Glencore – High Court of Australia finds the Australian Taxation Office was entitled to use privileged documents included in the Paradise Papers leak

Glencore companies sought an injunction restraining the Australian Taxation Office from making any use of privileged documents that had been prepared for Appleby in Bermuda to provide legal advice on the Glencore inbound structure and which had ended up in the ATO’s hands as a result of their inclusion in the Paradise Papers.

Before denying any relief on the basis that the privilege could not found a cause of action, and instead was merely “an immunity from the exercise of powers which would otherwise compel the disclosure of privileged communications,” the unanimous Court stated:

[T]he rule promotes the public interest because it "assists and enhances the administration of justice by facilitating the representation of clients by legal advisers". By keeping secret their communications, the client is encouraged to retain a lawyer and to make full and frank disclosure of all relevant circumstances to the lawyer.

After referencing the “more general, public interest … in the fair conduct of litigation, which requires that all relevant documentary evidence be available,” the Court further stated:

In striking the balance between the two competing public interests, the law was not concerned to further a client's personal interest in preventing the use which might be made by others of the client's communications if they obtained them. …

It is the policy of the law that the public interest in the administration of justice is sufficiently secured by the grant of an immunity from disclosure.

Given somewhat more strident statements in Canada of the protection accorded by the privilege under the Charter (e.g., in Chambre des notaires, at para. 28), the same result might not have obtained in Canada.

Neal Armstrong. Summary of Glencore International AG v Commissioner of Taxation, [2019] HCA 26 under s. 232(1) – solicitor-client privilege.