Case: Pratt Holdings Pty Ltd v Commissioner of Taxation [2004] FCAFC 122 ; (2004) 136 FCR 357
Outcome: cited
It is sufficient for present purposes to begin by stating that in order to maintain a claim of legal professional privilege, a proponent must demonstrate the communication is protected by "advice privilege" or "litigation privilege." The relationship between the two types of legal professional privilege is just one of the matters that is unclear in Australian privilege law. Some cases support the proposition that "litigation privilege is a separate category of legal professional privilege ": Public Transport Authority of Western Australia v Leighton Contractors Pty Ltd [2007] WASCA 151 at [18] ; See also R v King [2007] 2 NZLR 137; Westgold Resources NL v St Barbara Mines Ltd [2007] WASC 47 ; Mitsubishi Electric Australia Pty Ltd v Victorian Work Cover Authority [2002] VSCA 59 ; (2002) 4 VR 332; Southern Equities Corporation Ltd v West Australian Government Holdings Ltd (1993) 10 WAR 1 and Dingle v Commonwealth Development Bank of Australia (1989) 23 FCR 63. On the other hand, it is also true that the " High Court has yet to make clear whether litigation privilege has an existence and rationale distinct from the advice privilege ": eg, Leighton [2007] WASCA 151 at [20] ; AWB Ltd v Cole [2006] FCA 571 ; (2006) 152 FCR 382; Ingot Capital Investments Pty Ltd v Macquarie Equity Capital Markets Ltd (2006) 67 NSWLR 91; Westpac Banking Corporation v 789Ten Pty Ltd (2005) 55 ACSR 519 and Pratt Holdings Pty Ltd v Commissioner of Taxation [2004] FCAFC 122 ; (2004) 136 FCR 357. 8 With respect to advice privilege it was, until recently, uncontroversial that the proponent had to establish three elements: (1) a confidential communication, (2) between a lawyer and client, (3) made for the dominant purpose of giving or receiving legal advice: see Commissioner of Australian Federal Police v Propend Finance Pty Ltd [1997] HCA 3 ; (1997) 188 CLR 501, 508-09 (stating that a confidential lawyer-client relationship is required) and Esso Australia Resources Ltd v Commissioner of Taxation (Cth) [1999] HCA 67 ; (1999) 201 CLR 49 at [61] (adopting the dominant purpose test). The Full Court of the Federal Court has now dispensed with the second requirement, holding that third-party communications may come within the ambit of advice privilege: Pratt Holdings [2004] FCAFC 122 ; (2004) 136 FCR 357 at [49] , and [105]. 10 With respect to litigation privilege, on the other hand, the analysis is not so simple. It is clear that the privilege applies only to documents or communications if they are made or prepared (1) in anticipation of litigation (or during pending litigation) and (2) for the purpose of the litigation (eg, with a view to obtaining legal advice or evidence for use in the litigation): Leighton [2007] WASCA 151 at [12] . (That the documents in question here were all prepared at a time when litigation was anticipated or on foot was common ground.) A lawyer-client relationship is not required: Pratt Holdings [2004] FCAFC 122 ; (2004) 136 FCR 357. However, in contrast to the settled confidentiality requirement of the advice privilege, the authorities are divided as to whether litigation privilege may attach to communications (or documents summarizing communications) between a third-party, independent witness and a client even where they are not confidential: State of New South Wales v Jackson [2007] NSWCA 179 at [37] ( "There is some controversy over the need for confidentiality in litigation privilege at common law, and the controversy is particularly material to privilege for communications between client and third party" ); Leighton [2007] WASCA 151 at [21] - [30] (collecting and summarizing the conflicting authorities). The picture becomes even more complicated if one makes a further distinction, as some authorities do, based on whether such witness statements are found in the hands of the witness or in the hands of the lawyer: A Ligertwood, Australian Evidence (4 th ed) at 291-92, quoted in Leighton [2007] WASCA 151 at [26] . 40 In Trade Practices Commission v Sterling (1979) 36 FLR 244, 246, Lockhart J described the litigation privilege rule as follows: Communications passing between the party and a third person (who is not the agent of the solicitor to receive the communication from the party) if they are made with reference to litigation either anticipated or commenced, and at the request or suggestion of the party's solicitor; or, even without any such request or suggestion, they are made for the purpose of being put before the solicitor with the object of obtaining his advice or enabling him to prosecute or defend an action. See also ACCC v FFE Building Services [2003] ATPR 41-967 at [24]-[33]; Leighton [2007] WASCA 151 at [12] ; Pratt Holdings [2004] FCAFC 122 ; (2004) 136 FCR 357 at [1] , [89] and [96].