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ARTICLE · 14 APRIL 2022

External messaging and the risk of waiving privilege

Corrs Chambers Westgarth
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Lawyers and clients must be careful when drafting pleadings to ensure that legal professional privilege is not lost.

AustraliaLitigation, Mediation & Arbitration
Richard Flitcroft
Richard Flitcroft
Kaitlyn Wilkins-Fraser
Kaitlyn Wilkins-Fraser
Michael Murdocca
Michael Murdocca
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When a report is commissioned by a corporation's internal or external lawyers - to allow the entity to receive legal advice - frameworks need to be established to make clear that the dominant purpose in commissioning the report is one which will support a claim for legal professional privilege.

This means that its primary focus, and the focus of any entity handling such a report, must be to ensure that the report is clearly commissioned to assist in the client receiving confidential legal advice from its external or internal lawyers.

A recent case which aptly illustrates this point is TerraCom v ASIC [2022] FCA 208. PwC was commissioned by TerraCom's external lawyers to prepare a report (the Report) to enable the external lawyers to provide legal advice to TerraCom.

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