- In the recent case of Glencore v Commissioner of Taxation  HCA 26, the High Court firmly rejected the contention that legal professional privilege is something more than a privilege, such as an actionable legal right capable of sounding in injunctive relief.
- It is the long-standing policy of the law that the public interest in the administration of justice is sufficiently secured by the grant of an immunity from disclosure and nothing more.
Swiss multinationals, a mining giant, Bermuda tax structuring advice, ‘Paradise Papers’, data leak, tax officials … this case had it all. Or did it? In the much anticipated decision in Glencore International AG & Ors v Commissioner of Taxation of the Commonwealth of Australia & Ors  HCA 26 , the High Court of Australia unanimously dismissed Glencore’s bold albeit novel attempt to extend the operation of legal professional privilege (‘LPP‘) into an actionable legal right sufficient to grant injunctive relief against tax regulators.
Confronting the Court in its original jurisdiction was a demurrer posing the controversial issue of whether LPP operates merely defensively to resist compulsory production, or, whether it is something more. Namely, does LPP provide a positive right, entitling the privilege holder to claim a remedy, specifically, an injunction restraining the use of the privileged material? Could LPP be the proverbial padlock to secure Pandora’s Box once and for all?
The papers at the heart of the controversy were the ‘Glencore Documents’. Ironically, for a case solely about LPP, their contents are well known; and universally so. They comprised legal advice (in particular, tax advice) to Glencore, a mining behemoth, concerning a corporate restructure. The advice was from Appleby, a Bermuda based law firm.
Following a colossal data breach in 2016, the Glencore Documents, along with more than 13 million others, known as ‘the Paradise Papers’, were disseminated globally. The event captured international media coverage. The event also captured the attention of regulators, including Australian taxation authorities who then obtained the Glencore Documents. Glencore asked the Australian Taxation Office to return the Glencore Documents and for an undertaking that they would not be referred to or relied upon. The defendants (the Commissioner, the Second Commissioner and the Deputy Commissioner of Taxation – and any other officer of the Australian Taxation Office) did not accede to Glencore’s requests. This catalysed the litigation.
There was no dispute that the Glencore Documents attracted LPP. Plainly, the documents were created for the sole or dominant purpose of legal advice. But a declaration to that effect would not assist Glencore. The defendants already possessed the Glencore Documents and statutory powers permitted their use unless Glencore could identify a juridical basis to restrain that use. That the documents were already in the public domain also put out of reach any application to restrain an apprehended breach of confidential information which would ordinarily be the juridical basis for relief in equity.
The question was therefore about preventing continuing access to and use of the Glencore Documents. Could the LPP attached to the Glencore Documents be used to prevent the defendants using the documents in circumstances where they were already in their possession, albeit, not with Glencore’s consent? The legal edifice supporting the argument was creative, albeit unsuccessful. Glencore framed its case by way of injunctive relief. It sought to (ambitiously) restrain the defendants from using the Glencore Documents whatsoever.