There is no legal professional privilege for those whose documents are stolen and released into the public domain

Glencore International AG v Commissioner of Taxation [2019] HCA (‘Glencore’) raises the issue of whether a claim of legal professional privilege can itself amount to an equitable cause of action.

Facts

In Glencore, the plaintiffs (‘the Glencore group’) sought an injunction to restrain the defendants from using ‘the Glencore documents’ and any information contained in, or derived from, those documents. Glencore group also sought the delivery up of the documents from the Australian Taxation Office.

The Glencore documents were created solely for the purpose of the provision of legal advice to the Glencore group about the corporate restructuring of its Australian entities. The documents were stolen from their lawyers’ electronic file management systems and were released into the public domain, thereby coming to the ATO’s attention.

The Glencore Group’s Submissions

In pushing an injunction, the Glencore group sought to argue that legal professional privilege was an actionable legal right. It submitted that the description of legal professional privilege in Daniels Corporation International Pty Ltd v Australian Competition and Consumer Commission (‘Daniels Corporation‘)[1] did not narrow the scope so that it merely operated as immunity, but rather, as a legal right capable of enforcement.[2] They argued there was a gap in the law if injunctions were only granted when documents were confidential rather than privileged.

The Glencore group argued the scope of the legal professional privilege should be extended as it promoted the policy of public interest by upholding the “administration of justice through fostering of trust and candour in the relationship between lawyer and client.”[3] It contended that public interest policy could justify the establishment of actionable legal right.

The High Court’s Decision and Reasoning

In a unanimous decision, the High Court held that legal professional privilege is not an actionable legal right and therefore does not support the granting of an injunction. Justice Gummow’s description of legal professional privilege in Commissioner of Australian Federal Police v Propend Finance Pty Ltd[4] was upheld, namely that privilege should not be characterised as a rule of law conferring individual rights which gives rise to a cause of action. The privilege was held to be only an immunity from, not an actionable right to stop, the exercise of powers that would compel the disclosure of privileged information.[5]

Legal professional privilege promotes the public interest because it protects confidential communications exchanged between lawyers and their clients.[6] However, this public interest must be balanced against another more general public interest, which promotes the “fair conduct of litigation, which requires all relevant documentary evidence be available.”[7]

When privileged communications are disclosed (i.e. released into the public domain) resort must be had to equity for protection regarding the use of that privileged material.[8] For an action to be brought in equity’s jurisdiction, the privileged materials must be confidential.[9] The Glencore group did not seek injunctive relief on the grounds that its privileged material was confidential, therefore the Court could not provide the remedy sought.[10]

Conclusion

The decision in Glencore clarifies that legal professional privilege is not in itself a cause of action that warrants the granting of an injunction. Legally privileged information must be confidential to ensure injunctive relief. While the Glencore documents were presumably confidential, the Glencore group did not appear to put such an argument before the High Court.

With software, data and privacy breaches becoming more prevalent within professional industries, there is an increasing need to ensure confidential information remains protected. Injunctive relief may be available where confidential legally privileged information is leaked within the public domain but cannot be sought on the basis of legal professional privilege alone.

Joanne Rennick – Managing Partner, MurphySchmidt Solicitors

Georgia Morrison – Research Cadet, MurphySchmidt Solicitors