Legal Professional Privilege – a swashbuckling sword or shield?
On 14 August 2019, the High Court of Australia handed down its decision in Glencore International AG & Ors v Commissioner of Taxation for the Commonwealth of Australia & Ors  HCA 26. The decision concerned whether the Glencore group of companies (Glencore) could obtain an injunction restraining the Australian Taxation Office (ATO) from using certain documents (Glencore documents) on the grounds of legal professional privilege.
The Glencore documents were amongst documents known as the “Paradise Papers”, which were hacked from a Bermuda law firm Appleby (Bermuda) Limited (Appleby) and then leaked to the International Consortium of Investigative Journalists. The documents contained details relating to offshore investments by numerous multi-national companies and over 120,000 people and companies.
The ATO had obtained copies of the Glencore documents, and Glencore asked the ATO to return them as they were subject to legal professional privilege. Glencore further asked the ATO to provide an undertaking that the documents would not be referred to or relied upon.
The ATO did not accept those requests, and argued that that no cause of action was disclosed by which Glencore was entitled to the relief sought. The ATO also contended that they were entitled, and obliged, to retain and use the documents under section 166 of the Income Tax Assessment Act 1936 (Cth).
Glencore submitted that the scope of legal professional privilege should not only exist as an immunity from disclosure, but that it should also extend to an actionable legal right. That is, a sword to bring about a cause of action for equitable relief by way of an injunction, as well as a shield.
High Court decision
It was uncontentious that the Glencore documents were subject to legal professional privilege. The High Court confirmed that legally privileged documents are exempt from production. This did not assist here, though, as the Glencore documents were already in the possession of the ATO.
The High Court also confirmed that the authorities support the granting of an injunction where privileged documents come into the possession of another person to protect their confidential nature; however, the Glencore documents were already in the public domain.
The High Court unanimously dismissed Glencore’s claim held that that legal professional privilege is only an immunity that precludes the disclosure of privileged communications; it cannot be transformed into a legal cause of action that is capable of being enforced.
Given the determination that there was no cause of action to support the grant of the injunction, the High Court did not determine the second question as to whether the ATO could use the Glencore documents in the assessment of the taxpayers’ returns.
ATO was therefore not required to hand back the Glencore documents; however, the High Court stated that it was not possible to say whether Glencore was without remedy.
A party is immune from producing legally privileged documents. Once privileged documents have been disclosed, an injunction could be sought in equity to protect their confidential nature; however equity will not assist if the documents are already in the public domain.
This decision supports the proposition that legal professional privilege in itself does not give rise to a cause of action for the grant of equitable relief. This is particularly relevant where, for example where there has been a data breach, the privileged documents are already in the public domain.
The ATO has indicated that it will therefore continue to use information in its possession including information from data leaks in assessing a taxpayer’s taxable income.