ARTICLE · 28 JUNE 2004

Helpful Decisions on Legal Professional Privilege

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The Full Federal Court's decision in Pratt Holdings Pty Ltd v The Commissioner of Taxation on 12 May 2004 provides a useful clarification of what is required to bring a communication into existence so that it attracts legal professional privilege.

AustraliaTax

Tony Van Merwyk

The Full Federal Court's decision in Pratt Holdings Pty Ltd v The Commissioner of Taxation on 12 May 2004 provides a useful clarification of what is required to bring a communication into existence so that it attracts legal professional privilege.

The case involved a complex taxation issue on which Pratt Holdings took advice separately from its lawyers and accountants. It commissioned the accountant's report directly. That report was subsequently handed to its legal advisers for legal advice.

At trial, considering the Commissioner of Taxation's application for access to the report, Justice Kenny took a narrow view about the circumstances in which privilege can attach to such a report. She decided, with some hesitation, that it could not be said that the accountants were acting as the agent of the principal in the communication of the report to the principal's legal advisers. If Pratt Holdings had commissioned the report expressing its purpose for the obtaining of legal advice from

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