Esso Australia Resources Ltd v Commissioner of Taxation of the Commonwealth of Australia [1998] FCA 1655 (22 December 1998)

PRACTICE AND PROCEDURE – Discovery – Client legal privilege – Statutory protection for communications prepared for dominant purpose of providing legal advice or services in connection with litigation – Evidence not to be adduced – Whether extends to ancillary processes such as discovery and inspection – Construction – Whether in area not covered by statute common law sole purpose test modified by analogy with statute – Rules of Court – Court not to make order for production unless satisfied that order necessary – Whether proper exercise of power to exclude documents from production solely because they meet dominant purpose test.

“Section 5  provides for certain provisions of the Act (not including ss 118 and 119) to apply to all proceedings in “an Australian court”. It is unnecessary for present purposes to outline those provisions other than to say that, in general, they relate to formal, rather than substantive, evidentiary matters.”