Case: Waterford v The Commonwealth [1987] HCA 25 ; (1987) 163 CLR 54 
Outcome: cited
Client legal privilege exists to serve the public interest in the administration of justice by encouraging frank disclosure by clients to their lawyers. As Mason and Wilson JJ stated in Waterford v The Commonwealth [1987] HCA 25 ; (1987) 163 CLR 54 ( "Waterford" ) at 62, "the proper functioning of the legal system is facilitated by freedom of consultation between the client and the legal adviser". Their Honours went on to observe at pages 64-65 that legal professional privilege is the product of a balancing exercise between competing public interests whereby, subject to the well-recognised crime or fraud exception, the public interest in the administration of justice is accorded paramountcy over the public interest in a fair trial conducted by reference to all relevant documents (see also Esso Australia per Gleeson CJ and Gaudron and Gummow JJ at [35]). There is no further balancing exercise to be carried out; if client legal privilege attaches to a communication, the privilege may be waived or overridden by statue but is otherwise absolute ( Telstra Corporation Ltd v Minister for Communications, Information Technology and the Arts (No 2) [2007] FCA 1445 ( "Telstra" ) at [21]). 36 In Waterford Mason and Wilson JJ, in giving consideration to whether it was open to the Commonwealth to claim legal professional privilege in respect of legal advice obtained from employed solicitors within Government, observed at p 62: To our minds it is clearly in the public interest that those in government who bear the responsibility of making decisions should have free and ready confidential access to their legal advisers. Whether in any particular case the relationship is such as to give rise to the privilege will be a question of fact. It must be a professional relationship which secures to the advice an independent character notwithstanding the employment. 37 Brennan J in Waterford similarly stressed the need for the legal adviser to be independent at p 70 where his Honour said: The purpose of legal professional privilege is to facilitate the seeking and giving of legal advice and thereby to ensure that the law be applied and litigation be properly conducted ... If the purpose of the privilege is to be fulfilled, the legal adviser must be competent and independent. Competent, in order that the legal advice be sound and the conduct of litigation be efficient; independent, in order that the personal loyalties, duties or interests of the adviser should not influence the legal advice which he gives or the fairness of his conduct of litigation on behalf of his client. If a legal adviser is incompetent to advise or to conduct litigation or if he is unable to be professionally detached in giving advice or in conducting litigation, there is an unacceptable risk that the purpose for which privilege is granted will be subverted. (Citations omitted) I interpolate that no issue of incompetence arises in this case. 38 Although Brennan J expressed a narrower view than Mason and Wilson JJ on the question of when legal professional privilege attaches to confidential professional communications between government agencies and salaried legal officers, their Honours were in agreement as to the need in every case for the legal adviser to be "independent" (see also Deane J at p 80). See also Alfred Crompton Amusement Machines Ltd v Customs and Excise Commissioners (No 2) [1972] 2 QB 102 per Lord Denning MR at 129. 39 I do not understand the other members of the High Court in Waterford to have suggested a different rationale for the requirement of independence from that identified by Brennan J in the above passage. His Honour's reference to professional detachment is consistent with the ordinary meaning of "independent". The Macquarie Dictionary (online version) relevantly defines "independent" in the following ways: 1. not influenced by others in matters of opinion, conduct, etc; thinking or acting for oneself: an independent person 2. not subject to another's authority or jurisdiction; autonomous, free. 3. not influenced by the thought or action of others; independent research ..... The Oxford English Dictionary defines "independent" in a comparable way.