Esso Australia Resources Ltd v Federal Commissioner of Taxation

[1999] HCA 67

HIGH COURT OF AUSTRALIA

GLEESON CJ,
GAUDRON, McHUGH, GUMMOW, KIRBY AND CALLINAN JJ

ESSO AUSTRALIA RESOURCES LIMITED  APPELLANT

AND

THE COMMISSIONER OF TAXATION
OF THE COMMONWEALTH OF AUSTRALIA    RESPONDENT

Esso Australia Resources Limited v The Commissioner of Taxation
[1999] HCA 67
21 December 1999
M53/1999

ORDER

1. Appeal allowed with costs.

1. Set aside the orders of the Full Court of the Federal Court of Australia made on 22 December 1998, and in place thereof, order that:

i)the appeal to that Court be allowed with costs; and

ii)the respondents pay the costs of the proceedings before Foster J.

1. Questions of law raised for decision for Foster J answered:

a) The correct test is the dominant purpose test, which is the common law test for claiming legal professional privilege.

b)Does not arise.

On appeal from the Federal Court of Australia

Representation:

B J Shaw QC with J W de Wijn QC for the appellant (instructed by Clayton Utz)

2.

D M J Bennett QC, Solicitor-General for the Commonwealth with C M Maxwell QC and M M Gordon for the respondent (instructed by Australian Government Solicitor)

Notice:  This copy of the Court’s Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.

CATCHWORDS

Esso Australia Resources Limited v The Commissioner of Taxation

Practice and procedure – Discovery – Legal professional privilege – Whether test for privilege is "dominant purpose" test or "sole purpose" test.

Evidence – Legal professional privilege – Client legal privilege – Test for – Whether "dominant purpose or sole purpose".

Statutes – Influence on common law – Evidence Act 1995 – Applicable in three Australian jurisdictions – Whether enactments affect development of common law – Significance of non-enactment in other jurisdictions – Relevance (if any) of Act to application to review past authority of High Court.

Words and phrases – "client legal privilege".

Evidence Act 1995 (Cth), ss 118, 119.
Federal Court Rules, O 15 r 15.

1. GLEESON CJ, GAUDRON AND GUMMOW JJ.   The central issue in this appeal concerns the test for determining whether what is usually called legal professional privilege, (an expression which might suggest erroneously that the privilege is that of the lawyer), or what is called in the Evidence Act 1995 (Cth) client legal privilege[1], applies in relation to discovery and inspection of confidential written communications between lawyer and client.

   [1]The Evidence Act also confers a similar privilege on unrepresented litigants:  s 120.

2. The test in the Evidence Act is whether the communication was made, or the document was prepared, for the dominant purpose of the lawyer providing legal advice or legal services[2].  The dominant purpose test accords with the common law test now adopted in England[3], New Zealand[4], Ireland[5], and most Canadian Provinces[6].  It was favoured by Barwick CJ in the leading Australian case on the subject, Grant v Downs[7].  However, a majority in that case (Stephen, Mason and Murphy JJ) preferred a sole purpose test.  Hence, since 1976, courts in Australia have applied the common law of…