Legal professional privilege (sometimes referred to as “client legal privilege”) is a common law doctrine recognized in Australia that permits the holder of the privilege to prevent the disclosure of documents or communications to which the privilege attaches. The Evidence Act 1995 (Cth) and equivalent legislation in certain Australian states and territories protects privileged documents or communications from being adduced as evidence in court.

There are two types of legal professional privilege recognized in Australia.

Advice privilege protects: (i) confidential communications passing between a client and a lawyer, or two or more lawyers acting for the client; or (ii) the contents of a confidential document prepared by the client, lawyer or another person, where the communication was made or the document was prepared for the dominant purpose of the lawyer or lawyers providing legal advice to the client.

Litigation privilege protects: (i) confidential communications passing between a client and another person, or a lawyer acting for the client and another person; or (ii) the contents of a confidential document, where the communication was made or the document was prepared for the dominant purpose of providing the client with professional legal services in relation to an actual or anticipated Australian or overseas proceeding in which the client is, may be, was or might have been a party.

Both types of privilege can protect a confidential document prepared by a client or another person even if it was not in fact delivered to the lawyer, as long as the document was prepared for the dominant purpose of obtaining legal advice or services.

The “dominant purpose” must be the clear paramount purpose, but need not be the only purpose for which the document was prepared. The onus of establishing the dominant purpose is on the party who asserts the privilege. A heading such as “Privileged & Confidential” can be helpful, but will not be determinative. In the case of a corporation, the dominant purpose is that of the company and not that of the employee who instructed the preparation of the communication. Board minutes are the best record of corporate intention.