Background
Between 1996 and 2010, the New South Wales Aboriginal Land Council (NSWALC) and Walgett Local Aboriginal Land Council (WALC) lodged 23 Aboriginal land claims over lands in North-West New South Wales. The Minister refused all claims between November 2024 and March 2025, asserting the lands were not claimable Crown lands. The Applicants commenced five separate proceedings in 2025 appealing these refusals.
In March 2026, the Applicants issued subpoenas to Local Land Services (LLS), seeking documents including stock permits and communications with deponents. Between April and May 2026, LLS produced documents to the court. The Minister then sought to withhold certain documents—internal emails between LLS staff members (Category D Documents)—claiming they were privileged communications made for the dominant purpose of obtaining legal services in the proceedings.
The Court’s Holding
Justice Duggan rejected most of the Minister’s privilege claims. The court applied common law principles requiring a claimant to establish three elements: (1) the material comprises communications; (2) the communication was made for the dominant purpose of providing professional legal services; and (3) the communication was made under an express or implied obligation of confidence. The Minister bore the onus of proof, which could not be discharged by vague verbal formulas or conclusory assertions.
The court found the evidence “both unspecific and relied upon a verbal formula.” While the solicitor for the Minister (Ms Fegan) had provided a schedule categorizing documents as privileged, her statements were largely conclusory—asserting without particularity that documents were “prepared for the dominant purpose of the Minister being provided with professional legal services.” The court held that merely gathering materials, providing logistical support, or facilitating contact with witnesses did not establish that specific communications were made for the dominant purpose of obtaining legal services, rather than for administrative or factual purposes. The relationship between the Minister and LLS was multi-faceted, but the evidence failed to identify which purpose motivated each individual communication.
The court upheld privilege claims only for a narrow category of documents: a shared folder of materials intended for the Crown Solicitor’s Office and Counsel, and an action item list prepared by the CSO concerning proposed litigation steps. All other Category D Documents were found to lack sufficient evidentiary support for the privilege claim.
Key Takeaways
- Privilege claims by third parties over communications require specific, particularized evidence for each document—not blanket formulaic assertions by solicitors.
- The “dominant purpose” test requires clear proof that obtaining legal services predominated over other purposes; mere administrative assistance or factual assistance does not attract privilege.
- A solicitor’s conclusory statement that a document is privileged, without explanation of the reasoning and evidence supporting that conclusion, is insufficient to discharge the onus of proof.
- Where a third party’s relationship with a client involves multiple functions, the evidence must identify which specific purpose motivated each communication in dispute.
Why It Matters
This decision reinforces important limits on legal professional privilege claims, particularly where third parties are involved. Courts will not accept bare assertions or formulaic language from solicitors claiming privilege. Each communication must be individually assessed with specific evidence showing it was made for the dominant purpose of obtaining legal services. This principle protects the discovery process and prevents parties from using broad, unsubstantiated privilege claims to withhold relevant evidence.
The decision is also significant for Aboriginal land rights litigation, as it ensures that factual materials and administrative communications generated by government agencies—even when gathered at the request of legal counsel—remain discoverable unless the claiming party can prove the specific communication at issue was made for the paramount purpose of obtaining legal advice. This balance between protecting legitimate legal privilege and maintaining access to evidence is critical in administrative law disputes.