Dear all

Some of you will be aware of the High Court of Australia's judgment in
Glencore International AG v Commissioner of Taxation [2019] HCA 26 (14
August 2019) http://www.austlii.edu.au/cgi-bin/viewdoc/au/cases/cth/HCA//2019/26.html

In brief, the applicant sought an injunction to restrain use by the
Commissioner of Taxation of documents over which the applicant claimed
legal professional privilege and which had been disclosed as part of
the so-called Paradise Papers leak. The applicant argued that
privilege was in itself sufficient to justify the grant of an
injunction and that it did not have to rely on the law of
confidentiality for this purpose.

The Court held the privilege is an immunity, not a right which would
justify the grant of an injunction, in the absence of confidentiality,
which would justify the grant of injunctive relief.

I must confess, with the utmost respect, that I find the reasoning
conclusory at best. A number of questions do also seem to arise
though:
1. The case was put on the basis that privilege would justify the
grant of injunctive relief, without reference to the law of
confidence. I am sure that I am missing something here but that seems
to me a baffling concession. Whatever one's view of the Paradise
Papers leak, the fact remains that confidential documents were
disclosed without the consent of those like Glencore who had a right
to that confidence. Everyone, including the Commissioner is presumably
aware of how these documents became public. In those circumstances,
why would the Commissioner not be impressed with an obligation to
respect that confidence, as against Glencore, in much the same way as
a third party is obliged by equity not to accept the disclosure of
information which he knows is being provided by an employee in breach
of confidence. Was there a concern that the Commissioner might
successfully rely on a public interest or statutory defence?

2. Does the HCA's reasoning suggest that a different result would be
reached where privilege is constitutionally protected or guaranteed by
the European Convention on Human Rights? There, arguably at least, it
is in reality a substantive legal right.

3. To ask 1 in another way, how can privilege be claimed at all by a
party who cannot say either that (i) the documents are in fact be
confidential or (ii) the documents should and would be confidential
but for some wrongful act of the other side or of which the other side
is on notice?

Any comments would be most welcome as I have rarely left a judgment of
the HCA so unsatisfied.

Kind regards

GEr