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Privilege Test at Common Law |
A decision of the High Court confirms that the common law test for legal professional privilege is now the same as the test under the Evidence Act. |
The decision in Esso Australia Resources Limited v The Commissioner of Taxation involved an appeal against amended income tax assessments from 1987 to 1992. |
Esso refused to provide discovery of 577 documents on the basis of legal professional privilege. |
The Tax Commissioner contested the privilege claim on the basis that the “sole purpose” of the documents was not the provision of legal advice or preparation for litigation. |
The High Court upheld the privilege claim on the basis that the “dominant purpose” of the documents was the provision of legal advice or preparation for litigation. It adopted a broader standard than the previous Australian common law test. Under the previous test, the only communications which could attract legal professional privilege were those which had been brought into existence for the “sole purpose” of providing legal advice or preparing for litigation. |
