The topic of legal professional privilege and In House counsel, has since been revisited in 2007, by Telstra Corporation Limited v Minister for Communications, Information Technology and the Arts
In this case, there was litigation brought by Telstra against the Minister. As part of a preliminary discovery process, the Minister sought access to certain Telstra documents the subject of its Notice to Produce. Telstra claimed the documents were privileged on the basis that either the author or recipient of the claimed documents
was an internal legal adviser to Telstra and the documents and communications were made for the purpose of providing legal advice.

Findings

Justice Graham held that Telstra had not done enough to satisfy the Court that the documents were privileged and ordered full disclosure of the documents. He noted there was no evidence before the Court going to the independence of the internal legal advisers involved in the communications and it was not enough for
Telstra to simply state that the documents were privileged. His Honour however, did note that it has been accepted that in some circumstances legal advice may be accompanied by advice of another kind which can be separated from it. In such circumstances, only the legal advice will be privileged. However, if the legal advice contains extraneous matter which cannot be separated from it, the legal advice will not lose its privilege for that reason.

Telstra Corp is another example in a string of recent cases in which the Courts have emphasised the importance of adducing sufficient evidence to properly make out claims for legal professional privilege, particularly where in-house counsel are involved, including Sydney Airports Corporation Ltd v Singapore Airlines Ltd & Qantas Airways Ltd and Seven Network Ltd v News Ltd.

Conclusion

The tests are:

• Independence of the advice;
• Separation of the advice from other corporate functions;
• Capacity of the advice (whether or not made by a lawyer and whilst performing as a lawyer – usually indicatedby possession of a practicing certificate);
• Dominant purpose of the advice – as legal adviser, or corporate manager?