A general principal in law is the doctrine of legal professional privilege. This refers to the notion that there is a protection of confidential communication between clients and lawyers.[1] There is also no obligation to disclose the contents of communications and documents between clients and lawyers.[2]

Broadly, legal professional privilege can be split into two categories:  advice privilege; and litigation privilege.

Advice Privilege

This is set out in s 118 of the Evidence Act 1995 (NSW) where:

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.

Litigation Privilege

This is set out in s 119 of the Evidence Act 1995 (NSW) where:

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.

Exception to Legal Privilege

As always, there are exceptions to the rules of privileges. One of these exceptions applies where there are joint clients (I.e. more than one) in one matter, who all receive retain the lawyer for the purpose of retaining that lawyer’s advice.

For civil proceedings, if joint clients have jointly retained a lawyer prior to commencement of any proceedings, one of the parties is not compelled from disclosing communication or any documentation.[3]

What this means is that the legal privilege of one of the parties’ who were jointly retained would not be able to waive the privilege of all clients unilaterally. For the privilege to be waived, all holders of the privilege, being all the clients, must agree to waive that privilege.

Exception to the Exception!

In the case of Equititrust Ltd v Equititrust Ltd [2016], Her Honour, Markovic J commented that whilst there is no privilege attached to communications between the joint clients separately, in the event that the parties collective do not disclose privileged information, they are in fact entitled to privilege that privilege!

In simple terms, what Her Honour is saying is that even though joint clients may not receive the benefits of legal privilege separately, if the clients agree to not disclose privilege information, they do not have to on the basis that they consent to as a collective. This is known as joint privilege.

Another exception to the waiver is common interest privilege. Common interest privilege, not to be confused with joint privilege, is only available if communications/documents were already disclosed to a third party and that party has sufficient common interest with the parties of the privileged information.

In Farrow Mortgage Services Pty Ltd v Webb and Ors [1996], His Honour Sheller JA stated that ‘a mere common interest in the outcome of litigation will be sufficient to enable any party with that interest to rely on it’. However, it is hard to ascertain what ‘sufficient’ common interest is and that will be dependent on a case-by-case basis. In light of this, the determination for what constitutes to sufficient will need to take into consideration the facts of the matter. 

Should you have any concerns about the waiver of privileged material, please feel free to reach out to Longton Legal for advice.

[1] Equititrust Ltd v Equititrust Ltd [2016] FCA 738, 11.

[2] Evidence Act 1995 (NSW) s 118.

[3] Evidence Act 1995 (NSW) s 124.

*Disclaimer: This is intended as general information only and not to be construed as legal advice. The above information is subject to changes over time. You should always seek professional advice before taking any course of action.*