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05 Sep 06 In-house legal advice subject to privilege - Rio Tinto

The Federal Court (Sundberg J) has upheld the taxpayer's claim for legal privilege in respect of 2 documents created by the taxpayer's Chief Counsel. Referring to principles of law contained in recent court decisions, his Honour said:

"These...statements of the law are equally applicable to lawyers who practise as in-house counsel. Such lawyers are less likely to be provided with a bundle of documents and asked to “advise me what I should do”, but it is implicit in their role that they are to advise on legal matters that arise in the course of their employment."

His Honour also held that the provision of legal advice was the dominant purpose of the 2 documents' creation.

However, his Honour rejected a claim for privilege in respect of legal advice provided to a third party: Rio Tinto Ltd v FCT [2006] FCA 1200 (Federal Court, Sundberg J, 4 September 2006).

For a copy of the decision, go here

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