What does privilege mean?

Wednesday, 29 Mar 2017

No doubt you have heard about parties to court proceedings claiming “privilege” over certain documents. You may have also seen correspondence from a lawyer labelled “Subject to client legal privilege” or “Subject to legal professional privilege”.

But what does it mean?  Privilege is the right to claim non-disclosure and confidentiality over certain documents which would otherwise need to be disclosed in the course of litigation.  Generally, privilege attaches to confidential communications made between a lawyer and a client if the communication was made for the dominant purpose of giving or obtaining legal advice (“advice privilege”), as well as communications made for use in existing or contemplated litigation (whether with the client or a third party) (“litigation privilege”).

The doctrine of privilege allows a lawyer to have open, honest and frank communications with their client, by encouraging the client to disclose all relevant facts and circumstances about their matter, which of course would result in the lawyer being able to provide proper advice and representation – the client need not worry about the content of the legal advice being disclosed to other people.

Although, allowing a party to claim privilege over a document is at odds with the principle that “all evidence which reveals the truth should be available for presentation to the Court”: Baker v Campbell (1983) 153 CLR 52, 69.

So there are certain circumstances in which privilege will be lost, or waiver of the privilege will be implied by the circumstances. 

For example, a party claiming privilege will lose that right over a document if they engage in conduct inconsistent with the maintenance of confidentiality in the relevant communication, as was shown in a recent Federal Court matter where a party to the proceedings disclosed to a third party the fact that legal advice had been obtained, and the general nature of that legal advice (but not the substance of the legal advice).  The Court considered the content of the disclosure, the facts and circumstances in which the disclosure was made, and the purpose of making the disclosure.  It held that the context in which the document’s contents were disclosed was not an implied waiver, therefore the document retained its privilege: College of Law Limited v Australian National University [2013] FCA 492.

Also, the High Court has held that if documents, which a party is claiming are privileged, are accidentally released (or otherwise disclosed) to the other party during the conduct of court proceedings, then the privilege should be maintained and the mistake should be corrected by the Court ordering the recipient to return the documents (if the recipient had otherwise refused to do so): Expense Reduction Analysts Group Pty Ltd & Ors v Armstrong Strategic Management and Marketing Pty Limited & Ors [2013] HCA 46

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