- Those claiming the legal professional privilege should produce an affidavit sworn by a lawyer from the solicitors or the litigant or both to prove that the communications in the files are confidential; and they were created for the dominant purpose of providing legal advice in anticipation of litigation that was taking place or reasonably apprehended.
- The Court is unable to assess the “dominant purpose” test in respect of the subject documents without some evidence on oath and possibly some limited cross examination.
- In assessing any claim for legal professional privilege the timing of the dominant purpose and the anticipated proceedings should be considered with respect to the documents sought.
- Further the following may also be relevant: the circumstances in which any external advice is sought and its disclosure, and whether privilege has been waived or not .
- That assessment is usually done after consideration of evidence on oath.
- The issue of waiver of the legal professional privilege cannot be determined without sworn evidence.
- The Court is unable to assess a claim of legal professional privilege in relation to a category of documents without properly tested evidence before the Court on oath and inspection of particular documents, if necessary.
Kingley & Arndale  FMCAfam 600 saw Purdon Sully FM dealing with an objection to evidence on the basis of legal professional privilege. In so doing Her Honour found that: