Case affirms legal professional privilege

In Sea Swift Pty Ltd v Torres Strait Island Regional Council,¹ the court affirmed the relevant principles of legal professional privilege (LPP).

The court was required to determine whether the documents in question attracted LPP and whether such privilege was waived in respect of certain information.

At [12]-[13], the court provided useful guidance to practitioners of this process when dealing with such an application.

Notably,

1. LPP protects confidential communications brought into existence for the dominant purpose of obtaining or giving legal advice or for conduct of, or use in, existing or anticipated litigation;
2. the concept of legal advice is fairly wide;
3. the “dominant” purpose is the “ruling, prevailing or most influential purpose”;
4. in the context of litigation privilege, the mere fact that a document may prove of use or in connexion with supervening litigation does not qualify the document as a privileged document;
5. the dominant purpose is a question of fact to be determined objectively, as at the time the document came into existence;
6. an appropriate starting point when applying the dominant purpose test is to ask what was the intended use or uses of the document which accounted for it being brought into existence;
7. evidence of the document maker’s intention is not irrelevant but is not conclusive of the purpose;
8. if there are two purposes of a communication which are of equal weight, LPP does not attach to the communication;
9. if a document would have been prepared irrespective of the purported legal advice purpose or litigation purpose, the dominant purpose test will not be satisfied;
10. the party asserting a claim to privilege will bear the onus to establish facts giving rise to it and must do so by admissible direct evidence.
11. the court is not bound to accept an assertion about a claim to privilege;
12. the court may examine the document to assess the claim and draw inferences from the document itself.²

The court also referred to the findings of Young J in AWB Ltd v Cole (No 5)³ where it was identified that;

1. the onus to establish the claim of privilege may be discharged by evidence as to the circumstances and context in which a communication occurred/document created or as to the purposes of the person who made the communication/document, or procured its creation;
2. the onus is not discharged by mere assertion;
3. LPP may protect the disclosure of documents that record legal work carried out by the lawyer to the benefit of the client;
4. subject to meeting the dominant purpose test, LPP extends to notes, memoranda or other documents made by officers or employees of the client that relate to information sought by the practitioner;
5. LPP may attach to communications between a salaried legal adviser and their employer, provided that the legal adviser 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.⁴

Sarah Millar is a Law Clerk with the QLS Ethics and Practice Centre.

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Footnotes
¹ [2023] QSC 160 (‘Sea Swift’).
² Ibid [12].
³ (2006) 155 FCR 30 at 44–46, [44].
⁴ Sea Swift (n 1) [13].