Claims to client legal privilege made by regulators

One of my clients sought in the Supreme Court of Victoria prohibition against the Victorian Legal Services Commissioner continuing a prosecution she had initiated in VCAT. He settled it and so it will not go to judgment. He said the prosecution was an abuse of process, in part because of a breach by the Commissioner of her statutory obligation to investigate as expeditiously as possible. The Commissioner’s delegates had claimed to be entitled to put the investigation on hold pending the determination of Supreme Court proceedings which had related subject matter (echoes of Victorian Legal Services Commissioner v Cahill [2017] VSCA 283).

Twice the Commissioner and the holder of the antecedent statutory office of Legal Services Commissioner had taken advice of counsel, two of them in fact. In response to a Notice to Produce, the Victorian Legal Services Commissioner redacted that part of her and the Legal Services Commissioner’s alleged delegates’ decisions which referred to the advice, and even redacted references to the names of the barristers.

A procedurally embarrassing saga in South Australia has thrown up some interesting decisions, referred to in Keung v Abbott [No 2] [2019] SASCFC 39, in which the Full Court shut down an attempt to prosecute a lawyer by proceedings commenced on 17 April 2015 for conduct which allegedly occurred between 2007 and January 2010. One of them suggests that regulators cannot claim privilege for advice they take and rely on to make administrative decisions such as whether to prosecute. Those decisions include:

  • In Legal Profession Conduct Commissioner v Richardson (2016) 125 SASR 152, the Full Court held that a new limitation period for disciplinary complaints (3 years, down from 5 years) applied to all disciplinary proceedings commenced after the commencement date of the amendments (1 July 2014), regardless of whether the conduct in question pre-dated or post-dated that question. That is an interesting decision, by analogy, for the discussion I engaged in in this post, though of course it is different legislation.
  • In Keung v Abbott [2017] SASCFC 58, the Chief Justice (with whom Hinton J agreed at [143]) considered an argument that an extension of time to bring the disciplinary prosecution should be granted, because the delay was associated with the complainant’s attempt to obtain, by subpoena which the Court refused to issue, a report of a firm of solicitors, Cossof Cudmore Knox (CCK). They had investigated the complaint and made a report at the Board’s request. There was a question about whether the Board could assert privilege over that report which was relevant to whether the Court should have issued the subpoena, and ultimately to the issue of the reasonableness of the delay. The Chief said at [4]:

The CCK report was privileged when first obtained for the reasons given by Kelly J.  However, it is, at least, arguable that the Board waived that privilege by expressly considering it for the purpose of determining Dr Keung’s complaints.  There is a distinction between a statutory authority obtaining and relying on legal advice to exercise a unilateral power, and the ‘outsourcing’ to its legal advisors of an investigative function by a tribunal with a statutory obligation to accord procedural fairness.  A tribunal burdened with that obligation which expressly discloses that it has considered the advice of its legal practitioner for the purposes of explaining the basis of its decision may, by so doing, waive the privilege which would otherwise attach to that advice.[1]   For that reason it was not unreasonable for Dr Keung to seek to obtain it.


[1]    Commissioner of Taxation v Rio Tinto Ltd (2006) 229 ALR 304 at [67];  Mann v Carnell (1999) 201 CLR 1 at [29]New South Wales Council for Civil Liberties Inc v Classification Review Board (2006) 236 ALR 313 at [26]-[27].

See also:

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