The High Court, Privilege And Paradise: The ATO And Accessing Corporate Confidential Information

Introduction

Last week, in Glencore v Commissioner of Taxation [2019] HCA 26 the High Court of Australia unanimously affirmed the status of Legal Professional Privilege (LPP) as merely an immunity from the exercise of compulsory statutory powers. LPP is not an actionable right founding an independent cause of action capable of restraining third parties from using privileged communications in their possession. LPP remains very much a shield against prying eyes, not a sword to independently wield.

Background

In October 2014, the plaintiff, Glencore International AG (Glencore), through its Sydney based solicitors, engaged a law practice in Bermuda (Appleby) to provide legal advice on a group wide restructure called 'Project Everest'.

In November 2017, papers from Appleby, colloquially called the 'Paradise Papers,' were hacked by a third party, given to the International Consortium of Investigative Journalists and published worldwide. The ATO came into possession of the Project Everest papers without Glencore's consent and intended to use these in their tax assessment of Glencore and the group more generally. Glencore continued to...