Hamdan v Minister for Immigration and Multicultural and Indigenous Affairs

In the case of Hamdan v Minister for Immigration and Multicultural and Indigenous Affairs, the applicant, Ms Hamdan, was served with a notice under s 18 of the Act by the Minister on 13 September 2004. The notice required her to provide the telephone number she used to speak to her client on 6 September 2004. Ms Hamdan sought legal advice from counsel and the Law Society of South Australia and has refused to provide the information sought for reasons of legal professional privilege. The primary contentions raised by the Minister were that the telephone number is a collateral fact to which legal professional privilege does not attach, and that privilege did not attach in any event as the client’s purpose was to frustrate the processes of the law.

The court examined the scope and rationale of legal professional privilege, noting that the privilege is a rule of substantive law that may be availed of by a person to resist the giving of information or the production of documents which would reveal communications between a client and their lawyer made for the dominant purpose of giving or obtaining legal advice or the provision of legal services. The rationale of the privilege is to serve the public interest in the administration of justice by encouraging full and frank disclosure by clients to their lawyers. The court rejected the Minister’s contention that the telephone number was a collateral fact, holding that legal professional privilege did indeed attach to the information sought in the notice.

The court concluded that the applicant is not obliged to comply with the notice of the Minister and that legal professional privilege attaches to the information sought in that notice. The court ordered that the Minister pay the applicant’s costs and did not consider it necessary to grant the injunctive relief sought in the application. The court’s decision emphasised the importance of legal professional privilege in facilitating the application of the rule of law and protecting the client’s right to seek and obtain legal advice without the apprehension of being prejudiced by subsequent disclosure of the communication.