In July last year the Sunday Times revealed J.K Rowling as the
author behind the pseudonym Robert Galbraith. Whilst there was
speculation that it was a publicity stunt the real source behind
the leak was in fact Rowling's lawyer. This incident
highlighted the issue of legal professional privilege and the type
of communication between a client and lawyer that will be
In Australia, legal professional privilege is based in both
common law and legislation. Sections 118 and 119 of the
Evidence Act 1995 (Cth) state that confidential
communications created for the dominant purpose of
providing legal advice or litigation are protected from disclosure
to federal courts.
What is Legal Professional Privilege?
There are many relationships in society where there is a general
duty to maintain confidentiality - doctor and patient,
psychotherapist and patient, social worker and client, journalist
and source and priest and penitent (the so called confessional
confidentiality). In all of these cases the court will consider all
the circumstances in which a communication was made, and balance
the need for confidentiality against the need for disclosure.
Legal professional privilege applies to the relationship between
a lawyer and their client and is different to a general duty to
maintain confidentiality. The effect of legal professional
privilege is that certain communications between a lawyer and a
client and/or material prepared for a case are privileged and are
not required to be disclosed. Legal professional privilege is a
privilege claimed by the client (not the lawyer) to keep
communications for the purpose of giving or obtaining legal advice
and/or providing legal services confidential.
What type of communication is privileged?
Some of the circumstances that must be present to establish that
a communication is privileged include;
There must be a lawyer-client relationship;
The privilege must be claimed for a confidential communication
between client and lawyer; and
The communication must be made for the dominant purpose of
obtaining or giving legal advice, or for providing legal services
in respect of actual or anticipated legal proceedings.
The dominant purpose test was held to be the test for legal
professional privilege in Esso Australia Resources Ltd v
Commissioner of Taxation. The purpose of the communication is
examined and not the specific information it contains. Legal
professional privilege will exist between a client and his or her
lawyer in relation to all communications made for the dominant
purpose of giving or obtaining legal advice or the provision of
legal services, including representation in legal proceedings.
Communications with a third party can also attract legal
professional privilege as established in Pratt Holdings v
Commissioner of Taxation. In 2004, in Pratt Holdings v
Commissioner of Taxation, the Full Federal Court held that a
third party's communication with a client, even where there is
no litigation pending, could potentially be protected by legal
professional privilege. Previously, it was thought that the
protection would only apply where the third party was not
independent, but was acting as the client's agent in making the
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
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This was an interlocutory decision about the appointment of a tutor for the child appellant, to carry on his proceedings.
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