Waterhouse v Minister for the Arts and Territories

The case involved Waterhouse, who brought an application against the Minister for the Arts and Territories, seeking the return of documents withheld from him by the Australian Federal Police. The central issue was whether legal professional privilege applied to certain entries in a running sheet used by the Australian Federal Police to record legal advice provided by the Director of Public Prosecutions (DPP). Waterhouse argued that the privilege was limited to the advice itself and that the entries in the running sheet could be separated from the privileged advice. The respondents contended that the entire document was privileged, including the running sheet entries, as they were integral to the provision of legal advice.

The court had to determine whether the running sheet entries were incidental or conducive to the DPP's functions, and therefore privileged, or if they could be severed from the privileged advice. The court examined the sole purpose test, which requires that the document in question must have been created solely for the dominant purpose of obtaining or giving legal advice. The court found that the running sheet entries were not incidental or conducive to the DPP's functions and that they could be severed from the privileged advice. The entries were not created for the sole purpose of obtaining or giving legal advice but rather for administrative purposes.

The court dismissed Waterhouse's application, holding that the running sheet entries were privileged and could not be separated from the advice. The court held that the entries were created as part of the process of providing legal advice and were therefore privileged. The court also held that the sole purpose test was satisfied, as the dominant purpose of the running sheet entries was to record the legal advice provided. The court ordered that Waterhouse's motion on notice be dismissed and that Waterhouse pay the respondents' costs, including reserved costs.