Legal professional privilege for in-house lawyers
A Federal Court decision reiterated a number of important principles regarding the creation, and claiming, of legal professional privilege
The Federal Court, in the recent decision in Gaynor v Chief of the Defence Force (No. 2)  FCA 817 (Gaynor), reiterated a number of important principles regarding the creation, and claiming, of legal professional privilege.
This included affirming the decision of the ACT Court of Appeal in Commonwealth of Australia v Vance  ACTR 47 that it is not necessary for an in-house legal practitioner to hold a practising certificate for legal professional privilege to attach to their correspondence.
Mr Gaynor- sought access to a number of documents relevant to the termination of his service in the Army Reserve by the Chief of the Defence Force, and a decision to counsel the applicant about particular comments he made on Twitter which were considered inappropriate. The applicant had sought judicial review of the decision to terminate his service, and related decisions, under the Administrative Decisions (Judicial Review) Act 1977.
The respondent claimed the relevant documents were subject to legal professional privilege, as they had been prepared by Legal Officers within the Australian Defence Force for the purpose of providing advice about the applicant’s dismissal and related issues. Some of the documents also contained summaries of legal advice provided by external law firms.
Summary of law
The court provided a helpful discussion of the law on legal professional privilege, particularly in a Commonwealth in-house context. Key principles discussed in the court decision are set out below:
- Legal professional privilege can apply to the communications of in-house lawyers, and will attach to a variety of different kinds of documents and communications, both internally and externally, prepared for the purpose of providing legal advice on litigation. 'Legal advice' is a broad term, and can include strategic advice of the kind sometimes prepared by legal officers in relation to handling legal issues.
- The common law governs claims for privilege on documents produced prior to trial in the Federal Court as the Evidence Act 1995 (Cth) only applies to the tendering of evidence. This differs, for example, to the position in the ACT Supreme Court, where the Evidence Act 2011 applies to pre-trial procedures.
- The test for whether a particular document will be privileged is a ‘dominant purpose’ test. This means a legally privileged document can have a number of purposes, provided legal advice is the dominant purpose. This allows for the protection of information in briefs and other documents prepared in an in-house context where one document can perform a variety of functions, although a document cannot have more than one dominant purpose.
- Once a claim for privilege is asserted by a party, the burden is on that party to prove the claim if it is challenged. This will require affidavit evidence describing the documents and their contents, which should be drafted in the clearest possible terms without disclosing the content of the advice- Merely asserting a claim for privilege, or providing only brief descriptions of the relevant documents is not sufficient.
- The court will usually need to examine some or all of the claimed documents to determine whether the claim for privilege can be substantiated.
The court found that Legal Professional privilege applied to all of the documents. This was because the Legal Officers in question were persons who met the test for legal professional privilege set down by Dawson J in Waterford v The Commonwealth (1987) 163 CLR 54 in that they were ‘qualified to practice law and… subject to the duty to observe professional standards and the liability to professional discipline’.
The evidence before the court was that the Legal Officers were all persons who held practising certificates, and were entitled under s 122B of the Defence Act 1903 (Cth) to ‘exercise their professional rights and discharge their duties in accordance with the generally accepted rights, duties and obligations applying to legal practitioners’.
The court found that, while a practising certificate is not necessary for a legal officer’s advice to fall within the scope of legal professional privilege, it is a relevant factor that the court will take into account. The court emphasised the need to determine whether the legal officer has the degree of independence necessary to give impartial legal advice both as a matter of fact and by reference to the nature of their role. In this case, it was relevant that s 122B of the Defence Act 1903 (Cth) gave legal officers the necessary independence to perform their functions.
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