GILLESPIE & GILLESPIE

This matter concerned an application by the applicants, Gillespie & Gillespie, for an order that certain documents be produced by the respondent, the Commissioner of Taxation. The applicants sought access to documents relating to the Commissioner's decision to disallow their objection to an assessment of income tax. The dispute centred on whether the documents sought were subject to legal professional privilege.

The primary legal issue before Newbrun J was whether the documents, which included advice from external counsel and internal memoranda, were protected by legal professional privilege. Specifically, the court had to determine if the dominant purpose for which the documents were created was to obtain or provide legal advice, or for use in litigation.

Newbrun J found that the documents were indeed subject to legal professional privilege. His Honour applied the principles established in *Esso Australia Resources Ltd v Commissioner of Taxation* and *Southern Cross Exploration NL v Fire & Allومات Pty Ltd*, focusing on the dominant purpose test. The court concluded that the advice from external counsel and the internal memoranda were created for the purpose of obtaining legal advice in relation to the objection and potential litigation, thereby satisfying the dominant purpose requirement.

Consequently, Newbrun J ordered that the respondent was not required to produce the documents in question, upholding the claim of legal professional privilege.