The High Court has confirmed the longstanding judicial principle that legal professional privilege is a shield, not a sword. While the doctrine can be relied upon to resist the disclosure of privileged communications, it cannot be relied upon to restrict the use or further dissemination of communications which have already been disclosed.
In Glencore International AG v Commissioner of Taxation  HCA 26, the High Court considered the proper operation of legal professional privilege and its legal effect. The case arose from a claim by the Glencore group of companies (Glencore) in relation to the prospective use of particular documents (referred to as the “Glencore documents”) by the Commissioner of Taxation (Commissioner). The Glencore documents were contained within a group of documents colloquially referred to as the “Paradise Papers”. The Paradise Papers had been stolen from the electronic file management systems of Appleby (Bermuda) Limited (Appleby), an incorporated law practice in Bermuda, and provided to the International Consortium of Investigative Journalists.
The plaintiffs contended that the Glencore documents were created for the sole or dominant purpose of the provision by Appleby of legal advice to Glencore in relation to the corporate restructure of Australian entities within the Glencore group. Consequently, Glencore claimed that the Glencore documents were subject to legal professional privilege and on that basis, the Court should grant an injunction restraining the Commissioner from making use of the documents.
The High Court unanimously rejected Glencore’s application, refusing to grant the injunction sought. In reaching this decision, the High Court considered the historical development and operation of the doctrine of legal professional privilege. While the High Court accepted that the Glencore documents were plainly the subject of legal professional privilege, the Court held that this alone was not a proper basis for the relief sought (an injunction restraining the use of the documents).
Critically, the High Court held that legal professional privilege is, and always has been, an immunity or freedom from the exercise of legal power or control, rather than an actionable legal right. In this case, the documents in question had already been released and were already accessible to the defendants. The Court noted that the case law in relation to legal professional privilege did “not suggest as possible any further relief beyond that which ensured that privileged documents need not be produced”. The Court held that legal professional privilege is not a proper basis for injunctive relief once privileged communications have been disclosed, and that “resort must be had to equity for protection respecting the use of that material.”
This case illustrates the limitations of the doctrine of legal professional privilege. Government agencies which have issued statutory notices to produce may therefore be sceptical of, and open to interrogating, privilege claims, particularly in circumstances where the claims are relied on not to resist disclosure of documents, but to prevent the use of documents already disclosed. Conversely, organisations should be careful to treat legally privileged documents confidentially and to safeguard their confidentiality. Where accidental or unauthorised disclosure of privileged documents occurs, organisations need to take prompt steps to protect the confidentiality of the material, including seeking injunctive relief to prevent further dissemination or inappropriate use of the material.
As the High Court’s decision in the case of Glencore makes clear, such injunctive relief will need to be sought pursuant to equitable doctrines, rather than the doctrine of legal professional privilege.
Authors: Susan Goodman & Melissa de Jongh
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Published by Susan Goodman, Melissa de Jongh