Legal professional privilege can be a complex area. But it can also be a very important area for practitioners and their clients. Fast, accurate answers to difficult questions about legal professional privilege can be extremely valuable. By Lawyers provides substantial commentary, cases and legislation on legal professional privilege in both Practice Management and 101 Subpoena Answers publications.

Evidence Act or common law?

A critical consideration when dealing with legal professional privilege is whether the uniform evidence law or the common law applies. Generally, in state courts the applicable state Evidence Act applies in all situations. However in federal jurisdictions, the Commonwealth Evidence Act applies at trial, but the common law applies in interlocutory proceedings.

The recent case of Dr Michael Van Thanh Quach v MLC Life Limited (No 2) [2019] FCA 1322 dealt with legal professional privilege in a federal jurisdiction. The matter involved an objection taken to the production of documents under subpoena. The objection was on the basis of legal professional privilege, and specifically litigation privilege.

Being an interlocutory application Griffiths J applied (at [12]) the common law test where ‘litigation privilege attaches to confidential communications between a legal advisor or client and a third party if made for the dominant purpose of use in, or in relation to, litigation which is then on foot or is reasonably anticipated’.

Evidence

The court held that whomever claims privilege bears the onus of establishing the basis for the claim. That party is required to adduce admissible direct evidence to demonstrate that the claim is properly made. This means revealing the relevant characteristics of each document that will allow the court to uphold a claim for privilege. Simply tendering the relevant document and asking the court to test for privilege will not be sufficient. This affirms Brereton J’s decision in Hancock v Rinehart (Privilege) [2016] NSWSC 12 that the court’s power to inspect a document is not to facilitate the requisite proof, but to scrutinise and test the claim.

This is an important point for practitioners instructed to make such a claim. Detailed evidence must be filed as to the reason for and circumstances of the creation of the documents, including how confidentiality was maintained. The deponent of the affidavit may be cross-examined. For this reason the solicitor with carriage of the matter should think very hard before being the one to swear such an affidavit.

‘Reasonably anticipated’

Griffiths J also affirmed that, for the privilege to apply, the litigation must be reasonably anticipated, not simply a mere possibility. This does not mean more likely than not. It is to be determined objectively.

More information

See the By Lawyers Practice Management guide, or the 101 Subpoena Answers publication in the Reference materials folder of every By Lawyers litigation guide, for more detail about this case and more information on legal professional privilege generally.