Australian decision confirms privilege for in-house lawyers admitted outside Australia

A recent decision of the Supreme Court of Queensland confirms that legal professional privilege applies to advice given by in-house lawyers who are admitted to practice outside Australia: Aquila Coal Pty Ltd v Bowen Central Coal Pty Ltd [2013] QSC 82.

The plaintiff in this case had contended that, as the defendant's general counsel was not admitted as an Australian legal practitioner, none of the advice provided by the defendant's in-house lawyers, and none of the instructions provided to the in-house lawyers, attracted privilege. The court rejected this contention. The authorities relied upon by the plaintiff supported a finding that privilege could not attach to advice given by a person who was not admitted to practice anywhere as a legal practitioner. It did not follow, however, that admission to practice in Australia was a requirement for the application of privilege.

Although there are significant differences in the application of privilege under English and Australian law, this decision shows that the two legal systems are in agreement on the application of privilege to foreign lawyers. As a matter of English law, it has long been established that privilege applies to the advice of foreign lawyers, i.e. those who are qualified outside England and Wales. This was recognised by the recent decision of the UK Supreme Court in the Prudential case [2013] UKSC 1 (see our post on that decision).

If you would like further information on the Australian decision, please speak to Mark Darwin who is a dispute resolution partner in our Brisbane office.