) if a client has died—a personal representative;
(f) a successor to the rights and obligations of a client, being rights and obligations in respect of which a confidential communication was made.;
“Confidential communication/document” means when a communication/document was made, the giver or receiver was under an express or implied obligation not to disclose its contents, whether or not the obligation arises at law.

Legal Advice s118
Evidence is not to be adduced if, on objection by a client, the court finds that adducing the evidence would result in disclosure of:                                                                              
(a) a confidential communication made between the client and a lawyer; or
(b) a confidential communication made between 2 or more lawyers acting for the client; or
(c) the contents of a confidential document (whether delivered or not) prepared by the client or a lawyer;                                                                                                             
for the dominant purpose of the lawyer, or one or more of the lawyers, providing legal advice to the client.
•    ‘On objection by the client’ – ie. client’s sole prerogative to disclose
•    If a document is privileged, can’t adduce evidence of a copy of the document because the definition of a ‘document’ includes a copy of the document.
•    Could argue that non-privileged parts of a document are severable from the privileged parts because definition of a document includes part of a document.
•    Communications with 3rd parties, even if made for the dominant purpose of legal advice, are not privileged under s118

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