A recent decision of the Queensland Supreme Court is of significance to Australian in-house legal practitioners admitted to practise in a jurisdiction outside Australia. In particular, the case reaffirms that legal professional privilege will attach to communications by in-house counsel who have obtained their legal qualifications elsewhere.
A dispute arose between Aquila Coal Pty Limited and Bowen Central Coal Pty Ltd 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 in-house counsel and its commercial managers, on the basis that the communications were subject to legal professional privilege. Aquila argued that the communications did not attract legal professional privilege, as Bowen's general counsel was not admitted as a legal practitioner in Australia.
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 in-house lawyer even if that legal practitioner is admitted to practise overseas.
In his decision, the judge reinforced that the principle that "legal professional privilege is the privilege of the client, not the lawyer". Therefore, to hold that the privilege may be lost simply because a lawyer is qualified outside Australia would be contrary to this sentiment. He found that it is in the public interest for clients to pursue legal advice without fearing disclosure, but it is not in the public interest that such privilege should not exist because the legal practitioner (although admitted to practise elsewhere) is not admitted to practise in Australia.
The judge also reaffirmed that the question of 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); or
- conducting or aiding in the conduct of litigation or where the prospect of litigation is reasonably anticipated (litigation privilege).
On examination of the documents in question, the judge was satisfied that communications between Bowen's in-house 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 conducting or aiding in the conduct of litigation as a reasonable prospect;
- although the in-house legal team had provided legal advice in the context of commercial considerations, it had done so acting as independent legal advisers, as opposed to commercial representatives of Bowen; and
- the communications were confidential.
The judge further 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 has been sworn, there is a prima facie rebuttable presumption that the legal advice given was, in truth, independent.
The decision stands as reassurance to in-house legal practitioners admitted to practise 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.
For further information on this topic please contact Mitch Coidan or Lishien Ng at Piper Alderman by telephone (+61 2 9253 9999), fax (+61 2 9253 9900) or email (email@example.com or firstname.lastname@example.org).
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