O'KANE v Freelancer International Pty Ltd & Anor (No.2)

O'Kane (the applicant) brought proceedings against Freelancer International Pty Ltd and another (the respondents). The dispute concerned the discoverability of certain fee notes issued by lawyers to their clients, which the applicant sought to have admitted as evidence. The matter came before Judge Manousaridis in the Federal Court of Australia.

The central legal issue before the Court was whether fee notes issued by lawyers to their clients were protected by legal professional privilege. If privilege was found to apply, the Court was then required to determine whether such privilege had been waived. This waiver was alleged to have occurred either through an expert costs assessor referring to and assessing costs by reference to invoices (which were said to be derived from the fee notes), or by the delivery of the invoices to opposing counsel in response to a call for production, without privilege being claimed at that time.

Judge Manousaridis held that fee notes, in themselves, are not inherently privileged. Privilege attaches to communications made for the dominant purpose of giving or receiving legal advice, or for use in litigation. While fee notes may contain information that reflects such communications, they are primarily commercial documents recording the services rendered and the fees charged. The Court found that the applicant had not established that the fee notes were created for the dominant purpose of legal advice or litigation. Consequently, the question of waiver did not arise, as the primary requirement for privilege had not been met.