Justice Bell contested Mr Jackman’s claim that “the balancing has already been done [in favour of legal privilege]” , saying it was “somewhat different” when a court was being asked to rule on “material which is in the public domain”.
Justice Keane noted that a case relied on by Glencore “was not concerned with information known to the whole world”.
“That would tend to falsify the determination by a court made in ignorance of it.”
‘So it does not sound like he wants to lessen our tax’
The issues raised by the bench in the hearing point to the difficulties facing Glencore.
The miner noted the ATO was “threatening to use the privileged material against our interests” and had refused all requests to return it.
“So it does not sound like he wants to lessen our tax,’’ Mr Jackman told the court.
Glencore sought advice from Bermuda law firm Appleby on a 2014 restructure of its Australian operations, which include 25 mines across NSW, Queensland, Western Australia and the Northern Territory. It was dubbed Project Everest.
That advice was contained in a cache of more than 7 million documents from Appleby that was shared with the International Consortium of Investigative Journalists and dubbed the Paradise Papers when published by The Australian Financial Review and other media groups in 2017.
After one Financial Review story – “The documents Glencore doesn’t want the taxman to see” – the miner demanded this publication remove the documents from its website as they were subject to legal privilege. The Financial Review refused, saying it had “not infringed any legal rights of Glencore”.
As the High Court hearing made clear, Glencore’s claim to legal privilege may not be correct.
The Commonwealth Solicitor-General, Stephen Donaghue QC, said case law shows legal privilege “confers an immunity from compulsory production of privileged documents and nothing else”.
However, Glencore is also arguing – in the words of Justice James Edelman – that it “is prophylactic and designed to prevent people from acting in a particular way”.
Mr Jackman said Glencore would embrace “a rule that prevents protected communications from being used against the interests of the person entitled to a secure space”.
But the silk again found Justice Keane waiting when he said the refusal to return the documents was reason alone to justify an injunction “because there is a threat by the commissioner to use them otherwise”.
Justice Keane: “Even if he uses them to get the actual right result?”
The court reserved its judgment.