Independent Commission Against Corruption v Cunneen & Ors

The Independent Commission Against Corruption (ICAC) sought to obtain documents from Mr. Cunneen, a former Crown Prosecutor, and his solicitors, alleging that these documents were relevant to an investigation into alleged corruption. Mr. Cunneen resisted the production of these documents, claiming they were protected by legal professional privilege. The High Court of Australia was tasked with determining the scope of this privilege in the context of an ICAC investigation.

The central legal issue before the High Court was whether the privilege against the disclosure of professional communications between a client and their legal adviser, as recognised at common law, extended to protect documents that might reveal the commission of a future or ongoing crime or fraud. Specifically, the court had to consider if the "criminal or fraudulent purpose" exception to legal professional privilege, which applies at common law, was abrogated or modified by the provisions of the Independent Commission Against Corruption Act 1988 (NSW).

The High Court held that the common law privilege against disclosure of professional communications between a client and their legal adviser does not extend to communications made for the purpose of facilitating or concealing a crime or fraud. This principle, known as the "iniquity rule," was found to be a fundamental aspect of the common law and was not displaced by the ICAC Act. The court reasoned that the purpose of legal professional privilege is to facilitate the administration of justice, and this purpose is undermined when legal advice is sought or given to further criminal or fraudulent conduct. Therefore, documents that fall within the scope of the iniquity rule are not protected by legal professional privilege, even in the context of an ICAC investigation.

The High Court dismissed the appeal, finding that the documents sought by ICAC were not protected by legal professional privilege.