A privilege is a privilege. Not a claim-right. Straighforwardly correct.

I agree that it's a bit odd that there should be no confidence here (unless disclosure was in the public interest).

Absent confidence, howeveer, I'm a bit unhappy about granting injunctions to those with no rights to protect or duties to enforce. Injunctions are drastic remedies, involving the judge (as Tony Weir once put it) taking off his wig and donning a helmet; if I'm not breaking a duty owed to anyone I shouldn't on principle be liable to be bossed around. The increasingly wide interpretation attached to s.37 of our Senior Courts Act and its analogues elsewhere is in my view worrying.

I should add that in the European field I'm equally unhappty about the morphing of the ECHR into a sourse of rights against anyone other than the state, and decry the trigger-happy use of injunctions in that connection too. 

Andrew

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