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Evidence, privilege, legal professional client privilege 2

Eastmark Holdings Pty Limited v Kabraji (No 3) [2012] NSWSC 1463 (3 December 2012) Hallen J

To qualify, the usual criteria are that the communication must be: (a) confidential; (b) of a professional nature; and (c) made with the dominant purpose of obtaining or giving legal advice: McCormick on Evidence (6th ed, 2006) § 88; Baker v Campbell [1983] HCA 39;(1983) 153 CLR 52, 115-116.
The concept of advice is fairly wide. Such advice may include advice as to what should, or should not, be done in a "relevant legal context": Balabel v Air India [1988] Ch 317, 330, per Taylor LJ; General Manager, WorkCover Authority of NSW v Law Society of NSW [2006] NSWCA 84, at [77], per Handley, Hodgson and McColl JJA. "[L]egal advice is not confined to telling the client the law; it must include advice as to what should prudently and sensibly be done in the relevant legal context": Three Rivers District Council v Governor and Company of the Bank of England (No 6) [2004] UKHL 48[2005] 1 AC 610.
In AWB v Cole (No 5) [2006] FCA 1234(2006) 155 FCR 30, at [46], Young J noted: [46] ...
A letter of engagement between a solicitor and a client is not privileged except to the extent that it records legal advice or material touching upon legal advice to be given: Cook v Pasminco Ltd (No 2) [2000] FCA 1819(2000) 107 FCR 44, at [45]-[48]; Australian Securities and Investments Commission v Mercorella (No 3) [2006] FCA 772, at [22].
However, by way of other example, a bill of costs will be privileged if it records the progress of legal advice or its nature, but documents of that nature which do not disclose the nature or content of privileged material are not: Ainsworth v Wilding (No 2) [1900] 2 Ch 315;Allen Allen & Hemsley v Deputy Commissioner of Taxation (New South Wales) [1989] FCA 125(1989) 86 ALR 597R v Manchester Crown Court; Ex parte Rogers [1999] 4 All ER 35Australian Securities and Investments Commission v Mercorella (No 3), at [22].
There may also be a separate category of document that is privileged because it has the purpose of providing legal assistance, for example, draft conveyances and the like: Dalleagles Pty Ltd v Australian Securities Commission, at 333; Burrup Fertilisers Pty Ltd (Receivers and Managers Appointed) v Oswal (No 7) [2012] FCA 1185, at [5].
To qualify as the dominant purpose, the relevant purpose must be the ruling, prevailing or most influential purpose: Mitsubishi Electric Australia Pty Ltd v Victorian WorkCover Authority [2002] VSCA 59(2002) 4 VR 332, at 336, [10]; Federal Cmr of Taxation v Spotless Services Ltd [1996] HCA 34(1996) 186 CLR 404, at 416. It is not sufficient that the purpose is the primary purpose or even a substantial purpose: Grant v Downs [1976] HCA 63(1976) 135 CLR 674, at 678 per Barwick CJ. The test is one of "clear paramountcy": Waugh v British Railways Board [1979] UKHL 2[1980] AC 521, at 543; Sydney Airports Corporation Ltd v Singapore Airlines Ltd [2005] NSWCA 47, at [7]; Melrose Cranes and Rigging Pty Ltd v Manitowoc Crane Group Australia Pty Ltd [2012] NSWSC 904, per S G Campbell J, at [15].
Mason J also emphasised the need for confidentiality in O'Reilly v State Bank of Victoria [1983] HCA 47(1983) 153 CLR 1, at 22-23:...
A "confidential communication" includes a communication from, or to, a person, who when it was made or prepared, or received, was under an obligation not to disclose its contents, whether or not such an obligation arose under law. Or as Dawson J put it in Johns v Australian Securities Commission [1993] HCA 56(1993) 178 CLR 408, at 436, "communications made in confidence by one person to another".
In Rickard Constructions Pty Ltd v Rickard Hails Moretti Pty Ltd [2006] NSWSC 234 Bergin J (as her Honour then was) said, at [33], that:
"... matters relevant in assessing whether a confidential obligation is implied in relationships or circumstances outside that of solicitor/client include the nature of the relationship in question and the circumstances, including conduct and/or conversations, surrounding the communications or documents in question. It is also permissible to have regard to the nature of the documents in question and the purpose and context of their communication: see Bulk Materials (Coal Handling) Services Pty Ltd v Coal and Allied Operations Pty Ltd (1998) 13 NSWLR 689 at 695E."
The obligation must exist at the time when the communication was made or prepared.

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