A recent decision of the Queensland Supreme Court is of significance to Australian inhouse legal practitioners, admitted to practice in a jurisdiction outside of Australia. In particular, the case reaffirms that legal professional privilege will attach to communications by inhouse counsel who have received legal qualifications elsewhere.
A dispute arose between Aquila Coal Pty Limited (Aquila), the plaintiff, and the defendant, Bowen Central Coal Pty Ltd (Bowen) regarding a joint venture agreement for the development of a mine in Queensland. Bowen claimed that it was entitled to withhold certain communications passing between Bowen’s inhouse counsel and its commercial managers, on the basis that the communications were subject to legal professional privilege. It was argued by Aquila, before his Honour Justice Boddice, that the communications did not attract legal professional privilege on the grounds that Bowen’s general counsel was not admitted as a legal practitioner in Australia.
Reasons of the Court
In delivering his judgment, Justice Boddice upheld the New South Wales Supreme Court decision in Ritz Hotel Ltd v Charles of the Ritz Ltd (No 4) , finding that legal professional privilege will attach to communications involving an inhouse lawyer notwithstanding that the legal practitioner was admitted to practice overseas. In his decision, Justice Boddice reinforced that the principle of “legal professional privilege is the privilege of the client, not the lawyer.” As such, to hold that the privilege may be lost simply because a lawyer was qualified outside of Australia would be contrary to this sentiment. His Honour found that it was in the public interest for clients to pursue legal advice without fearing disclosure, however it was not in the public interest that such privilege should not exist because the legal practitioner (although admitted to practice elsewhere) was not admitted to practice in Australia.
His Honour also re-affirmed that the test as to whether legal professional privilege will attach to a particular communication requires the application of the ‘dominant purpose test’, in relation to the genesis of the document. As such, a document will attract legal professional privilege if it is a communication prepared for the dominant purpose of obtaining or providing legal advice (advice privilege), to conduct or aid in the conduct of litigation or where the prospects of litigation are reasonably anticipated (litigation privilege).
Upon an examination of the documents in question, Justice Boddice was satisfied that communications between Bowen’s inhouse legal team were protected by legal professional privilege, on the basis that:
- the communications were for the dominant purpose of obtaining or giving legal advice or to conduct or aid in the conduct of litigation in reasonable prospect
- the inhouse legal team, although they had provided legal advice in the context of commercial considerations, had done so acting as independent legal advisors, as opposed to commercial representatives of Bowen, and
- the communications were confidential.
Justice Boddice held that although such advice usually concerns the commercial considerations of a company, this fact alone will not deprive a document of legal professional privilege. Once an affidavit of documents claiming legal professional privilege is sworn, there is a prima facie rebuttable presumption that the legal advice given was, in truth, independent.
Therefore, the decision stands as reassurance to inhouse legal practitioners, admitted to practice law in jurisdictions other than Australia, that their communications involving the provision of legal services and advice will remain protected by the principles of legal professional privilege.