INFORMATION SHEET

Frequently asked questions on legal professional privilege

1. What is legal professional privilege? record has been disseminated or made 2. What is the test for legal public it would not be confidential. professional privilege? Legal professional privilege (LPP) is a privilege claimed by a client to withhold Privilege extends to communications The test for whether a confidential information or documents that would with a third party for the benefit of the communication is privileged focuses on reveal confidential communications lawyer’s client, provided the dominant the purpose for which the communication between lawyer and client made for the purpose is legal advice. For example, a was made, not the information in the dominant purpose of: confidential opinion from an engineering communication. Where there is more consultant or a witness statement than one purpose, the communication • giving or obtaining legal advice; or obtained for the dominant purpose of will not be privileged unless the claimant • providing legal services, including actual or anticipated legal proceedings (client) demonstrates that the dominant representation in legal proceedings would be privileged. purpose was legal advice or litigation. If that have actually commenced or are there is an equally valid reason for the anticipated by the person claiming It also prevents the disclosure of creation of the communication then it is legal professional privilege. documents that record legal work not privileged. carried out by the lawyer for the benefit The privilege applies to communications of a client, such as notes or research A document or other form of confidential as well as documents. It will prevent memoranda. communication will be protected by access to oral communications and legal professional privilege if it has been records of communications in any form. Documents such as contracts, created for the dominant purpose of accounting records, internal reports and obtaining legal advice or preparing for, LPP serves the public interest, and memoranda that were not created for or conducting, court proceedings. This is underpins the rule of law, by facilitating the dominant purpose of legal advice called the “dominant purpose test”. free communication between the client or litigation will not be covered by legal and the legal adviser. LPP protects privilege, even if they have been lodged If the communication was created for communications, not documents per with the lawyer for the purpose of more than one purpose, then the person se, still less the information given by or obtaining legal advice. claiming legal privilege must establish obtained in the document 1. that the dominant purpose was to The test for whether a confidential seek or give legal advice or to conduct There is no application of LPP to communication is privileged focuses litigation. For example, a report produced information itself that witnesses can on the purpose for which the for the purpose of obtaining legal advice provide under compulsory interview, communication was made, not the may also provide an evaluation of a about what they have observed or what information in the communication. particular procedure. The report would conclusions they can draw from those Where there is more than one still be privileged. If, however, it was observations. The witness must answer purpose, the communication will not created primarily to evaluate particular the questions. The communication must be privileged unless the claimant operating procedures of the organisation, be confidential, made in a confidential (client) demonstrates that the dominant it would not be privileged. manner and confidentiality must be purpose was legal advice or litigation. If preserved. If the communication, or the there is an equally valid reason for the creation of the communication then it is 1 Esso Australia Resources Ltd v The Commissioner not privileged. of Taxation (1999) 201 CLR 49 at 79, 82 1 3. How is legal professional privilege Documents produced by the company The following information is required to applied to an investigation? following its own investigation will only make an informed decision: be privileged if they are confidential • a clear description of the Interviewing witnesses communications between the company and its lawyer for the purpose of communication including the date on When an investigation is required, an obtaining legal advice, or for litigation. which it was made (e.g. fax from... inspector will generally attend a site For example, an investigation carried out to...regarding...dated...) shortly after the incident or occurrence by a safety and health representative • justification of the claim for privilege. takes place. would not be privileged. Each document must satisfy all the elements of privilege to justify the That the employer has obtained a All other corporate documents should be claim for non- disclosure: statement from any person will not available to be produced upon request. affect the inspector’s investigation. The –– there must be a lawyer–client relationship inspector has the power to interview Claim of legal privilege in a –– the privilege must be claimed any person who he or she believes can document provide information about the incident or for a confidential communication occurrence. between a client and lawyer, or Adequate opportunity to make a claim with a third party for the benefit Privileged documents The inspector is required to give of the client adequate opportunity for the company –– the communication must have Only confidential communications representative to claim legal professional been made for the dominant between a lawyer and client, brought privilege for particular documents, unless purpose of obtaining or giving into existence for the dominant there is no possibility of privilege being legal advice, or for providing purpose of obtaining legal advice, or applicable.2 legal services in respect of actual for use in actual or contemplated legal or anticipated legal proceedings. proceedings, are privileged. The claim Where a communication has been Documents such as contracts, employee brought into existence for more than A claim of privilege to resist the records, maintenance records and work one purpose, the person claiming production of documents should be systems will not be privileged, even if the privilege must establish that the made clearly and precisely. An assertion they have been given to the company dominant purpose is for legal advice or that a document is protected by privilege lawyer for the purpose of providing legal litigation. will not, on its own, be enough. advice or for litigation. The person claiming privilege does not The claim must be made and justified for Communications with the company have to give information that would individual documents. A blanket claim for lawyer seeking advice about the legal reveal the content of the document, but a group or bundle of documents is not position of the company may have been should provide sufficient evidence to valid. made immediately after the accident demonstrate objectively that the claim is valid. or occurrence. These communications The person claiming legal professional will be privileged, but are unlikely privilege has the onus of proving that to be relevant to the conduct of the the claim is valid. They must provide Disputes or uncertainties investigation. sufficient information to enable the Where there is a claim made that a inspector to determine whether the document or communication is subject 3 particular document will be privileged. to legal professional privilege, the inspector needs to inform the manager 2 Federal Commissioner of Taxation v Citibank Ltd of investigations and the Legal Services (1989) 89 ATC 4268 at 4293 Branch. 3 Re: National Crime Authority v S (1991) 29 FCR 203; (1991) 54 A CRIM R 307

The material in this information sheet is provided for general Comprehensive work safety and health information provided information only and should not be relied upon for the purpose by the Department of Mines and Petroleum can be found at: of a particular matter. You should seek legal advice from your own lawyer before taking any action or decision on the basis of www.dmp.wa.gov.au/ResourcesSafety this material.

Issued 23 September 2014

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