Privilege in a time sheet?

Can a lawyer’s bill be subject to client legal privilege (the Evidence Act, 2008‘s equivalent of the common law’s legal professional privilege)? Can a lawyer’s time sheet be privileged? Yes, if they disclose privileged information, the Supreme Court’s Justice Vickery has reiterated in Hodgson v Amcor Ltd [2011] VSC 204 at [53] to [65] (despite the numbering below):

‘Memorandum of Costs and Time Ledger
1                Mr Macken’s memorandum of costs and his time ledger were documents 68 and 69 in the affidavit of documents.  They were claimed to be privileged on both the legal advice ground and the litigation ground.

2                Document 68 in the affidavit of documents was described as “Memorandum of Professional Costs and Disbursements re General Advices – Various Matters for the period 20/04/05 – 20/06/05”.

3                Document 69 was described as “Time Ledger”.

4                It is accepted that legal professional privilege attaches to a communication undertaken, or to a document brought into existence, for the dominant purpose of giving or obtaining legal advice.  At first glance, a memorandum of professional costs or a time ledger prepared by a solicitor does not have this dominant purpose.  It is prepared for the purpose of accounting to the client for work done, and rendering a bill of costs in respect of it.

5                However, and subject to meeting the dominant purpose test, legal professional privilege also protects the disclosure of documents that record legal work carried out by the lawyer for the benefit of the client.  In these cases, the protection extends to notes, memoranda or other documents made by a lawyer that relate to information sought by the client to enable him or her to advise.

6                The Amcor parties submitted that documents of the type in question are not ordinarily privileged.  Reliance was placed on the observations of Tamberlin J in Lake Cumbeline Pty Ltd & Ors v Effem Foods Pty Ltd.[1] The documents which were the subject of the contested claim of privilege in that case included accounts for professional costs from a firm of solicitors.  There were also memoranda and accounts from other solicitors relating to Victorian Supreme Court proceedings concerning the applicants and another party and accounts and memoranda of costs relating to another piece of litigation.

7                However, as illustrated by Lake Cumbeline, careful consideration needs to be undertaken of the form of the particular memorandum of costs in question.

8                In the usual case, a memorandum of fees is brought into existence, not for the dominant purpose of obtaining legal advice, or for use in legal proceedings, but principally for the purpose of recording and raising charges in respect of work which had been already completed.  In such a case, where for example the memorandum of fees merely set out the dates and refers to the action taken in respect of which a charge is made, no privilege will attach.  This was the case in Lake Cumbeline.

9                The same approach is taken in respect of other accounting records maintained by a solicitor.  Thus in Packer v Deputy Commissioner of Taxation[2] the Full Court of the Supreme Court of Queensland held that legal professional privilege does not attach to entries in a solicitor’s trust account ledger, except to the extent that such entries record communications referable to the relation of solicitor and client in a professional sense.  The Court pointed out that the general nature of trust account ledgers is to record movement of money and to indicate matters in respect of which the movement occurs.[3] The dominant purpose of trust account ledgers, in the usual case, is to record movement of money and to indicate matters in respect of which the movement occurs.

10             However, cases where memoranda or bills of costs rendered by a solicitor are in detailed form and disclose, either directly or indirectly, communications concerning matters that are protected by the privilege, including instructions given by a client to his solicitors, the advice given, approaches to potential witnesses and other such things, stand in an altogether different class.  Such memoranda and bills of costs are likewise privileged.

11             Were the position to be otherwise, it would work to undermine the privilege and the public policy it seeks to advance.  It would have the consequence that a party, while initially at least being able to seek legal advice and initiate the creation of documents for use in legal proceedings fully protected by legal professional privilege, would risk losing the benefits of the privilege when it comes time to pay for the legal services provided.  If this was to occur, in my opinion, the outcome would “substantially impede freedom of communication between client and legal advisers, which is at the very heart of the privilege. This would discourage free and uninhibited discussion of the issues and questions for fear that these communications could later be disclosed to the severe disadvantage of the client”.[4]

12             In the present case, I have perused the relevant memorandum of costs and the time ledger.  I consider that they disclose the nature or content of privileged material.

13             For this reason, the relevant memorandum of costs and the time ledger are themselves privileged.