Glencore International AG v Commissioner of Taxation [2019] HCA 26

HIGH COURT OF AUSTRALIA

KIEFEL CJ, BELL, GAGELER, KEANE, NETTLE, GORDON AND EDELMAN JJ

GLENCORE INTERNATIONAL AG & ORS PLAINTIFFS

AND

COMMISSIONER OF TAXATION OF THE COMMONWEALTH OF AUSTRALIA & ORS DEFENDANTS

Glencore International AG v Commissioner of Taxation [2019] HCA 26 14 August 2019 S256/2018

ORDER

1. The demurrer be upheld.

2. The proceeding be dismissed with costs.

Representation

I M Jackman SC with T L Phillips for the plaintiffs (instructed by King & Wood Mallesons)

S P Donaghue QC, Solicitor-General of the Commonwealth, with M J O'Meara for the defendants (instructed by Australian Government Solicitor)

Notice: This copy of the Court's Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.

CATCHWORDS

Glencore International AG v Commissioner of Taxation

Privilege – Legal professional privilege – Where documents identified by plaintiffs as having been created by law practice for sole or dominant purpose of provision of legal advice to plaintiffs – Where privileged documents stolen from electronic file management system of law practice and disseminated – Where documents obtained by defendants – Where defendants refused to return documents to plaintiffs and provide undertaking not to refer to or rely upon documents – Where plaintiffs sought injunctive relief in equity's auxiliary jurisdiction solely on basis of legal professional privilege – Where plaintiffs did not seek injunctive relief on basis of confidentiality or other area of law – Where defendants demurred on basis that no cause of action disclosed – Whether legal professional privilege operates only as immunity or is also actionable legal right – Whether policy considerations justify creation of new actionable right in respect of documents subject to legal professional privilege.