Litigation privilege refers to the protection of communications between a client, lawyer (and any third party) for the dominant purpose of anticipated or existing legal proceedings.
The current dominant purpose test, while more complex, significantly broadens the scope of legal professional privilege, as defined in Esso Australia Resources Ltd v Commissioner of Taxation.
[11] Legal professional privilege in the context of court proceedings is governed by the common law in the remaining Australian states.
The High Court in Mann v Carnell[14] established a test of 'inconsistency' to determine whether a client has waived legal professional privilege over a communication.
2),[17] Justice Graham of the Federal Court of Australia refused a claim for privilege over advice provided by in-house counsel of Telstra, holding 'an in-house lawyer will lack the requisite measure of independence if his or her advice is at risk of being compromised by virtue of the nature of his employment relationship with his employer'.
In Vance v Air Marshall McCormack,[19] Justice Crispin of the Supreme Court of the Australian Capital Territory held that privilege only attached to advice provided by lawyers who had a right to practice.
Notwithstanding the above, there is no appellate authority on the extent to which legal professional privilege applies to advice provided by in-house counsel.
[22] On 29 November 2006, Attorney-General Philip Ruddock asked the ALRC to inquire into legal professional privilege in the context of coercive information-gathering powers held by Commonwealth agencies.
A Discussion Paper was released by the ALRC on 26 September 2007, noting the need for a clear and consistent approach to legal professional privilege in Australia and its states and territories.
[23] In April 2011, Assistant Treasurer Bill Shorten announced a consultation on extending privilege to accountants providing tax advice, like their American counterparts.
These sections of the Act aimed to provide further restrictions and protections against oppressive discovery that can cause undue harm to a party in court and may dissuade them from seeking medical care or counselling or damage those relationships, see for example, R v A and B [28] for an appeal on an application in a case for access to discovery across 'Professional confidential relationship privilege' and 'Sexual assault communications privilege' and how the exclusions are decided.
In some jurisdictions in Australia privilege may also extend to journalists,[29] (Shield laws), and priests[30] It may also be invoked in a Public interest,[31] or Matters of State[32] issue.