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Section 32 - Documents affecting legal proceedings

Guidelines

Overview

1.1

Section 32(1) exempts documents subject to legal professional privilege or client legal privilege. The principles of LPP are found in common law (judge made law). Client legal privilege is codified in sections 118 and 119 of the Evidence Act 2008 (Vic) (Evidence Act).

1.2

To apply section 32(1), it is generally not necessary to distinguish between legal professional privilege and client legal privilege.1 For the FOI Guidelines, the term ‘legal privilege’ is used to refer to both.

1.3

Both legal professional privilege and client legal privilege cover confidential communications:

  • providing legal advice (advice privilege); and
  • prepared for current or anticipated litigation or court proceedings (litigation privilege).2
1.4

The purpose of legal privilege is to promote the public interest in the proper conduct of litigation. It does this by protecting confidential communications between a lawyer and their client, to allow them to speak freely.3

1.5

To apply section 32(1), an agency or Minister must establish the elements of either advice privilege or litigation privilege. An agency or Minister should be clear about whether advice privilege or litigation privilege is relied on, and ensure each element is met. See the ‘advice privilege’ and ‘litigation privilege’ headings below for information about the elements of each stream of legal privilege.

1.6

Section 32(1) must be read consistently with the object of the Act in section 3, which is to extend as far as possible the right of the community to access government held information.

1.7

If a document contains distinct parts that are legally privileged and distinct parts that are non-privileged, it is only the privileged material that is exempt under section 32(1).4 The non-exempt information should be provided to the applicant provided it is practicable to provide an edited copy of the document.5

Discretion to disclose exempt documents

1.8

The decision to exempt a document under section 32(1) is discretionary.11 However, it is important to remember that the privilege belongs to the client and so it is only the client who can decide to waive the privilege.

1.9

An agency or Minister can choose to provide access to information that would otherwise be exempt under section 32(1), where it is proper to do so and where the agency or Minister is not legally prevented from providing access.

1.10

An agency should consider whether choosing to release privileged information is a loss or waiver of legal privilege. See the ‘Has there been a loss or waiver of privilege?’ heading below for more information.

What is advice privilege?

1.11

A document or information attracts advice privilege, and is exempt under section 32(1), if it would disclose:

  • a confidential communication between a client (or their agent) and their lawyer that was made for the dominant purpose of obtaining or providing legal advice; or
  • a confidential communication between two or more lawyers acting for their client that was made for the dominant purpose of obtaining or providing legal advice; or
  • the contents of a confidential document (whether delivered or not) prepared by a client, their lawyer, or another person for the dominant purpose of obtaining or providing legal advice.

Steps to applying advice privilege

1.12

An agency or Minister seeking to establish that a document is exempt under section 32(1) because it attracts advice privilege should:

  1. Identify the exempt communication or document, then identify the parties that created, sent, and received it.
  2. Based on the identified parties, establish if:
    • a communication occurred between a client (or their agent) and their lawyer; or
    • a communication occurred between two or more lawyers acting for a client; or
    • a document was prepared by the client, their lawyer or another person.
  3. Establish that the ‘dominant purpose’ for the communication being made or the document’s creation was for obtaining or providing legal advice.
  4. Establish that the communication or document was intended to be, and remains, confidential.
  5. Ensure the privilege has not been waived by either the express or implied conduct of the client.
  6. If the exemption is made out, consider whether to exercise the discretion in section 16(2) to provide access to the information or document despite the exemption applying.

What is litigation privilege?

1.13

A document or information will attract litigation privilege, and is exempt under section 32(1), if it would disclose:

  • a confidential communication between a client (or their agent) and their lawyer, a client (or their agent) and another person, or between a lawyer acting for the client and another person; or
  • the contents of a confidential document (whether delivered or not);

made or prepared for the dominant purpose of the client being provided with legal services about a current, anticipated or pending legal proceeding, where the client is or may be a party.

1.14

For a legal proceeding to be ‘anticipated or pending’, there must be more than a mere possibility of litigation. There must be a real prospect of litigation, but it does not have to be more likely than not.13

Steps to applying litigation privilege

1.15

An agency or Minister seeking to establish that a document is exempt under section 32(1) because it attracts litigation privilege should:

  1. Identify the exempt communication or document, then identify the parties that created or received it.
  2. Establish one of the following:
    • the communication occurred between the client and another person; or
    • the communication occurred between a lawyer acting for the client and another person; or
    • the document was prepared for the client.
  3. Establish that the ‘dominant purpose’ for the communication or document is in relation to current, anticipated or pending litigation involving the client.
  4. Establish that the communication or document was intended to be, and remains, confidential.
  5. Ensure the privilege has not been waived by either express or implied conduct of the client.
  6. If the exemption is made out, consider whether to exercise the discretion in section 16(2) to provide access to the information or document despite the exemption applying.

Considering the elements in applying the exemption

Who is the client?

1.16

The definition in section 117 of the Evidence Act provides guidance on who is a ‘Client’. The word ‘Client’ is not defined in case law.

1.17

Section 117 of the Evidence Act defines ‘Client’ as including:

  • a person or body who engages a lawyer to provide legal services or who employs a lawyer
    (including under a contract of service);
  • an employee or agent of a client; or
  • an employer of a lawyer if the employer is:
    • the Commonwealth or a State or Territory; or
    • a body established by a law of the Commonwealth or a State or Territory.

Who is the lawyer?

1.18

The definition in section 117 of the Evidence Act and case law provides guidance on who is a ‘Lawyer’.

1.19

Section 117 of the Evidence Act defines a ‘Lawyer’ as:

  • an Australian lawyer (as defined under the Legal Profession Uniform Law Application Act); and
  • a non-participant registered foreign lawyer; and
  • a foreign lawyer or a natural person who, under the law of a foreign country, is permitted to engage in legal practice in that country; and
  • an employee or agent of a lawyer referred to above.
1.20

Under case law, a ‘Lawyer’ includes:

  • a sole practitioner;
  • a barrister, also known as counsel;15
  • an interstate or foreign practitioner;16
  • a patent attorney;17
  • a solicitor or legal officer who is in government employment or employed by a government agency (see below for more information);18
  • a solicitor who is also a trustee;19
  • a solicitor acting for two parties;
  • a solicitor acting for one party and for another person who has a common interest in the litigation but is not a party to the litigation. This is known as common interest privilege;20 and
  • an ‘in-house’ or corporate lawyer (see below for more information).21
1.21

For legal privilege to apply, there must be a lawyer/client relationship.22 Where there is a dual role, it is important to consider whether the communications or documents relate to the lawyer’s legal role or other role (for example, financial services).

1.22

Legal privilege can apply to advice from in-house salaried lawyers.23 An in-house lawyer must possess the requisite measure of independence for legal professional privilege to attach.24 This means the communications must be in confidence and given as professional advice in a lawyer/client relationship.25

1.23

The relationship between the State and Parliamentary Counsel may be one of client and lawyer if advice is sought from and given by Parliamentary Counsel to the State in relation to the drafting and preparation of draft legislation.26

Is there a confidential communication?

1.24

The definition in section 117 of the Evidence Act provides guidance on what is a ‘confidential communication’. It defines a ‘confidential communication’ as a communication made in such circumstances that, when it was made:

  • the person who made it; or
  • the person to whom it was made,

was under an express or implied obligation not to disclose its contents, whether or not the obligation arises under law.

Is there a confidential document?

1.25

The definition in section 117 of the Evidence Act provides guidance on what is a ‘confidential document’. It defines a ‘confidential document’ as a document where, when it was prepared:

  • the person who prepared it; or
  • the person for whom it was prepared,

was under an express or implied obligation not to disclose its contents.

What was the dominant purpose of the communication?

1.26

Identifying the ‘dominant purpose’ of a communication is an objective test determined by looking at the primary or substantial reason for the communication.39

1.27

The starting point is to identify the intended use or uses of the document when it was brought into existence.40 Where there are mixed purposes, the dominant purpose is the primary or substantial reason for the communication.

1.28

The purpose (why) a document is brought into existence is a question of fact. The intention of the document’s author does not decide its purpose. For example, if a solicitor commissions the provision of a technical report, the relevant intention will be of the solicitor, not the author of the technical report.41

1.29

The dominant purpose test will extend to documents prepared by an agency or Minister that record the legal advice or summary of advice given.42

Key concepts about legal advice and dominant purpose

1.30

Legal advice is broadly defined. It includes advice about what a client should do in the legal context, but it does not extend to advice that is purely commercial or of a public relations character.49

1.31

A communication from a lawyer to a client that contains observations on administrative or policy matters may still attract legal privilege, so long as the dominant purpose of the communication is to provide legal advice or legal services.50

1.32

Legal privilege can extend to a document prepared by a client which records legal advice given to the client by their lawyer.51 However, a document prepared by a client expressing their own opinions on legal and commercial considerations, following receipt of legal advice, will not be privileged.52

1.33

For documents prepared by a client that record legal advice received, the dominant purpose test is applied to the original communication from the lawyer to the client, not to the separate document created by the client.53

Has there been a loss or waiver of privilege?

1.34

A document will not be exempt under section 32(1) if legal privilege has been lost or waived.

1.35

Privilege can be either expressly waived, or waiver can be implied from the circumstances.

1.36

Legal privilege can be lost or ‘waived’ where the client acts inconsistently with the confidentiality of legal privilege.59

1.37

Whether a client has acted inconsistently with the confidentiality of legal privilege is determined objectively. This means that a decision maker may determine that waiver is implied, notwithstanding that the subjective intention of the client was to maintain privilege.61

1.38

Waiver of privilege by express words or conduct will generally be clear.

1.39

Implied waiver is more difficult to determine. Waiver can be implied where a client acts inconsistently with the confidentiality required for legal privilege. Waiver can also be unintended.

1.40

The fine balance in implied waiver is demonstrated in Mann v Carnell63where the High Court found disclosure of the substance of the legal advice for the purposes of explaining and justifying the actions of a member of Parliament did not waive legal privilege, but disclosure of the substance of the legal advice to further the client’s own personal or commercial interests did waive legal privilege.

1.41

Legal privilege will not attach to confidential communications between a lawyer and client that are used by the client for the purpose of furthering or facilitating criminal, fraudulent or other misconduct that carries a civil penalty.64 To lose the privilege, there must be evidence of the confidential communication furthering or facilitating the client’s illegal or improper purpose. The privilege cannot be displaced by mere allegation of illegal or improper conduct.65

Examples of privileged documents

1.42

Legal privilege protects the disclosure of:

  • communications between a client and their lawyer for the dominant purpose of requesting and providing legal advice, or for the dominant purpose of receiving legal services in relation to current or anticipated legal proceedings – for example, emails and letters;73
  • documents that record legal work carried out by the lawyer for the benefit of the client, for the dominant purpose of providing advice or in reference to current or anticipated litigation – for example, legal advice, file notes, research memoranda, collations and summaries of documents and chronologies, whether provided to the client or not;74
  • documents prepared by officers or employees of the client, for the dominant purpose of helping the client’s lawyer give advice to the client – for example, chronologies that set out relevant facts and evidence;75
  • documents gathered by the lawyer or client in preparation for litigation even if there is no communication between lawyer and client – for example, draft witness statements and transcripts of interviews with witnesses;76 and
  • draft documents or comments made on a draft document by a lawyer. In this situation, the lawyer is providing advice when preparing, reviewing, or making comments on a draft document in which they are the legal adviser – for example, draft correspondence containing marked up comments from the client’s lawyer.77

Privileged copies

1.43

When copies of documents are attached to a request for legal advice, those attachments will be subject to privilege if the dominant purpose for which the copies were created was to seek legal advice. This is the case even if the original documents were not privileged.83

1.44

The original documents (as opposed to the copies attached to a request for legal advice) are not exempt under section 32(1) and may still be disclosed under the Act if they are not otherwise exempt.

Material unlikely to be privileged

1.45

Common examples of communications that do not ordinarily attract legal privilege include:

  • invoices merely showing the cost and not the substance of legal advice provided to an agency. In some instances, invoices can be edited to remove the detail of the services provided so that any privileged information is removed;85
  • a letter from a client’s lawyer to another person, who is not the client or agent;
  • witness statements or other investigative material, created for an agency’s routine administrative purposes, irrespective of possible future legal proceedings;86
  • information that merely describes the topic that is the subject of legal advice, but does not disclose the advice itself;87
  • documents to or from an agency’s lawyer that do not involve a request for legal advice or the response;88 and
  • documents involving an agency’s lawyer that are of an administrative nature.89

Certain section 8(1) documents are not exempt – section 32(2)

1.46

Section 8(1) lists certain categories of documents that must be available for inspection and purchase by the agency. Documents that must be made available for inspection and purchase under section 8(1) are not exempt under section 32(1).

1.47

This includes the following kinds of documents used by the agency in making decisions or recommendations:

  • manuals;
  • policies and procedures;
  • records of decisions;
  • letters of advice to persons outside the agency;
  • guidance material;
  • precedents; and
  • documents containing interpretations or excerpts of legislative schemes administered by the agency.
1.48

The purpose of section 32(2) is to ensure that the public has access to any legal advice that is contained in a section 8(1) document used by the agency in making decisions or recommendations, such as a policy or procedure.95

  1. This approach is also adopted by the Victorian Civil and Administrative Tribunal. See for example, Coulson v Department of Premier and Cabinet [2018] VCAT 229.
  2. See Esso Australia Resources Ltd v Federal Commissioner of Taxation [1999] HCA 67 and Daniels Corporation International Pty Ltd v Australian Competition and Consumer Commission [2002] HCA 49.
  3. Grant v Downs [1976] HCA 63 [19].
  4. Birrell v Department of State & Regional Development [2001] VCAT 50 [12] citing Waterford v. Commonwealth [1987] HCA 25 [11] per Deane J.
  5. In accordance with section 25.
  6. This approach is also adopted by the Victorian Civil and Administrative Tribunal. See for example, Coulson v Department of Premier and Cabinet [2018] VCAT 229.
  7. See Esso Australia Resources Ltd v Federal Commissioner of Taxation [1999] HCA 67 and Daniels Corporation International Pty Ltd v Australian Competition and Consumer Commission [2002] HCA 49.
  8. Grant v Downs [1976] HCA 63 [19].
  9. Birrell v Department of State & Regional Development [2001] VCAT 50 [12] citing Waterford v. Commonwealth [1987] HCA 25 [11] per Deane J.
  10. In accordance with section 25.
  11. Smith v Victoria Police [2005] VCAT 654, [60].
  12. Smith v Victoria Police [2005] VCAT 654, [60].
  13. Mitsubishi Electric Australia Pty Ltd v Victorian Workcover Authority [2002] VSCA 59.
  14. Mitsubishi Electric Australia Pty Ltd v Victorian Workcover Authority [2002] VSCA 59.
  15. Mayor and Corporation of Bristol v Cox (1884) 26 Ch D 678.
  16. Ritz Hotels Ltd v Charles of the Ritz Ltd (No 4) (1987) 14 NSWLR 100; Kennedy v Wallace (2004) 213 ALR 108.
  17. Sepa Waste Water Treatment Pty Ltd v JMT Welding Pty Ltd (1986) 6 NSWLR 41, [43]; Pfizer Pty Ltd v Warner Lambert Pty Ltd (1989) 89 ALR 625.
  18. Waterford v The Commonwealth [1987] HCA 25 [4] (per Mason and Wilson JJ), [5]-[6] (per Brennan J).
  19. O’Rourke v Darbishire [1920] AC 581.
  20. Bulk Materials (Coal Handling) Services Pty Ltd v Coal & Allied Operations Pty Ltd (2988) 13 NSWLR 689. See reference made to this privilege in Martin v Melbourne Health (Review and Regulation) [2019] VCAT 1190 [40].
  21. Ritz Hotels Ltd v Charles of the Ritz Ltd (No 4) (1987) 14 NSWLR 100.
  22. Young v State Insurance Office (1986) 1 VAR 267.
  23. Crozier v Department of Health [2022] VCAT 1301 [33], following Attorney General (NT) v Kearney [1985] HCA 60.
  24. The criterion of independence will be satisfied if it is shown that the in-house lawyer’s personal loyalties, duties and interests do not influence the advice given: Seven Network Ltd v News Ltd [2005] FCA 1551 [15].
  25. Waterford v The Commonwealth [1987] HCA 25 [4] (per Mason and Wilson JJ), [5]-[6] (per Brennan J).
  26. Tran v Office of the Chief Parliamentary Counsel [2022] VCAT 61 [45]-[50] following State of New South Wales v Betfair Pty Ltd [2009] FCAFC 160 and Tabcorp Holdings Limited v State of Victoria (No 2) [2013] VSC 541.
  27. Mayor and Corporation of Bristol v Cox (1884) 26 Ch D 678.
  28. Ritz Hotels Ltd v Charles of the Ritz Ltd (No 4) (1987) 14 NSWLR 100; Kennedy v Wallace (2004) 213 ALR 108.
  29. Sepa Waste Water Treatment Pty Ltd v JMT Welding Pty Ltd (1986) 6 NSWLR 41, [43]; Pfizer Pty Ltd v Warner Lambert Pty Ltd (1989) 89 ALR 625.
  30. Waterford v The Commonwealth [1987] HCA 25 [4] (per Mason and Wilson JJ), [5]-[6] (per Brennan J).
  31. O’Rourke v Darbishire [1920] AC 581.
  32. Bulk Materials (Coal Handling) Services Pty Ltd v Coal & Allied Operations Pty Ltd (2988) 13 NSWLR 689. See reference made to this privilege in Martin v Melbourne Health (Review and Regulation) [2019] VCAT 1190 [40].
  33. Ritz Hotels Ltd v Charles of the Ritz Ltd (No 4) (1987) 14 NSWLR 100.
  34. Young v State Insurance Office (1986) 1 VAR 267.
  35. Crozier v Department of Health [2022] VCAT 1301 [33], following Attorney General (NT) v Kearney [1985] HCA 60.
  36. The criterion of independence will be satisfied if it is shown that the in-house lawyer’s personal loyalties, duties and interests do not influence the advice given: Seven Network Ltd v News Ltd [2005] FCA 1551 [15].
  37. Waterford v The Commonwealth [1987] HCA 25 [4] (per Mason and Wilson JJ), [5]-[6] (per Brennan J).
  38. Tran v Office of the Chief Parliamentary Counsel [2022] VCAT 61 [45]-[50] following State of New South Wales v Betfair Pty Ltd [2009] FCAFC 160 and Tabcorp Holdings Limited v State of Victoria (No 2) [2013] VSC 541.
  39. Esso Australia Resources Ltd v Federal Commissioner of Taxation [1999] HCA 67.
  40. AWB Limited v Honourable Terence Rhoderic Hudson Cole (No 5) [2006] FCA 1234 [44(6)].
  41. Mitsubishi Electric Australia Pty Ltd v Victorian Workcover Authority [2002] VSCA 59.
  42. Standard Chartered Bank of Australia Ltd v Antico (1995) 36 NSWLR 57 [91]-[93].
  43. Esso Australia Resources Ltd v Federal Commissioner of Taxation [1999] HCA 67.
  44. AWB Limited v Honourable Terence Rhoderic Hudson Cole (No 5) [2006] FCA 1234 [44(6)].
  45. Mitsubishi Electric Australia Pty Ltd v Victorian Workcover Authority [2002] VSCA 59.
  46. Standard Chartered Bank of Australia Ltd v Antico (1995) 36 NSWLR 57 [91]-[93].
  47. For a similar example, see Ormonde v Darebin City Council [2008] VCAT 588 [85].
  48. For a similar example, see Ormonde v Darebin City Council [2008] VCAT 588 [85].
  49. AWB Limited v Honourable Terence Rhoderic Hudson Cole (No 5) [2006] FCA 1234 [44].
  50. AIN and Medical Council of NSW [2013] NSWADT 112 [72]. 
  51. Conyers v Monash University [2005] VCAT 2509 [7] citing Standard Chartered Bank of Australia v Antico (1993) 36 NSWLR 87, 92-93; Country Fire Authority v Lockyer [2019] VCAT 667 [62].
  52. Price v Castlemaine District Community Health Centre [2001] VCAT 1974 [15]-[16] citing Standard Chartered Bank of Australia v Antico (1993) 36 NSWLR 87, 92-93.
  53. Price v Castlemaine District Community Health Centre [2001] VCAT 1974 [15], citing Standard Chartered Bank of Australia Ltd v Antico (1995) 36 NSWLR 87, 91.
  54. AWB Limited v Honourable Terence Rhoderic Hudson Cole (No 5) [2006] FCA 1234 [44].
  55. AIN and Medical Council of NSW [2013] NSWADT 112 [72]. 
  56. Conyers v Monash University [2005] VCAT 2509 [7] citing Standard Chartered Bank of Australia v Antico (1993) 36 NSWLR 87, 92-93; Country Fire Authority v Lockyer [2019] VCAT 667 [62].
  57. Price v Castlemaine District Community Health Centre [2001] VCAT 1974 [15]-[16] citing Standard Chartered Bank of Australia v Antico (1993) 36 NSWLR 87, 92-93.
  58. Price v Castlemaine District Community Health Centre [2001] VCAT 1974 [15], citing Standard Chartered Bank of Australia Ltd v Antico (1995) 36 NSWLR 87, 91.
  59. Sections 121 to 126 in the Evidence Act 2008 (Vic) deal with different circumstances in which client legal privilege may be lost.
  60. See examples where privilege had been waived: ‘EX9’ and City of Darebin [2022] VICmr 246, where the agency disclosed the contents of the legal advice to other Victorian government agencies; Asahi Holdings (Australia) Pty Ltd v Pacific Equity Partners Pty Ltd (No 2) [2014] FCA 481, where the client voluntarily disclosed legal advice to its insurers for the purposes of the insurer assessing the client’s insurance claim. In Asahi, the interests of the parties were not the same and there was real potential for the interests of the insurer and the client to be disparate and competing.
  61. Asahi Holdings (Australia) Pty Ltd v Pacific Equity Partners Pty Ltd (No 2) [2014] FCA 481.
  62. DU8’ and Department of Premier and Cabinet [2021] VICmr 315; Osland v Secretary to the Department of Justice [2008] HCA 37.
  63. Mann v Carnell (1999) 201 CLR 1.
  64. See Duffy v Victorian Workcover Authority [2013] VCAT 545 [27]-[28]; Evidence Act 2008 (Vic), section 125.
  65. Attorney General (NT) v Kearney [1985] 158 CLR 500; Duffy v Victorian Workcover Authority [2013] VCAT 545.
  66. Sections 121 to 126 in the Evidence Act 2008 (Vic) deal with different circumstances in which client legal privilege may be lost.
  67. See examples where privilege had been waived: ‘EX9’ and City of Darebin [2022] VICmr 246, where the agency disclosed the contents of the legal advice to other Victorian government agencies; Asahi Holdings (Australia) Pty Ltd v Pacific Equity Partners Pty Ltd (No 2) [2014] FCA 481, where the client voluntarily disclosed legal advice to its insurers for the purposes of the insurer assessing the client’s insurance claim. In Asahi, the interests of the parties were not the same and there was real potential for the interests of the insurer and the client to be disparate and competing.
  68. Asahi Holdings (Australia) Pty Ltd v Pacific Equity Partners Pty Ltd (No 2) [2014] FCA 481.
  69. DU8’ and Department of Premier and Cabinet [2021] VICmr 315; Osland v Secretary to the Department of Justice [2008] HCA 37.
  70. Mann v Carnell (1999) 201 CLR 1.
  71. See Duffy v Victorian Workcover Authority [2013] VCAT 545 [27]-[28]; Evidence Act 2008 (Vic), section 125.
  72. Attorney General (NT) v Kearney [1985] 158 CLR 500; Duffy v Victorian Workcover Authority [2013] VCAT 545.
  73. See examples Morgan v Department of Human Services [2008] VCAT 2420; Smeaton v Victorian WorkCover Authority [2017] VCAT 1482.
  74. AWB Limited v Honourable Terence Rhoderic Hudson Cole (No 5) [2006] FCA 1234 [44](8). See example Smeaton v Transport Accident Commission [2017] VCAT 1485.
  75. See example, Crozier v Department of Health [2022] VCAT 1301 [38].
  76. Dingle v Commonwealth Development Bank of Australia [1989] FCA 499 [11]-[14], cited with approval in Mostafa v Victorian WorkCover Authority [2013] VCAT 782 [30].
  77. See Conyers v Monash University [2005] VCAT 2509 [7]; Re City Parking Pty Ltd v City of Melbourne (1996) 10 VAR 170, 202.
  78. See examples Morgan v Department of Human Services [2008] VCAT 2420; Smeaton v Victorian WorkCover Authority [2017] VCAT 1482.
  79. AWB Limited v Honourable Terence Rhoderic Hudson Cole (No 5) [2006] FCA 1234 [44](8). See example Smeaton v Transport Accident Commission [2017] VCAT 1485.
  80. See example, Crozier v Department of Health [2022] VCAT 1301 [38].
  81. Dingle v Commonwealth Development Bank of Australia [1989] FCA 499 [11]-[14], cited with approval in Mostafa v Victorian WorkCover Authority [2013] VCAT 782 [30].
  82. See Conyers v Monash University [2005] VCAT 2509 [7]; Re City Parking Pty Ltd v City of Melbourne (1996) 10 VAR 170, 202.
  83. Frugtniet v Legal Services Board [2014] VCAT 1299; Birrell v Department of State and Regional Development and Department of Premier and Cabinet [2001] VCAT 50.
  84. Frugtniet v Legal Services Board [2014] VCAT 1299; Birrell v Department of State and Regional Development and Department of Premier and Cabinet [2001] VCAT 50.
  85. Chopra v Department of Education and Training [2019] VCAT 1860 [55]-[57]; Commissioner of State Revenue v Tucker [2021] VCAT 238 [107]-[132].
  86. See Ormonde v Darebin City Council [2008] VCAT 588; cf Martin v Melbourne Health [2019] VCAT 1190, where an expert report was privileged because it was solely produced for the client’s lawyer for the purposes of providing legal advice to the client.
  87. See McCulloch v University of Melbourne [2001] VCAT 2246 [53]-[54].
  88. Re City Parking Pty Ltd v City of Melbourne (1996) 10 VAR 170, 200.
  89. Smeaton v Victorian Workcover Authority [2008] VCAT 166 [19].
  90. Chopra v Department of Education and Training [2019] VCAT 1860 [55]-[57]; Commissioner of State Revenue v Tucker [2021] VCAT 238 [107]-[132].
  91. See Ormonde v Darebin City Council [2008] VCAT 588; cf Martin v Melbourne Health [2019] VCAT 1190, where an expert report was privileged because it was solely produced for the client’s lawyer for the purposes of providing legal advice to the client.
  92. See McCulloch v University of Melbourne [2001] VCAT 2246 [53]-[54].
  93. Re City Parking Pty Ltd v City of Melbourne (1996) 10 VAR 170, 200.
  94. Smeaton v Victorian Workcover Authority [2008] VCAT 166 [19].
  95. Birrell v Department of State and Regional Development and Department of Premier and Cabinet [2001] VCAT 50.
  96. Birrell v Department of State and Regional Development and Department of Premier and Cabinet [2001] VCAT 50.

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Last updated 13 February 2024

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