Litigation and Alternative Dispute Resolution

Authors: Katherine Hayes, Partner & Elise Turnbull, Senior Associate

On 9 September 2019, in Australian Securities and Investments Commission v Mitchell [2019] FCA 1484. Justice Beach2 once again provided a clear explanation of the relevant test to be satisfied when seeking to rely on litigation privilege. 

In dismissing a director’s challenge to the Australian Securities and Investments Commission’s claims to litigation privilege, his Honour confirmed the test requires the party claiming privilege to show the confidential documents in question were created for the dominant purpose of use in existing or reasonably anticipated litigation.  

Various types of privilege exist at common law and under statute. Litigation privilege, alongside legal advice privilege, falls under the umbrella of legal professional privilege (LPP). LPP is commonly relied upon by disputing parties to withhold from disclosure confidential communications by which they give or receive legal advice or prepare for litigation.

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