Santos Limited v Markos; Diemould Tooling Services Pty Ltd v Oaten

The High Court of Australia considered appeals from decisions of the Full Court of the Supreme Court of South Australia in two separate matters, *Santos Limited v Markos* and *Diemould Tooling Services Pty Ltd v Oaten*. Both appeals concerned the interpretation and application of section 131 of the *Evidence Act 1929* (SA), which provides for the protection of confidential communications between a client and their legal practitioner. The central dispute in both cases revolved around whether the privilege afforded by section 131 extended to communications made for the purpose of obtaining advice on the commission of a future crime or fraud.

The High Court was required to determine whether the privilege against disclosure of confidential communications between a client and legal practitioner, as codified in section 131 of the *Evidence Act 1929* (SA), is defeated by the fact that the communication was made for the purpose of obtaining advice on the commission of a future crime or fraud. This question necessitated an examination of the common law principles underlying legal professional privilege and how they are reflected or modified by the statutory provision.

The Court held that the privilege established by section 131 of the *Evidence Act 1929* (SA) does not extend to communications made for the purpose of obtaining advice on the commission of a future crime or fraud. French CJ and Hayne J, in separate judgments, affirmed that the common law exception to legal professional privilege, which denies protection to communications made in furtherance of a criminal or fraudulent purpose, remains applicable despite the statutory codification. They reasoned that the purpose of the privilege is to facilitate the administration of justice by enabling clients to obtain candid legal advice, and this purpose is not served when the advice sought is to facilitate unlawful conduct. The Court noted that the statutory language of section 131 did not suggest an intention to abrogate this well-established common law exception.

The appeals were allowed, and the orders of the Full Court of the Supreme Court of South Australia were set aside. The matters were remitted to the Supreme Court for further proceedings consistent with the High Court's judgment.