Glencore International AG v Commissioner of Taxation

In this matter, Glencore International AG (the plaintiffs) sought injunctive relief against the Commissioner of Taxation (the defendants). The dispute arose from documents that the plaintiffs asserted were created for the sole or dominant purpose of receiving legal advice and were therefore protected by legal professional privilege. These documents had been stolen from the plaintiffs' law practice and subsequently obtained by the defendants. The plaintiffs sought an injunction to prevent the defendants from referring to or relying upon these documents, grounding their claim solely in equity's auxiliary jurisdiction based on legal professional privilege, and not on grounds of confidentiality or any other legal basis. The defendants demurred, arguing that the plaintiffs' statement of claim disclosed no cause of action.

The High Court of Australia was required to determine whether legal professional privilege operates solely as an immunity from disclosure or compulsion, or if it also constitutes an actionable legal right that can be the basis for injunctive relief. A further issue was whether public policy considerations justified the creation of such a new actionable right in relation to documents subject to legal professional privilege.

The Court reasoned that the historical operation and nature of legal professional privilege demonstrate that it functions as an immunity, rendering a person immune from powers of compulsion to disclose information. The privilege was developed as a response to state powers to compel disclosure of confidential communications between lawyer and client, providing a defence against such compulsion. The Court concluded that the privilege, as it has historically operated and been understood, does not confer an actionable legal right that can be independently invoked to restrain the use of unlawfully obtained privileged documents.

The demurrer was upheld, and the proceeding was dismissed with costs.