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The Federal Court (Gyles J) has upheld the Commissioner's appeal from a decision of the AAT, which had ordered access to be given to the taxpayer to 9 documents or parts thereof in relation to which legal professional privilege was claimed by the Commissioner pursuant to s 42 of the Freedom of Information Act 1982.

Both parties accepted that the documents (all but 2 of which were advices from counsel) were prima facie entitled to the benefit of legal professional privilege, but the taxpayer successfully argued before the AAT that certain other documents, which were produced pursuant to the Freedom of Information request, disclosed the substance of the advices reflected in the 9 documents not produced, thereby waiving legal professional privilege in the underlying advices.

In upholding the Commissioner's appeal, the Court held that there had been no voluntary production of the relevant parts of the documents said to waive privilege, nor had there been any use of the material that was disclosed that was inconsistent with maintaining confidentiality in the underlying advices, in accordance with the principles enunciated in the High Court decision of Mann v Carnell (1999) 201 CLR 1: FCT v Devereaux Holdings Pty Limited [2007] FCA 821 (Federal Court, Gyles J, 29 May 2007).

For a copy of the decision, go here

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