legal practice and conduct reading summaries: sample

LAW3LPC – Legal Practice & Conduct

LEGAL PRACTICE AND CONDUCT

READING SUMMARIES: SAMPLE

Table of Contents I INTRODUCTION ................................................................................................................................ 3

A Legal Responsibility & Framework ................................................................................................ 3

B Legal Profession .............................................................................................................................. 4

C Lawyering ........................................................................................................................................ 5

D Case Law ......................................................................................................................................... 7

II REGULATION & ADMISSION ...................................................................................................... 11

A Compliance Certificate ................................................................................................................. 11

B Admission to Legal Practice ......................................................................................................... 13

C Removal ......................................................................................................................................... 15

III COMPLAINTS & DISPLICINARY PROCEDURES .................................................................... 19

A Consumer Matter Complaints ....................................................................................................... 19

B Disciplinary Matter Complaints .................................................................................................... 26

C Misconduct .................................................................................................................................... 36

D Case Law ....................................................................................................................................... 42

IV DUTY TO THE COURT & ADMINISTRATION OF JUSTICE .................................................. 45

A Duty to the Court & Administration of Justice ............................................................................. 45

B Exercise Independence .................................................................................................................. 45

C Exercise Candour .......................................................................................................................... 48

D Exercise Integrity .......................................................................................................................... 52

E Responsible Use of Court Processes ............................................................................................. 54

F Uphold the Law.............................................................................................................................. 58

G Particular Applications ................................................................................................................. 58

V LAWYER-CLIENT RELATIONSHIP ............................................................................................ 64

A Relationship .................................................................................................................................. 64

B Duties ............................................................................................................................................ 66

C Case Law ....................................................................................................................................... 67

VI DUTIES RELATING TO COSTS .................................................................................................. 68

A Costs Disclosure ........................................................................................................................... 68

B Costs Agreements .......................................................................................................................... 69

C Billing ............................................................................................................................................ 73


D Unpaid Legal Fees ........................................................................................................................ 74

E Costs Assessment ........................................................................................................................... 74

VII DUTY TO ACCOUNT – TRUST MONEYS ................................................................................ 77

VIII DUTY OF LOYALTY – CONFLICTS OF INTEREST .......................................................... 86

A Fiduciary Duty of Loyalty ............................................................................................................. 86

B Duty Not to Act in a Position of Conflict ....................................................................................... 86

C Lawyer – Client Conflict ............................................................................................................... 87

D Concurrent Conflict ...................................................................................................................... 91

E Successive Conflict ........................................................................................................................ 97

F Positional Conflict ....................................................................................................................... 107

G Case Law ..................................................................................................................................... 107

IX DUTY OF COMPETENCY & DUTY OF CARE .................................................................... 109

A Duty of Competency .................................................................................................................... 109

B Liability – Contract & Tort ......................................................................................................... 109

C Liability – Statute ........................................................................................................................ 119

D Case Law ..................................................................................................................................... 120

X DUTY OF CONFIDENTIALITY & LEGAL PROFESSIONAL PRIVILEGE ............................. 121

A Duty of Confidentiality ................................................................................................................ 121

B Legal Professional Privilege ....................................................................................................... 125

C Case Law ..................................................................................................................................... 139

XI IN-HOUSE LAWYERS ................................................................................................................ 143

A Ethical Issues .............................................................................................................................. 143

B Government Lawyers ................................................................................................................... 146

C Case Law ..................................................................................................................................... 149

XII DUTY OF PUBLIC SERVICE & JUSTICE ISSUES ................................................................. 151

A Duty of Public Service ................................................................................................................. 151

B Access to Justice .......................................................................................................................... 152

C Case Law ..................................................................................................................................... 155


X DUTY OF CONFIDENTIALITY & LEGAL

PROFESSIONAL PRIVILEGE It is important that clients’ confidential information is not disclosed by lawyers. This is ensured

through (a) duty of confidentiality; and (b) legal professional privilege.

Further, without prejudice privilege applies to exclude from admissibility into evidence any

correspondence entered into for the purpose of settling a dispute.1 This encourages parties to attempt

resolution prior to proceedings.

A Duty of Confidentiality Lawyers owe a duty of confidentiality to their clients, in that they must maintain inviolate clients’ confidences.2 Its purpose is to improve the effectiveness of legal representation by encouraging client

candour so that lawyers obtain all relevant information. Further, it promotes the relationship of loyalty

and creates opportunities for lawyers to counsel clients on their conduct.

This requires consideration of (1) source; (2) parties; (3) obligation; (4) exceptions; (5) breach; and

(6) inconsistency with duty to court.

1. Source

The duty of confidentiality arises pursuant to (a) Uniform Rules; (b) contract; and (c) equity.

(a) Uniform Rules

Solicitors must not disclose confidential information acquired during the client’s engagement.3

However, disclosure may be made to a solicitor or employee within the practice or to a barrister

engaged to provide legal services for the client.4 This duty persists while the information remains

confidential and therefore beyond termination of the retainer.5

However, disclosure may be made due to: (i) client authorisation; (ii) legal compulsion; (iii) obtaining

advice; (iv) avoiding serious criminal offence; (v) preventing serious physical harm; or (vi) insurance

claims [See below].6

(b) Contract

The duty of confidentiality is an implied term within the retainer agreement.7 The information subject

to that duty will depend on construction of the retainer8 and the duty terminates along with that

agreement. This applies to retainers between the client and solicitor and between the solicitor and

barrister.

1 Cutts v Head [1984] Ch 290, 306. 2 Baker v Campbell (1983) 153 CLR 52 (Gibbs CJ), 65; commissioner of Inland Revenue v West-Walker [1954] NZLR 191 (Stanton J), 214. 3 Legal Profession Uniform Law Australian Solicitors’ Conduct Rules 2015 (Vic), r 9.1. 4 Legal Profession Uniform Law Australian Solicitors’ Conduct Rules 2015 (Vic), r 9.1. 5 B&C p 139. 6 Legal Profession Uniform Law Australian Solicitors’ Conduct Rules 2015 (Vic), r 9.2.1 – 9.2.6. 7 Parry-Jones v Law Society [1969] 1 Ch 1 (Lord Denning), 7; Unioil International Pty Ltd v Deloitte Touche

Tohmatsu (a firm) (1997) 17 WAR 98 (Ipp J), 108. 8 Dal Pont, p 335.


(c) Equity

The duty of confidentiality exists in equity where confidential information is communicated in

circumstances importing an obligation of confidence between the lawyer and client.9 Such

information must not be within the public domain, in that it is not public knowledge or generally

accessible,10 and thus does not apply to every communication between lawyer and client. This duty

persists as long as the information remains confidential and thus continues beyond the retainer

agreement.

2. Parties

The duty is owed by a lawyer to their clients. Client is defined as anyone who engages a solicitor to

provide legal services and thus includes retained clients, potential clients and persons who make

enquiries.11 These may be natural or artificial persons.

The doctrine of imputed knowledge deems all solicitors within a law practice to have the knowledge

of all other solicitors in that practice.12 All those solicitors, and their staff, therefore owe a duty of

confidentiality to the client. Further, a barrister will owe the duty pursuant to their retainer with the

instructing solicitor.

3. Obligation

Lawyers are obliged to not disclose any confidential information which their client confines in them.

This will generally be all the information provided by a client and recorded on file. It is prudent for

lawyers to take precautions to ensure confidential information cannot be accessed by unauthorised

persons.

Suggested precautions include segregating public and private areas of the office, information barriers,

storing information securely and destroying it securely. Phone calls should not be made publically and

information should not be posted online. Electronic devices should be password protected and have

privacy software installed. Further, the electronic information should be encrypted and erased

securely. Clients should be informed when a fax is sent and the cover letter should have a

confidentiality notice included. The recipients of emails should be checked and emails should be

encrypted and prefaced with a confidential and privileged warning.

Lawyers whose clients confess guilt to them but plead not guilty must continue to represent the client

if there is insufficient time to hand the case to another lawyer.13 However, the lawyers must not claim

that the client is innocent or condone the client claiming that they are innocent.

Furthermore, a lawyer must not read confidential communications which should not have been sent to

them.14 This may occur where the lawyer receives an email from the other party which was

mistakenly sent to them. They are obliged to destroy the material and alter the sender.15

9 Coco v AN Clark (Engineers) Ltd [1969] RPC 41; Wilson v Ferguson [2015] WASC 15. 10 Coco v AN Clark (Engineers) Ltd [1969] RPC 41, referring Saltman Engineering Co Ltd v Campbell

Engineering Co (1948) 65 RPC 203; Australian Football League v Age Company Ltd (2007) 15 VR 405; Wilson

v Ferguson [2015] WASC 15. 11 Legal Profession Uniform Law Australian Solicitors’ Conduct Rules 2015 (Vic), Glossary of Terms. 12 Davies v Clough (1837) 159 ER 105, 107. 13 Legal Profession Uniform Law Australian Solicitors’ Conduct Rules 2015 (Vic), r 20.2; Tuckiar v R (1934) 52 CLR 335, 346.


4. Exceptions

The duty does not apply where an exception applies.16 These are (a) authorisation; (b) legal

compulsion; (c) advice purposes; and (d) client admissions.

(a) Authorisation

Disclosure may be made where the client authorises it expressly or impliedly.17 This may be restricted

authorisation and the scope will depend on the terms expressed by the client. The lawyer will not be

permitted to disclose the information for alternative purposes unless there is a clear statement by the

client to the contrary.18 Where the information was provided by multiple clients, the lawyer must

obtain authorisation of each.19

An implied term of authorisation exists in the retainer where non-disclose would frustrate the

purposes of representation. This includes disclosure of information to partners or employees of the

legal practice, who then are also subject to the duty, unless the information is clearly confided

personally and exclusively. Further, it also occurs where the circumstances imply that the client

waives the confidentiality, such as including the information in court documents.

It is inferred that client authorises disclosure upon initiating proceedings against a lawyer to the extent

of matters in issue,20 as the lawyer would otherwise not be able to defend the action. This includes

consumer and disciplinary complaints lodged with the designated local regulatory authority.21

(b) Legal Compulsion

Disclosure may be made where the lawyer is compelled to do so pursuant to law,22 as this overrides

the duty of confidentiality.23 Such requirements will usually be restricted due to seeking to achieve a

specific purpose. This includes: (i) reporting suspicious cash transactions with their clients of over

$10,000;24 (ii) cooperating with investigation of LSC;25 (iii) disclosing information to VLA in relation

to a funded client.

(c) Advice Purposes

The lawyer may disclose confidential information for the purposes of seeking advice in connection

with their legal or ethical obligations.26 This must be in a confidential setting27 and should be with a

dedicated member of a law society. Disclosure in the course of a serious and earnest search for

14 Legal Profession Uniform Law Australian Solicitors’ Conduct Rules 2015 (Vic), r 31. 15 Legal Profession Uniform Law Australian Solicitors’ Conduct Rules 2015 (Vic), r 31. 16 Legal Profession Uniform Law Australian Solicitors’ Conduct Rules 2015 (Vic), r 9.2. 17 Legal Profession Uniform Law Australian Solicitors’ Conduct Rules 2015 (Vic), r 9.2.1. 18 Dal Pont, p 338. 19 Singala v Stockler [2012] EQHC 1176 (Briggs J), [10]. 20 Esso Australia Resources Pty Ltd v BHP Billiton Petroleum (Bass Strait) Pty Ltd [2007] VSCA 224; Benecke

v National Australia Bank Ltd (1993) 35 NSWLR 110. 21 Legal Profession Uniform Law Application Act 2014 (Vic), Sch 1, s 321. 22 Legal Profession Uniform Law Australian Solicitors’ Conduct Rules 2015 (Vic), r 9.2.2. 23 Parry-Jones v Law Society [1969] 1 Ch 1 (Lord Denning), 7. 24 Financial Transactions Reports Act 1988 (Cth), s 15A. 25 Eg Legal Profession Uniform Law Application Act 2014 (Vic), Sch 1, s 466 – may breach confidentiality in relation to investigations into trust accounts. 26 Legal Profession Uniform Law Australian Solicitors’ Conduct Rules 2015 (Vic), r 9.2.3. 27 Legal Profession Uniform Law Australian Solicitors’ Conduct Rules 2015 (Vic), r 9.2.3.


assistance in the interest of the client is therefore not a breach.28 However, it will be a breach if the

lawyer transfers files to other lawyers without the client’s express consent.29

(d) Client Admissions

Disclosure may be made for the purpose of preventing certain conduct of the client. The power to do

so is discretionary and disclosure must be made to an appropriate body, such as police. However,

disclosure to someone clearly in danger may be justified where time is of the essence.

(i) Serious Criminal Offence

A solicitor may disclose confidential information for the sole purpose of avoiding the probable

commission of a serious criminal offence.30 This is discretionary and includes both criminal and

fraudulent activities. However, it does not include past offences. The lawyer must be certain.

(ii) Serious Physical Harm

A solicitor may disclose confidential information for the purpose of preventing imminent serious

physical harm to the client or another person.31 This is discretionary and they must be certain.

(iii) Disobey Court Order

A solicitor may disclose a client’s intention to disobey a court order to the court or opponent if they

believe on reasonable grounds that this constitutes a threat to any person’s safety.32 It is uncertain

whether this is a mandatory or discretionary power, although Dal Pont argued the latter is more

likely.33

(e) Insurance

Disclosure may also be made to the insurer of the solicitor, the legal practice or an associated entity.34

(f) Public Interest

Disclosure may be made pursuant to the equitable doctrine where doing so is in the public interest.

This requires the public interest in the duty of confidentiality to be outweighed by another public

interest. This occurs where the confidential information relates to an iniquity,35 being a serious

crime.36 The disclosure must be made to an appropriate person.37 Australian courts have not

recognised a broad public interest defence, however, and public interest in merely knowing about the

administration of justice is insufficient.38

28 McKaskell v Benseman [1989] 3 NZLR 75 (Jeffries J), 88. 29 Parry-Jones v Law Society [1969] 1 Ch 1 (Lord Denning), 7. 30 Legal Profession Uniform Law Australian Solicitors’ Conduct Rules 2015 (Vic), r 9.2.4. 31 Legal Profession Uniform Law Australian Solicitors’ Conduct Rules 2015 (Vic), r 9.2.5. 32 Legal Profession Uniform Law Australian Solicitors’ Conduct Rules 2015 (Vic), r 20.3.3. 33 Dal Pont, p 347. 34 Legal Profession Uniform Law Australian Solicitors’ Conduct Rules 2015 (Vic), r 9.2.6. 35 Gartside v Outram (1856) 26 LJ Ch 113, 114. 36 A v Hayden (1984) 156 CLR 545 (Gibbs CJ), 545. 37 Legal Practitioners Complaints Committee v Trowell (2009) 62 SR (WA) 1, [375-88]. 38 Solicitor-General v Miss Alice [2007] 2 NZLR 783; Stewart v Canadian Broadcasting Association (1997) 150 DLR (4th) 24.


(g) Non-Confidential Information

Disclosure may be made of information which has become non-confidential, in that it has entered the

public domain.39

5. Breach

Breach of the duty of confidentiality may have repercussions for both the lawyer and client. The client

may initiate action against the lawyer for breach of contract, tort or equity and be awarded equitable

compensation or an account of profits against the lawyer. They may lodge a complaint with the LSC,

which may result in disciplinary proceedings against the lawyer. Further, the lawyer may suffer

practical consequences, such as reputation damage and client loss.

Disclosure of the information may also constitute the information becoming public and therefore no

longer confidential. It may also affect legal professional privilege over the information (see below).

6. Inconsistency with Duty to Court

The duty is opposed by some, however, who argue that can be inconsistent with society’s general

ethical perceptions and thus decrease public confidence. It prevents information reaching the courts

and prevents courts from assessing whether the client is presenting perjured evidence based on the

lawyer’s representation. It risks lawyers’ perceptions of their moral obligations being distorted and

therefore then acting amorally. Further, it precludes innocent clients from relying on their

representatives vouching for their innocence credibly.40

B Legal Professional Privilege Clients have the right to claim legal professional privilege over confidential communications between

themselves and their lawyers which are made for the purpose of legal advice or litigation.41 This exists

pursuant to the common law42 and statute43 and is a higher standard than the duty of confidentiality.

Its purpose is to encourage trust and candour in the lawyer-client relationship. Accordingly, courts do

not draw adverse inferences from any claims of privilege.44

The following must be considered: (1) relationship; (2) confidential information; (3) dominant

purpose; (4) right; (5) exceptions; (6) assertion of right; (7) third party rights; and (8) inconsistency

with duty to court.

1. Relationship

There must be a lawyer-client relationship between the parties, in that there is a professional

relationship between a client and a lawyer.45 A formal or informal retainer will evidence this,46

39 Re a Firm of Solicitors [2005] 3 All ER 482 (Lightman J), 489. 40 All Dal Pont, pp 353-4. 41 Baker v Campbell (1983) 153 CLR 52 (Deane J), 112. 42 Baker v Campbell (1983) 153 CLR 52. 43 Uniform Evidence Act 1995 (Cth); Evidence Act 2008 (Vic). 44 Wentworth v Lloyd (1864) 11 ER 1154. 45 Cook v Leonard [1954] VLR 591 (Sholl J), 592. 46 Hawksford v Hawksford [2005] NSWSC 796 (White J), [17-21]; Brookfield Multiplex Ltd v International

Litigation Funding Partners Pte Ltd (No 2) (2009) 180 FCR 1 (Finkelstein J), [19-22].


although it is not necessary where the client had a reasonable expectation that confidentiality existed.

This occurs where prospective clients have a view to retaining a lawyer to act or a client reasonably

believes the retainer existed. It is irrelevant whether the lawyer was qualified, practicing,47 admitted,

struck off, or never held a legal qualification if the client reasonably believed they were speaking to a

lawyer.48 It is inapplicable where a person acts as their own representation.49

General law privilege requires the lawyer to be competent and independent, particular if they are in-

house.50 However, statutory privilege includes in-house lawyers51 and thus competence and

independence do not need to be established here.

This requires consideration of (a) lawyer; (b) professional capacity; (c) competence [not statute]; (d)

independent [not statute]; and (e) exception.

(a) Lawyer

The person must be a lawyer. This includes a foreign lawyer and it is irrelevant if they give advice

outside of the jurisdiction they are qualified within.52 It is insufficient if the person is a non-lawyer

who performs the same role as a lawyer.53

(b) Professional Capacity

The communication must have been made to/by the lawyer in their professional capacity,54 in that it is

fairly referable to that relationship.55 This requires determination of whether (i) the lawyer was being

asked qua lawyers to provide legal services (eg legal rights, liabilities, obligations or remedies); and

(ii) the matter was one for which it reasonable to consult a lawyer’s special professional knowledge

and skills.56

Accordingly, privilege does not apply if the services provided are unrelated to legal services, such as

business, financial, and other non-legal advice.57 Further, it will not apply if the communication is

made as a mere friend or in a purely social context. It is rare, however, for a court to confidential hold

that a communication did not occur in a professional capacity.58

(c) Competence

47 Grofam Pty Ltd v Australia and New Zealand Banking Group Ltd (1993) 45 FCR 445, 455-6 (FC). 48 Grofam Pty Ltd v Australia and New Zealand Banking Group Ltd (1993) 45 FCR 445, 455 (FC). 49 Hawksford v Hawksford [2005] NSWSC 796 (Campbell J), [22]. 50 Attorney-General (NT) v Kearney (1986) 158 CLR 500; Waterford v Commonwealth (1987) 163 CLR 54; Commonwealth v Vance (2005) 224 FLR 243. 51 Evidence Act 1995 (Cth), s 117. 52 Grofam Pty Ltd v Australia and New Zealand Banking Group Ltd (1993) 45 FCR 445, 455; Evidence Act

1995 (Cth), s 117. 53 Baker v Campbell (1983) 153 CLR 52 (Dawson J), 128. 54 Trade Practices Commission v Sterling (1979) 36 FLR 244 (Lockhart J), 245; Attorney-General (NT) v

Kearney (1985) 158 CLR 500 (Dawson J), 530-1. 55 Minter v Priest [1930] AC 558 (Lord Buckmaster), 568. 56 Three Rivers District Council v Governor & Company of the Bank of England (No 6) [2005] 1 AC 610 (Lord Rodger), [58], [60]. 57 Kennedy v Wallace (2004) 142 FCR 185, [38] (FC). 58 DSE (Holdings) Pty Ltd v Intertan Inc (2003) 135 FCR 151 (Allsop J), [52].


General law privilege requires that the lawyer be competent, in that they are admitted to practice.59 It

is relevant whether they hold a practicing certificate; however, holding one is not determinative.60

However, it is sufficient that the client reasonably believes they were speaking to a lawyer and so

privilege is applicable here even if the person was not admitted, had been struck off, or never held a

legal qualification.61

Statutory privilege does not require competence to be established, as ‘lawyer’ is defined to include in-

house lawyers.62

(d) Independence

General law privilege requires that the lawyer act independently, in that they provide services

independent of their own interests and exercise independent judgement. This requires that they bring a

disinterested mind to bear on the subject matter.63 Independence may be compromised by client

pressure to tailor the advice, which is particularly so in the case of in-house lawyers. This does not

require a practicing certificate.64

Statutory privilege does not require independence to be established, as ‘lawyer’ is defined to include

in-house lawyers.65

(e) Exception

There are some exceptions to the requirement of a lawyer-client relationship. These include: (i)

unrepresented parties; (ii) agents of client; (iii) agents of lawyer; and (iv) witness statements.

(i) Unrepresented Parties

Statutory privilege does not require a lawyer-client relationship in some circumstances where the

client is unrepresented. This applies where adducing evidence would result in disclosure of (i) a

confidential communication between the client and another person; or (ii) the contents of a document

prepared by the client for the dominant purpose of preparing/conducting proceedings.66

(ii) Agents

Communications from the client or lawyers’ agents are sufficient, as they are regarded as the client or

lawyer themselves pursuant to agency law.67 Privilege also applies to communications between

multiple legal advisers of the client or between the lawyer and their partner, agent or counsel.68

(iii) Third Parties

59 Waterford v Commonwealth of Australia (1987) 163 CLR 54 (Brennan J), 70. 60 Commonwealth v Vance (2005) 224 FLR 243, [20-1]; Australian Hospital Care Pty Ltd v Duggan (No 2)

[1999] VSC 131. 61 Grofam Pty Ltd v Australia and New Zealand Banking Group Ltd (1993) 45 FCR 445, 455 (FC). 62 Evidence Act 1995 (Cth), s 117(1). 63 Rich v Harrington (2007) 245 ALR 106 (Branson J), [40]. 64 Commonwealth v Vance (2005) 224 FLR 243. 65 Evidence Act 1995 (Cth), s 117(1). 66 Evidence Act 1995 (Cth), s 120(a)-(b). 67 Trade Practices Commission v Sterling (1979) 36 FLR 244 (Lockhart J), 245; Evidence Act 1995 (Cth), s 177(1). 68 Trade Practices Commission v Sterling (1979) 36 FLR 244.


Pursuant to the general law, a communication to or from third parties will be privileged if it was so

implicated in the communication between the client and the lawyer that it was necessary to enable the

client to obtain advice from the lawyer.69 This requires that the communication from the third party is

not filtered, adapted or subject to the client’s independent judgement prior to communication to the

lawyer, however. It is rare for this exception to apply because third party communications will often

have the character of discrete advice with a distinctive function and purpose in the client’s decision

making.70

Pursuant to statutory privilege, a communication is privilege if adducing it would disclose the

contents of a confidential document prepared by another person for the dominant purpose of the

lawyer providing legal advice to the client.71 Further, a communication between the client or lawyer

and another person for the dominant purpose of the client obtaining legal services for litigation is also

privileged.72

(iv) Witness Statements

Communications between a lawyer and a third party in the form of a witness statement for the purpose

of legal advice for an anticipated claim is privileged.73 This is regardless of whether the claim is

against the client. However, the witness is not precluded from disclosing the information

themselves.74 The position is the same pursuant to general law and statute.75

2. Confidential Communication

There must be a confidential communication between the lawyer and client. However, it may include

communications involving third parties.

(a) Communication

There must be a communication between the client and lawyer. This is defined broadly and may be

oral, written or electronic.76 It includes notes, drafts, charts, diagrams, photographs, spreadsheets,

memoranda, minutes and other documents.77 It also includes documents which are not literal

communications, but are nevertheless incidental to communications, such as draft agreements, draft

statement of claims and annotations which never leave the lawyer.78 Documents which exist prior to

the communication will not be privileged, however.79

69 Pratt Holdings Pty Ltd v Commissioner of Taxation (2004) 136 FCR 357 (Finn J), [41] 70 789 Ten Pty Ltd v Westpac Banking Corp Ltd (2005) 215 ALR 131 (Bergin J), [50-73]. 71 Evidence Act 1995 (Cth), s 118(b). 72 Evidence Act 1995 (Cth), s 119. 73 Australian Competition and Consumer Commission v Telstra Corp Ltd (2000) 96 FCR 317 (Lindgren J), [28-31]. 74 J-Corp Pty Ltd v Australian Builder Labourers Federated Union of Workers (WA) (1992) 38 FCR 452 (French J), 457. 75 Tirango Nominees ty Ltd v Dairy Vale Foods Ltd (1998) 83 FCR 397 (Mansfield J), 399. 76 Baker v Campbell (1983) 153 CLR 52 (Deane J), 112. 77 Trade Practices Commission v Sterling [1979] FCA 33, [245]; Evidence Act 1995 (Cth), Dictionary. 78 DSE (Holdings) Pty Ltd v Intertan Inc (2003) 135 FCR 151 (Allsop J), [114]. 79 Commissioner of Inland Revenue v West-Walker [1954] NZLR 191 (Hay J), 219.


The original communication and any copies of it will be privileged.80 Further, any copies, translations

or marking up or tracking of changes to non-privileged documents which are provided to the lawyer

for the dominant purpose (below) will themselves become privileged.81 However, the original

communication remains non-privileged.82 Documents which are attached to a privileged document

will not be privileged merely due to that fact and each document’s origin and purpose must be

determined.83

(b) Confidential

The communication must be confidential, in the context of the lawyer-client relationship, from the

point of view of the person from whom disclosure is sought.84 The statutory privilege requires that the

person was under an express or implied obligation not to disclose the contents, whether under law or

not.85 This includes unspoken, ethical, moral or social obligations.86 This requires consideration of the

communication’s context and proposed use. Communications in public may preclude

confidentiality.87

Documents which are made available to others are not confidential. This includes communications (i)

lodged in court;88 (ii) lodged with public offices;89 (iii) in their final form which evidence

transactions;90 and (iv) served on the opponent.91 Drafts of documents, however, remain privileged.92

Communication in the form of video footage may be confidential if it is recorded covertly and with

the intention to keep it confidential for use in litigation.93

(c) Parties

The communication must be made between the lawyer and client. However, it will include

communications between the client and third parties for the requisite dominant purpose (below),94 as

well as communications between the lawyer and third parties for the benefit of the party.95

80 Trade Practices Commission v Sterling [1979] FCA 33, [245]; Cole v Elders Finance & Investments Co Ltd

[1993] 2 VR 356. 81 Commissioner, Australian Federal Police v Propend Finance Pty Ltd (1997) 188 CLR 501 (copies); Sumitomo Corp v Credit Lyonnias Rouse Ltd [2002]1 WLR 479, [44-6] (translations); Australian Securities and

Investments Commission v Southcorp Ltd (2003) 46 ACSR 438 (Lindgren J), [31] (marking up or tracking of changes). 82 Commissioner, Australian Federal Police v Propend Finance Pty Ltd (1997) 188 CLR 501. 83 Brooks v Medical Defence Association of Western Australia (1999) 94 FCR 164 (Madgwick J), [4-5]; Mundraby v Commonwealth (2001) 184 ALR 737 (Tamberlin J), [11-6]. 84 J-Corp Pty Ltd v Australian Builders Labourers Federated Union of Workers (WA) (1992) 38 FCR 452 (French J), 455-6; State of New South Wales v Jackson [2007] NSWCA 279 (Giles JA), [37-61]. 85 Evidence Act 1995 (Cth), s 117(1). 86 State of New South Wales v Jackson [2007] NSWCA 279 (Giles JA), [41]; Edwards v Vic Land Rehabilitation

Pty Ltd [2012] VSC 188 (Almond J), [24-6]. 87 Gotha City v Sotheby’s [1998] 1 WLR 114 (Staughton LJ), 119. 88 Dalleagles Pty Ltd v Australian Securities Commission (1991) 4 WAR 325 (Anderson J), 334. 89 Dalleagles Pty Ltd v Australian Securities Commission (1991) 4 WAR 325 (Anderson J), 334. 90 Dalleagles Pty Ltd v Australian Securities Commission (1991) 4 WAR 325 (Anderson J), 334. 91 Australian Competition and Consumer Commission v Cadbury Schweppes Pty Ltd (2009) 174 FCR 547, [35-55]. 92 Australian Competition and Consumer Commission v Cadbury Schweppes Pty Ltd (2009) 174 FCR 547, [73] (FC) 93 Boyes v Collins (2000) 23 WAR 123 (Ipp J), [40], rejecting J-Corp Pty Ltd v Australian Builders’ Labourers’ Federated Union of Workers (WA) (1992) 38 FCR 452, 457. 94 Pratt Holdings Pty Ltd v Commissioner of Taxation (2004) 207 ALR 217.


3. Dominant Purpose

The communication must be made for the dominant purpose of obtaining legal advice or litigation.96

Common examples are (a) advice/opinions of solicitor or counsel; (b) notes from conference with

officers of client company; (c) drafts or copies of documents for purpose of seeking advice; and (d)

written communication between client and solicitor or solicitor and barrister, whether formal or

informal.

This requires consideration of: (a) purpose; (b) dominant purpose; and (c) common examples.

(a) Purpose

The communication must be made for the purpose of obtaining legal advice or litigation.97 This

requires determination of the purpose at the time it was made, being the reason why it was brought

into existence.98 Further, it must not be for a fraudulent purpose.

(i) Advice

Legal advice includes expounding of the law to the client and professional advice as to what is

prudent and sensible in the relevant legal context.99

(ii) Litigation

Litigation includes actual proceedings and anticipated or pending proceedings both within Australia

and overseas.100

Pending litigation is litigation which is more probable than not101 or which has a real prospect of

occurring, as distinct from a mere possibility.102 This requires consideration of whether at the time of

the communication the (i) nature of event giving rise to communication of a kind that often leads to

litigation; (ii) client instructed early on topics suggesting expectation of a claim (eg liability,

indemnity and quantum); and (iii) client already resorted to its insurer.103 In many cases litigation is

likely even prior to evidence gathering.104

Clients who are loss bearing entities, such as insurers, will likely have a privileged purpose where

they genuinely engage a lawyer in circumstances where the requirement of legal services is plausible

and reasonable.105 However, privilege does not arise merely because the communication is ultimately

95 Commissioner of Australian Federal Police v Propend Finance Pty Ltd (1997) 188 CLR 501 (McHugh J), 550. 96 Esso Australia Resources Ltd v FCT (1999) 201 CLR 49; Baker v Campbell (1983) 153 CLR 52; Evidence

Act 1995 (Cth), ss 118-9. 97 Esso Australia Resources Ltd v FCT (1999) 201 CLR 49; Baker v Campbell (1983) 153 CLR 52; Evidence

Act 1995 (Cth), ss 118-9. 98 Waterford v Commonwealth (1987) 163 CLR 54, 66. 99 AWB Limited v Honourable Terence Rhoderic Hudson Cole [2006] FCR 571, [86]. 100 Evidence Act 1995 (Cth), s 119. 101 ACCC v Australian Safeway Stores (1998)81 FGCR 526, 559. 102 Mitsubishi Electric Australia Pty Ltd v Victorian WorkCover Authority (2002) VR 332, 341. 103 Mitsubishi Electric Australia Pty Ltd v Victorian WorkCover Authority (2002) VR 332. 104 Mitsubishi Electric Australia Pty Ltd v Victorian WorkCover Authority (2002) VR 332. 105 Samenic Ltd v APM Group (Aust) Pty Ltd [2011] VSC 194 (Mukhtar AsJ), [25].


intended to reach the lawyer, is triggered by established corporate procedures, or litigation is a

contingent possibility.106

(iii) Fraud

The purpose of the communication must not be for the furtherance or facilitation of criminal,

fraudulent or other unlawful purposes.107 This includes communications for the purpose of a

deliberate abuse of power.108 Accordingly, a communication made under the genuine but mistaken

belief that the proposed action was within the power remains privileged.109 Further, the statutory

privilege includes in this the furtherance of an act that renders a person liable to a civil penalty.110

The focus is on the client’s purpose and thus it is irrelevant if the lawyer was a party to or ignorant of

the purpose.111 This is because the public interest in discouraging fraud/etc outweighs the public

interest in protecting privileged communications.112

The party alleged fraud bears the onus113 of establishing a prima facie that their allegation is honestly

made and is sufficiently probable in its truth.114 There must be admissible evidence that gives

substance to the allegation,115 such as the advice facilitating the fraud or the lawyer becoming duped

or a conspirator.116 Accordingly, it is insufficient to merely adduce evidence of the existence of a

fraud and proof of an anterior consultation with a lawyer, as this does not establish that the latter

facilitated the former.117 Further, it is insufficient therefore to merely allege the fraud,118 to make

vague or generalised contentions119 or to surmise and conjecture.120 The Court may inspect any

relevant documents upon prima facie evidence that the lawyer was privy to fraud.

It includes legal advice provided in relation to crimes the client has already committed.121 However, it

does not include legal advice sought for a future illegal purpose.122

(b) Dominant

The purpose must be the dominant purpose, in that it is the ruling, prevailing or most influential

one.123 This is determined objectively124 at the time of the communication and requires consideration

106 Brunswick Hill Apartments Pty Ltd v CGU Insurance Ltd [2010] VSC 532 (Mukhtar AsJ), [29]. 107 Baker v Campbell (1983) 153 CLR 52 (Murphy J), 86-7; R v Bell (1980) 146 CLR 141 (Gibbs J), 145. 108 Attorney-General (NT) v Kearney (1985) 158 CLR 500 (Gibbs CJ), 515-6; Evidence Act 1995 (Cth), s 125(1)(b). 109 Attorney-General (NT) v Kearney (1985) 158 CLR 500 (Wilson J), 525. 110 Evidence Act 1995 (Cth), s 125(1)(a). 111 Varawa v Howard Smith & Co Ltd (1910) 10 CLR 382 (Griffith CJ), 385. 112

R v Bell (1980) 146 CLR 141 (Gibbs J), 147; Hodgson v Amcor Ltd (No 2) [2011] VSC 204 (Vickery J), [69]. 113 Freeman v Health Insurance Commission (1997) 78 FCR 91 (Finkelstein J), 96. 114 Commissioner, Australian Federal Police v Propend Finance Pty Ltd (1997) 188 CLR 501 (Brennan CJ), 514. 115 Freeman v Health Insurance Commission (1997) 78 FCR 91 (Finkelstein J), 96. 116 R v Shirose (1999) 133 CCC (3d) 257 (SCC), 294. 117 R v Shirose (1999) 133 CCC (3d) 257 (SCC), 294 118 Attorney-General (NT) v Kearney (1985) 158 CLR 500 (Gibbs CJ), 516. Commissioner, Australian Federal Police v Propend Finance Pty Ltd (1997) 188 CLR 501 (Brennan CJ), 514. 119 Commissioner, Australian Federal Police v Propend Finance Pty Ltd (1997) 188 CLR 501 (Kirby J), 591-2. 120 Southern Equities Corp Ltd (in liq) v Arthur Andersen & Co (1997) 70 SASR 166 (Doyle CJ), 174. 121 Reg v Cox and Railton (1884) 14 QBD 153. 122 Reg v Cox and Railton (1884) 14 QBD 153. 123 Federal Commissioner of Taxation v Spotless Services (1996) 186 CLR 404, 416.


of competing purposes.125 It must dominate all other purposes and thus it is insufficient if it is merely

a purpose or equal to other purposes.126 Accordingly, it will not be dominant if the client’s decision

would have been made irrespective of any intention to obtain legal services. However, having

additional lesser purposes does not preclude it.127 The mere fact that a document was sent to the

lawyer for legal advice does not necessarily dictate that that purpose was dominant.128

It may be possible that some parts of a communication (usually a document) will have been made for

the required dominant purpose while others were not. If the parts are severable then those made with

the required dominant purpose will be privileged and the others not. This may be the case with

annexures and enclosures of a document.129 However, it they are not severable then the whole

document will be privileged.130

(c) Examples of Insufficient Communications

Instructions to a lawyer may be insufficient because this is not necessarily a communication for the

purpose of obtaining advice/litigation.131 This is also the case for (i) documents which evidence

completed transactions (eg contracts, conveyances, and declarations of trust);132 and (ii) trust account

records which evidence the movement of trust moneys.133 Extraneous information volunteered by a

client in the course of seeking legal services is also not privileged.134 Detailed bills of costs containing

a history of the nature and order of legal work are likely sufficient, as they reveal matters central to

the lawyer-client relationship.135 However, less detailed bills may not be.136

Further, the client’s personal details are insufficient as these are mere collateral facts and thus not for

the required purpose.137 Such details include their address,138 phone number139 and identity.140

However, the latter will be privileged if it is so intertwined with the confidential communication that

disclosing it would disclose the content of the communication.141 This must be weighed against the

opponent’s right to procedural fairness142 and need to establish the lawyer-client relationship.

4. Privilege 124 GSA Industries (Aust) Pty Ltd v Constable [2002] 1 Qd R 146 (Holmes J), [28]; Howell v Macquarie

University [2008] NSWCA 26 (Campbell JA), [72]. 125 State of New South Wales v Jackson [2007] NSWCA 279(Giles JA), [75]. 126 Kennedy v Wallace (2004) 208 ALR 424 (Gyles J), [73]. 127 Sparnon v Apand Pty Ltd (1996) 68 FCR 322 (Branson J), 328. 128 AWB Ltd v Cole (2006) 152 FCR 383 (Young J), [118]. 129 Actew Corporation Ltd v Mihaljevic [2007] CSC 39 (Harper M), [42]. 130 Techfarm Pty Ltd v AXA Insurance Australia Ltd [2004] WASC 166 (Newnes M), [53] 131 Federal Commissioner of Taxation v Coombes (1999) 92 FCR 240 (FC), 31]. 132 Baker v Campbell (1983) 153 CLR 52 (Murphy J), 86. 133 Allen & Hemsley v Deputy Commissioner of Taxation (189) 20 FCR 576, 583; Cassaniti v Paragalli (2006) 229 ALR 416 (Barrett J). 134 Global Funds Management (NSW) Rooney (1994) 36 NSWLR 122 (Young J), 122. 135 Hodgson v Amcor Ltd (No 2) [2011] VSC 204 (Vickery J), [60-3]. 136 Aveling v UBS Capital Markets Australia Holdings Ltd (No3) [2005] CA 1320 (Lindgren J), [12]; Strategic

Financial and Project Services Pty Ltd v Bank of China [2012] FCA 327 (Robertson J), [11-4]. 137 Ex parte Campbell (1870) LR 5 Ch App 703 (James LJ), 705. 138 Ex parte Campbell (1870) LR 5 Ch App 703 (James LJ), 705. 139 Hamdan v Minister for Immigration & Multicultural & Indigenous Affairs (2004) 211 ALR 642 (Finn J), [20]. 140 R v Bell (1980) 146 CLR 41 (Stephen J), 155. 141 Federal Commissioner of Taxation v Coombes (1999) 92 FCR 240, [31] (FC); Z v New South Wales Crim

Commission (2007) 231 CLR 75, [12]. 142 R v Bell (1980) 146 CLR 141 (Stephen J), 155.


The client has the personal right to claim legal professional privilege over the communication.143 This

is absolute and cannot be qualified, except by clear statutory provision. It is grounded in public policy,

which determines its limits,144 and thus cannot be expanded by contractual provisions.145 It may be

asserted in both judicial and non-judicial proceedings, including administrative proceedings, dispute

resolution and search and seizure.146

The right may vest in persons other than the client in certain circumstances. These include: (a) entity

officers; (b) personal representatives; (c) liquidators; (d) successors in title; (e) trustee-in-bankruptcy;

(f) common interest third parties; and (g) joint interest third parties.

(a) Entity Officers

Where the client is an entity, the right is asserted by its officers or employees constituting it. Pursuant

to statutory privilege, the client includes its employees.147 However, general law privilege requires the

particular officer to be acting as the client.

(b) Personal Representatives

Upon the client’s death their right subsists and vests in their personal representatives, who may elect

to waive it. However, the privilege does not prevent evidence of privileged communications being

adduced to resolve issues relating to the client’s intentions and competence prior to death.148

(c) Liquidators

Where the client is an entity, their right will vest in an appointed liquidator and that person may waive

the right.149

(d) Successors in Title

The client’s right subsists for the benefit of successors in title to the party in an action relating to the

relevant interest.150

(e) Trustee in Bankruptcy

The client’s statutory privilege right may vest in the trustee-in-bankruptcy upon them becoming

bankrupt.151 However, the general law privilege right does not do this because it is a personal right of

the client and thus does not transfer to others.152

5. Exceptions

143 Baker v Campbell (1983) 153 CLR 52 (Murphy J), 85. 144 R v Bell (1980) 146 CLR 141. 145 Southern Cross Commodities Pty Ltd (in liq) v Crinis [1984] VR 697 (Young J), 702; Federal Commissioner

of Taxation v Coombes (1999) 92 FCR 240 (FC), [31]. 146 Baker v Campbell (1983) 153 CLR 52, 120. 147 Evidence Act 1995 (Cth), s 117(1). 148 d’Aice v Gutkovich (no 1) [2010] NSWSC 1336 (White J), [20]; Evidence Act 1995 (Cth), s 121(1). 149 Re Compass Airlines Pty Ltd (1992) 35 FCR 447 (Lockhart J), 455; Worrell Woods (1999) 90 FCR 264 (Finn J), 267-8. 150 Baker v Evans (1987) 77 ALR 565 (Pincus J), 568. 151 Evidence Act 1995 (Cth), s 117(1). 152 Re Steele (1994) 48 FCR 236; Bond v Tuohy (1995) 56 FCR 92; Worrell v Woods (1999) 90 FCR 264.


The client’s privilege will be lost where there is (a) waiver; (b) illegal & improper purpose; (c)

abrogation by statute; or (d) criminal defendants.

(a) Waiver

Privilege is lost where the client or lawyer with actual or ostensible authority waives their right in

relation to a communication.153 Waiver may be express or implied and the decision binds them.154

This is based on the ground that it would be unfair to the opponent to allow the client to maintain

privilege in these circumstances.155 Waiver of the right will apply only to the specified

communications, unless depriving the opponent of the others would be unfair.156

(i) Intentional

A client may waive intentionally waive their right to privilege through express or implied conduct.

(A) Express

Express waiver occurs where the client deliberately discloses the information orally or written.

Implied waiver occurs where the client does something inconsistent with the confidentiality otherwise

contained in the communication.157 This requires examination of the circumstances and disclosure of

the ‘gist or substance’ of the information is sufficient.158 The conduct will be sufficient if it places the

opponent in an unfair position.159

- Filing documents: waiver occurs where the client files documents in full with the court or serves it

upon another party.160 However, it will be insufficient to merely reference the document in

pleadings,161 an affidavit162 or a list of documents.163

- Legal advice: mere reference to the receipt of legal advice without disclosure of its substance will be

insufficient.164 Further, it may be insufficient to state the effect of the legal advice (eg lawyer

recommended X) without disclosure of the reasoning.165 It is a question of degree whether disclosure

has been to the extent that privilege is waived.166

- Proceedings against lawyer: Waiver is implied where the client initiates legal action against the

lawyer to enable to lawyer to respond to the claim. This includes a complaint to the designated local

153 Federal Commissioner of Taxation v Coombes (1999) 92 FCR 240, 255. 154 Meltend Pty Ltd v Restoration Clinics of Australia Pty Ltd (1997) 75 FCR 511 (Goldberg J), 523; Federal

Commissioner of Taxation v Coombes (1999) 92 FCR 240 (FC), [37]. 155 Goldberg v Ng (1986) 185 CLR 83; Attorney-General (NT) v Maurice (1986) 161 CLR 83. 156 Newcrest Mining (WA) Ltd v Commonwealth (1993) 40 FCR 475, 488. 157 Mann v Carnell (1999) 201 CLR 1, 1. 158 AWB Limited v Cole (No 5) (2006) 155 FCR 30. 159 Attorney-General (NT) v Maurice (1986) 161 CLR 475, 481. 160 Cadbury Schweppes Pty Ltd v Amcor Ltd [2008] FCA 88, [13-9]. 161 Attorney-General (NT) v Maurice (1986) 161 CLR 475, 481. 162 ACCC v Prysmian Cavi E Sistemi Energia SRL (No2) (2012) 287 ALR 760, [94-100]. 163 State of Victoria v Davies (2003) 6 VR 245, [29-30]. 164 Assistant Treasurer and Minister for Competition Policy and Consumer Affairs v Cathay Pacific Airways Ltd

(2009) 179 FCR 323. 165 Osland v Secretary to the Department of Justice (2008) 234 CLR 275 – where R issued press releasing saying lawyer recommended X but not anything else the court held this did not constitute waiver. 166 Bennett v Chief Executive Officer, Australian Customs Service (2004) 140 FCR 101, [6].


regulatory authority.167 Further, it is implied during search and seizure procedures where a lawyer

does not claim privilege within a reasonable opportunity.168

Partial disclosure of the contents of a privileged document will constitute waiver of the whole

document.169 However, it is insufficient where (A) a filed document merely references a privileges

document without mentioning its substance;170 or (B) disclosure is made that legal advice was

obtained for a forensic or commercial purpose, but not merely a reference to obtaining legal advice.171

Further, waiver does not occur upon disclosure to a third party (A) with common interest privilege

(see below);172 or (B) where the communication concerns a matter for which the lawyer is providing

legal services to both persons (see below).173

(ii) Unintentional

Waiver will not occur where it is clear that disclosure was unintended or without authority, in that a

reasonable person in the recipient’s position should have realised it was by mistake. However, waiver

will be found where the court is unable to restore the status quo.174 This will depend on the facts and

clients who make no effort to uphold confidentiality are more likely to be deemed to have waived

their right. It is relevant if the recipient of the information made a concerted effort to obtain it.175

Unintentional waiver may occur by accidently sending the communication to another. A solicitor who

receives material from another solicitor or anther which they know or reasonably suspect to be

confidential must not use that material.176 They must return, destroy or delete it immediately and

notify the sender.177 If they have part or all of the material then they must notify the recipient and not

read more.178

Unintentional waiver may occur by third parties overhearing communications. However, this is

unlikely where the client/lawyer took deliberate and careful steps to ensure confidentiality, had no

reason to suspect a third party would hear and the third party took deliberate steps to overhear.179

(b) Illegal & Improper Purpose

Privilege is lost where the information is in relation to pursuit of an illegal purpose.180 Pursuant to

statute, it is lost where it relates to commission of fraud, offence or act, or abuse of power.181

(c) Abrogation by Statute

167 Legal Profession Uniform Law Application Act 2014 (Vic), Sch 1, s 321. 168 Kennedy v Baker (2004) 135 FCR 520 (Branson J), [100-5]. 169 Bennett v Chief Executive Officer, Australian Customs Service (2004) 140 FCR 101 (Gyles J), 119. 170 Osland v Secretary to the Department of Justice (2008) 234 CLR 275 – where R issued press releasing saying lawyer recommended X but not anything else the court held this did not constitute waiver. 171 Secretary, Department of Justice v Osland (2007) 95 ALD 380, [20-1]. 172 Goldberg v Ng (19995) 185 CLR 83 (Toohey J), 106; Evidence Act 1995 (Cth), s 122(5)(c). 173 Evidence Act 1995 (Cth), s 1222(5)(b). 174 Hooker Corp Ltd v Darling Harbour Authority (1987) 9 NSWLR 538, 541. 175 R v Uljee [1982] 1 NZLR 561, 570-1. 176 Legal Profession Uniform Law Australian Solicitors’ Conduct Rules 2015 (Vic), s 31.1. 177 Legal Profession Uniform Law Australian Solicitors’ Conduct Rules 2015 (Vic), s 31.1. 178 Legal Profession Uniform Law Australian Solicitors’ Conduct Rules 2015 (Vic), s 31.2. 179 R v Uljee [1982] 1 NZLR 561, 576. 180 Attorney-General for the Northern Territory v Kearney and Northern Land Council (1985) 61 ALR 55 (Gibbs CJ), 64. 181 Evidence Act 1995 (Cth), s 125(5).


Privilege is lost where legislators abrogate it through clear words or necessary implication to that

effect within statute.182 This is because there is a presumption that Parliament does not intend to

impair existing substantive rights, such as legal professional privilege.183 It requires express and

unambiguous words184 in plain unequivocal language which is capable of only one meaning.185 Any

abrogation will likely be for a limited purpose and thus does not remove privilege altogether.186 It will

be insufficient that the provision indirectly abrogates187 or provides for a reasonable excuse for non-

compliance.188

Abrogation is implied where the statute expresses a general provision to answer, provide information

or produce documents and it appears that its character and purpose is not intended to be subjected to

any qualification.189 That intention is evinced where the purpose is to ensure a full investigation of

offences within the knowledge of persons who otherwise could not reasonably be expected to disclose

it.190

(d) Criminal Defendants

Privilege is lost pursuant to statute where the defendant is involved in criminal proceedings. They

may adduce the confidential information as evidence. However, this does not include confidential

communications made between the lawyer and an associated defendant or contents of confidential

documents prepared by an associated defendant.191

6. Assertion of Right

The privilege belongs to the client and thus is asserted by them. However, it is often asserted by the

lawyer on the client’s behalf, as they have a duty to ensure that a valid claim to privilege is not lost.192

It is assumed that a lawyer who does not claim privilege within a reasonable opportunity waives

privilege193 and failure to do so may render the lawyer liable in tort or contract to the client. 194

The general law right may be asserted in any stage of proceedings.195 The statutory right, however,

applies only to the adducing of evidence196 and thus not to any pre-proceedings stages, including

discovery or inspection.197 The client bears the onus of establishing privilege and it is presumed that

182 Daniels Corporation International Pty Ltd v Australian Competition and Consumer Commission (2002) 213 CLR 543, 553. 183 Baker v Campbell (1983) 153 CLR 52 (Deane J), 116-7. 184 Baker v Campbell (1983) 153 CLR 52 (Deane J), 116-7. 185 Commissioner of Inland Revenue v West-Walker [1954] NZLR 191 (Gresson J), 212. 186 Southern Equities Corp Ltd (in liq) v Arthur Andersen & Co (1997) SASR 166 (Bleby J), 188. 187 Commissioner of Inland Revenue v West-Walker [1954] NZLR 191 (Gresson J), 213. 188 AWB Ltd v Cole (2006) 152 FCR 382 (Young J), [49]. 189 Pyneboard Pty Ltd v Trade Practices Commission (1983) 152 CLR 328, 341. 190 Pyneboard Pty Ltd v Trade Practices Commission (1983) 152 CLR 328, 341. 191 Evidence Act 1995 (Cth), s 123(a)-(b). 192 Federal Commissioner of Taxation v Citibank Ltd Propend Finance Pty Ltd (1997) 188 CLR 501 (Kirby J), 589. 193 Kennedy v Baker (2004) 125 FCR 520, [100-5]. 194 Donellan v Watson (1990) 21 NSWLR 335 (Handley JA), 344. 195 Mann v Carnell (2000) 201 CLR 1. 196 Evidence Act 1995 (Cth), ss 118-9 197 Mann v Carnell (2000) 201 CLR 1.


communications of professional nature between lawyer and client relating to the subject matter of the

retainer is privileged.198

Police officers exercising search warrants must provide a reasonable opportunity for privilege to be

claimed and not inspect documents during that time. Documents which are claimed to be privileged

must be placed in a sealed container and placed in the custody of the clerk to the magistrate who

issued the warrant or another independent party agreed upon. Mere seizure of the documents without

reading them does not infringed privilege.199 Further, it may be acceptable for an officer to lightly

peruse a document to determine whether it may be privileged where there is nobody present to claim

privilege.200

7. Third Party Rights

A third party may have their own right to legal privilege in the same communications as the client.

This may be (a) common interest privilege; or (b) joint interest privilege.

(a) Common Interest Privilege

A third party has professional legal privilege in a client-lawyer communication disclosed to them in

which they have a common interest,201 in that their interest is identical or so closely related to the

client’s that treating them separately would be inappropriate.202 This may be a legal or commercial

interest and will occur where their interests are so close they could have used the same lawyer.203

Representation by the same lawyer is a significant factor, although not required.204 It will not occur

where the parties have conflicting or potentially adverse interests.205

Common interest privilege often occurs in cases of officers of the same company/group,206 an insured

and insurer,207 a company and its parent company,208 a plaintiff and their litigation funder,209 and a

liquidator and creditors.210

(b) Joint Interest Privilege

A third party has legal professional privilege in a client-lawyer communication where they joined in

making that communication. The privilege is held jointly by both as an inseverable right.211 Both

198 Kennedy v Wallace (2004) 208 ALR 424 (Gyles J), [65]. 199 Saunders v Commissioner, Australian Federal Police (1998) 160 ALR 469, 473. 200 JMA Accounting Pty Ltd v Commissioner of Taxation (2004) 139 CLR 537, [14]. 201 Goldberg v Ng (1995) 185 CLR 83. 202 Unilateral Investments Ltd v VMZ Acquisitions Ltd [1993] 1 NZLR 468 (Giles J), 279. 203 Bank of Nova Scotia v Hellenic Mutual War Risks Association (Bermuda) Ltd [1992] 3 Lloyd’s Rep 540 (Saville J), 542. 204 Bulk Materials (Coal Handling) Services Pty Ltd v Coal & Allied Operations Pty Ltd (1988) 13 NSWLR 689 (Giles J), 695; Network Ten Ltd v Capital Television Holdings Ltd (1995) 36 NSWLR 275 (Giles J), 279-80. 205 Ampolex Ltd v Perpetual Trustee Co (Canberra) Ltd (1995) 37 NSWLR 405 (Giles CJ), 410. 206 GEC Marconi Systems Pty Ltd v BHP Information Technology Pty Ltd [2000] FCR 593 (Lehane J), [6-12]. 207 Guinness Peat Properties Ltd v Fitzroy Robinson Partnership [1987] 1 WLR 1027. 208 Rank Film Distributors Ltd v ENT Ltd (1994) 4 Tas R 2281. 209 Rickard Constructions Pty Ltd v Rickard Hails Moretti Pty Ltd [2006] NSWSC 2234. 210 Southern Cross Airlines Holdings Ltd (in liq) v Arthur Andersen & Co (a firm) (1998) 84 FCR 472. 211 Ampolex Ltd v Perpetual Trustee Co (Canberra) Ltd (1995) 37 NSWLR 405 (Giles CJ), 412; Farrow

Mortgage Services Pty Ltd (in liq) v Webb (1996) 39 NSWLR 601 (Sheller JA), 608.


parties must consent to disclosure of the privileged information212 and neither can maintain privilege

against one another (cf statutory right below).213 It may arise with or without a joint legal retainer.

Whether joint privilege arises will depend on the facts. It may occur where the lawyer represents both

parties, such as an insurer and insured, but this is insufficient in isolation. It may also occur where a

person within a group of persons in a formal legal relationship makes a communication about a matter

that group shares an interest in. This could occur in the case of partnerships, joint ventures214 and

trusts.215

A party within the joint interest relationship may nevertheless make privileged communications with

the lawyer which will not be subject to that joint privilege.216 This is regardless of whether a joint

retainer is in place.217 This would require the person to establish: (i) purpose of communication was

seeking advice in individual capacity; (b) made clear to lawyer advice sought in individual capacity;

(c) persons sharing joint privilege knew, or ought to have known, the legal position; (d) lawyer knew,

or ought to have known communication in individual capacity; and (e) communication confidential.218

The statutory right of joint privilege allows privileged communications to be adduced without consent

of all parties, however.219

8. Inconsistency with Duty to Court

The duty is opposed by some, however, who argue that can be inconsistent with society’s general

ethical perceptions and thus decrease public confidence. It prevents information reaching the courts

and prevents courts from assessing whether the client is presenting perjured evidence based on the

lawyer’s representation. It risks lawyers’ perceptions of their moral obligations being distorted and

therefore then acting amorally. Further, it precludes innocent clients from relying on their

representatives vouching for their innocence credibly.220

C Case Law 1. Kalenik v Apostolidis [2005] VSC 27.

(a) Court

SC of Victoria – Hansen J

(b) Procedural history

(c) Material facts

212 Ampolex Ltd v Perpetual Trustee Co (Canberra) Ltd (1995) 37 NSWLR 405 (Giles CJ), 412; Farrow

Mortgage Services Pty Ltd (in liq) v Webb (1996) 39 NSWLR 601 (Sheller JA), 608. 213 Mercantile Mutual Insurance (NSW Workers Compensation) Ltd v Murray (2004) 13 ANZ Ins Cas 61-612 (Mason P), [41-2]. 214 Yunghanns v Elfic Pty Ltd 215 Krok v Szaintop Homes Pty Ltd (No 1) [2011] VSC 16. 216 Perry v Smith (1842) 152 ER 288; Rochefoucauld v Boustead (1896) 65 LJ Ch 794. 217 Perry v Smith (1842) 152 ER 288; Rochefoucauld v Boustead (1896) 65 LJ Ch 794. 218 Ford v Financial Services Authority [2012] 1 All ER 1238 (Burnett J), [40]. 219 Evidence Act 1995 (Cth), s 124. 220 All Dal Pont, pp 353-4.


- 1993: Parties in a de facto relationship;

- A worked in R’s business during relationship;

- 2000: Parties broke up – A initiated proceedings against R seeking orders adjusting in her favour the

interests in R’s property on the basis of their de facto relationship pursuant to Property Law Act 1958

Part IX;

- 2001: R and brother, Ken, entered proceedings against one another in relation to a partnership

dispute – Ken retained Dimo’s as his representation;

- A and Ken remained friends – A provided witness statement for Ken in settlement – A given

information about settlement;

- 2003: R and Ken settled the partnership dispute – terms were confidential – A given information

about settlement but Deed not disclosed to her;

- A retained Dimo’s as her representation;

- R lodged application to prevent Dimo’s from acting as A’s representation on the basis that they hold

confidential information from the partnership settlement;

(d) Issues

Whether there was a real and sensible possibility of the misuse of confidential information?

(e) Holdings

No.

(f) Law

- Lawyer may be prevented from acting for a client where there is a real and sensible possibility that

they will misuse confidential information from a prior proceeding – this may be conscious or

unconscious misuse: [57] – onus on applicant to establish: [55];

- Obligation of confidentiality owed by a lawyer to their client – not owed to the other party in the

action – thus the lawyer does not owe any duty to the opposition: [56];

- It is a severe choice to deny a party the services of their solicitor of choice – this is particularly so

when on the application of an adverse party to the solicitor rather than a former client: [56];

- Lawyer should be restrained where a reasonably informed member of public would conclude that

administration of justice requires lawyer be restrained from acting: [57];

(g) Application

- No real and sensible possible of misuse of confidential information from the partnership settlement

for following reasons:

- Different issues of law concerned and thus confidential information may not be relevant;


- A has knowledge of settlement in her own right and thus may be aware of the information

already: [48];

- A may obtain the relevant confidential information regardless through (i) inspecting the

public Court file from the statement of claim lodged with the Court; and (ii) discovery of

documents and interrogatories: [47];

- R failed to demonstrate how and in what way the confidential information is relevant to the

proceedings – failed to ID that information with any specificity

- Dimo’s owed obligation of confidence to Ken and not to R;

- Would be severe to deny A the solicitor of her choice – particularly since the application is by a

former adverse party rather than a former client;

- No reasonably informed member of public would conclude the administration of justice requires

Dimo be restrained from acting for A: [57];

(h) Order

Application dismissed with costs.

D Legislation

Evidence Act 1995 (Cth):

118 Legal advice

Evidence is not to be adduced if, on objection by a client, the court finds that adducing the evidence would result in disclosure of:

(a) a confidential communication made between the client and a lawyer; or

(b) a confidential communication made between 2 or more lawyers acting for the client; or

(c) the contents of a confidential document (whether delivered or not) prepared by the client, lawyer or another person;

for the dominant purpose of the lawyer, or one or more of the lawyers, providing legal advice to the client.

119 Litigation

Evidence is not to be adduced if, on objection by a client, the court finds that adducing the evidence would result in disclosure of:

(a) a confidential communication between the client and another person, or between a lawyer acting for the client and another person, that was made; or

(b) the contents of a confidential document (whether delivered or not) that was prepared;

for the dominant purpose of the client being provided with professional legal services relating to an Australian or overseas proceeding (including the proceeding before the court), or an anticipated or pending Australian or overseas proceeding, in which the client is or may be, or was or might have been, a party.