Australia: Proving Privilege And The Obligation To Substantiate The Claim

Last Updated: 12 May 2008
Article by Ashley Tsacalos

The recent decision in Telstra Corporation Limited v Minister for Communications, Information Technology and the Arts (No. 2) [2007] FCA 1445 (12 September 2007) should be noted where there is potential for a government department or agency to provide preliminary discovery of documents. This decision is important for a party required to produce documents or substantiate a claim for legal professional privilege.


The issue between the applicant and the Minister for Communications, Information Technology and the Arts (the Minister) arose following the Federal Government's award of a funding agreement for a Broadband Connect Infrastructure Program (Infrastructure Program) to OPEL Networks Pty Ltd after an open Expression of Interest process.

This decision arose as a result of an application for preliminary discovery filed by the applicant against the Minister, and the applicant's claim of legal professional privilege in relation to documents relating to the application for preliminary discovery.

The applicant applied for preliminary discovery of certain documents under Order 15A rule 6 of the Federal Court Rules. The Minister issued the applicant with a Notice to Produce (Minister's Notice to Produce) and the applicant applied to set aside certain paragraphs of the Notice. Justice Graham dismissed the application and directed the applicant to produce the documents the subject of the Minister's Notice to Produce. The Minister's Notice to Produce required the production of, amongst other things, documents recording or referring to the applicant's consideration of the decision to commence proceedings.

Issues And Findings

The applicant advised the Minister that it would claim legal professional privilege in relation to several emails and draft memoranda which fell within the scope of the Minister's Notice to Produce. In doing so, the applicant indicated that either the author or the recipient of the relevant email or draft memorandum was an internal legal adviser to the applicant. No evidence was advanced, however, to identify the level of independence of the internal legal advisers as legal practitioners, the roles they performed or to show that the legal advice was provided with the requisite impartiality. The Court emphasised that there was nothing in the descriptions of the documents to show that, by their nature, they might be considered to be privileged.

In his decision, Justice Graham considered the principles of legal professional privilege in the context of an application for preliminary discovery for the purposes of assisting a party to determine whether to commence proceedings, noting that in "civil litigation there is a general predisposition towards all cards being placed on the table'".

His Honour noted that the test for legal professional privilege was whether the communication was for the dominant purpose of providing legal advice andstated that the dominant purpose was "the ruling, prevailing or most influential purpose". He added that, due to the "dominant purpose" test, there are now more likely to be circumstances where it would be necessary for a party, who has verified by affidavit a list of documents claiming privilege, to be cross-examined to test the claim for privilege in the event of a disputed claim.

The relevant time at which a claim for privilege is to be determined is the time when the document came into existence. The onus of proving privilege lies with the party claiming it. This can be done by pointing to either the nature of the documents or the circumstances in which they were bought into existence.

Justice Graham stated that:

"In my opinion an in-house lawyer will lack the requisite measure of independence if his or her advice is at risk of being compromised by virtue of the nature of his employment relationship with his employer. On the other hand, if the personal loyalties, duties and interests of the in-house lawyer do not influence the professional legal advice which he gives, the requirement for independence will be satisfied."

He concluded that the applicant had not satisfied him that legal professional privilege existed in relation to the documents. Justice Graham also declined to review the documents because more than the terms of the documents themselves would need to have been established to show that they were bought into existence for the dominant purpose of providing or receiving legal advice.

His Honour stated that it was unnecessary for him to reach any concluded view in relation to whether the applicant should be entitled to an order under Order 15A rule 6. However, he commented that it would be unjust to allow such relief in circumstances where the applicant had failed to place before the Court the information in its possession to enable a decision to be made whether to commence proceedings in the Court to obtain the relevant relief. He stated that "it would seem surprising if the applicant could advance its claim for relief under Order 15A rule 6 without laying bare all of the information which it had, whether privileged or not."

In a further judgment on 11 October 2007, Justice Graham dismissed the application, made pursuant to Order 15A rule 6 of the Federal Court Rules. In His Honour's opinion, there was no reasonable cause to establish that the applicant had a right to the claimed relief on the alleged basis that, in reaching her decision, the Minister failed to satisfy herself that the proposed expenditure was consistent with Commonwealth policies.

According to His Honour, there was insufficient evidence to enable the Court to conclude that, after making all reasonable enquiries, the applicant did not have sufficient information to enable a decision to be made whether to commence proceedings against the Minister. As a result, the requirement for a successful application for discovery by a prospective respondent had not been met.


Although Justice Graham noted that privilege cannot be established by relying on a verbal formula or ritual, what can be taken from the decision is the need for careful preparation of evidence substantiating any claim for legal professional privilege.

Based on the authorities and principles referred to in the case, when preparing an affidavit in support of a claim of legal professional privilege, consideration should be given to the following points:

1. avoid making general conclusions and assertions;

2. explain the character of the documents as this will assist in illuminating the purpose for which they were bought into existence;

3. ensure that the deponent of the affidavit is willing to be subjected to cross-examination of its contents;

4. explain the role of the legal adviser and demonstrate that the legal adviser was giving independent and impartial legal advice - being a legal practitioner does not of itself occasion the necessary level of independence;

5. provide focused and specific evidence of the thought processes behind, or the nature and purpose

of the advice being sought in respect of each document; and

6. of course, show that the document came into existence for the dominant purpose of giving or receiving legal advice.

It is understood that the applicant will be appealing this decision and the appeal will be heard before the full Federal Court.

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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Ashley Tsacalos
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