Legal Professional Privilege Practice : Beyond The Dominant Purpose Test

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Legal professional privilege in practice – beyond the dominant purpose test

Introduction

A common law right

• Legal professional privilege, or LPP, is a rule of law. The rule of law underpins the way our society is governed. Everyone is bound by and entitled to the benefit of laws.
• LPP is a common law right that protects certain documents and communications from disclosure.
• LPP has existed since Elizabethan times (around 1558–1603), although its derivation and nature altered during the 18th century.

What is legal professional privilege?

• Generally, when someone refers to LPP, what comes to mind is that LPP protects the confidentiality of communications between a client and their lawyer.
• At common law, it is generally recognised that LPP has two limbs: o advice privilege; and o litigation privilege.
• At statutory law, the same two limbs apply.
• Regarding the two limbs, Allsop J has said “…privilege is to be seen as a fundamental common law right in relation to legal advice and litigation. The purpose and rationale of the privilege is to enable persons in a civilised complex modern society to be able to conduct their affairs with the assistance of legal advice. Expressed thus, it is a fundamental right conforming to and underpinning the rule of law.” (Kennedy v Wallace [2004] FCAFC 337)
• The common law of privilege concerning confidential communications passing between a client and their lawyer is now largely absorbed by and reflected in Australian…

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