Legal professional privilege and the foreign lawyer in Australia

Legal professional privilege is very important to lawyers and clients alike. It has evolved within the common law world over a period of centuries. In a domestic Australian context the test to establish what attracts advice privilege has become reasonably well settled. However, the increasingly international character of commerce has revealed new challenges. Is the current test appropriate to determine whether advice given outside Australia by a foreign lawyer is privileged? This article considers that question in detail. After examining the historical development of legal professional privilege, the article discusses Kennedy v Wallace (2004) 208 ALR 424 (at first instance) and Kennedy v Wallace (2004) 142 FeR 185 (on appeal). The article concludes that the current test is both capable and appropriate if properly applied.