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Snapshot

  • A recent Federal Court decision reaffirms and elucidates the foundations of legal professional privilege and joint privilege, particularly in the in-house context.
  • The dominant purpose benchmark is often not met in corporate environments where legal communications are frequently blended with strategic and operational communications.
  • This article refreshes the fundamentals and offers actionable strategies for in-house counsel looking to preserve privilege and mitigate discovery risks.

The recent Federal Court decision of SMBC Leasing and Finance, Inc v Flexirent Capital Pty Ltd (Discovery) [2025] FCA 459 (‘SMBC Leasing and Finance’) clearly outlines the core principles of client legal privilege or legal professional privilege (‘LPP’) and joint privilege. For in-house counsel, preserving LPP is essential not just for managing legal risk, but also as a safeguard in litigated matters. SMBC Leasing and Finance gives food for thought as to practical strategies for in-house legal teams.

In SMBC Leasing and Finance, SMBC brought an application contesting claims for LPP or joint privilege by Flexirent over a number of documents that were otherwise discoverable. As well as providing clear guidance as to when LPP and joint privilege arises, the decision is also interesting for its conclusion as to the evidence suitable to support the privilege claims, which is discussed in further detail here.

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