Lee v NSW Commissioner of Police

The case of Lee v NSW Commissioner of Police involved a dispute concerning the scope of client legal privilege. The appellant, Lee, sought to assert privilege over certain documents and Post-it notes that were potentially relevant to the proceedings. The court was tasked with determining whether the privilege claim extended to the Post-it notes, which were attached to documents that were subject to a privilege claim. Furthermore, the court needed to decide whether the privilege claim could be deferred or if it should be resolved immediately. Notably, the Post-it notes were not initially subject to a privilege claim, and the specific documents to which they were attached had not been identified.

The central legal issues revolved around the interpretation and application of client legal privilege, particularly in relation to ancillary documents such as Post-it notes. The court had to consider whether these notes, which were not themselves documents of communication but rather markers or references, could be protected by the privilege claim made over the underlying documents. Additionally, the court examined the procedural aspects of privilege claims, including the timeliness and manner in which such claims should be made and assessed. This involved a review of whether the privilege claim could be deferred pending further information or if it required immediate resolution.

In resolving these issues, the court emphasised the importance of clear and contemporaneous privilege claims. It held that Post-it notes, which were not independently subject to a privilege claim and which were attached to documents that had not been specifically identified, could not be protected by the privilege claim made over the broader set of documents. The court also noted that the privilege claim should not be deferred indefinitely and must be determined based on the available evidence at the time of the application. This decision underscored the necessity for claimants to be precise and timely in asserting privilege to ensure its protection. The outcome of the case highlights the stringent requirements for establishing client legal privilege, particularly in relation to ancillary materials that are not directly subject to a privilege claim.

The court ultimately ruled that the privilege claim did not extend to the Post-it notes in question. Consequently, the appellant's application to protect these notes under the doctrine of client legal privilege was dismissed. This decision underscores the necessity for clear and contemporaneous privilege claims to be effective. The court's ruling serves as a reminder to legal practitioners of the importance of meticulous documentation and timely privilege claims to safeguard the confidentiality of client communications.