Publish Date: February 27, 2007
Generally, Legal Professional Privilege exists to protect communication between solicitor and client and pertaining to existing or potential legal action. Although privilege can be formally waived, the waiver of privilege can also be implied in the words or actions of a client, as recently seen in AWB v Coles.
In AWB v Coles, AWB was instructed to produce documents to the Royal Commission investigating the UN Oil-for-Food program. AWB refused, arguing that the documents in question were subject to Legal Professional Privilege. AWB then asserted that it had obtained legal advice pertaining to its operations in question and that such advice had effectively cleared it of any wrongdoing, as there was no evidence that AWB had any knowledge of money being channeled to Sadam Hussein’s regime, and that there was no evidence of any corruption.
Justice Young held that AWB’s LPP had been waived as AWB had not made mere reference to the fact that it had obtained legal advice, but then proceeded to disclose the essence of that advice. So, if a client says that his solicitor advised him that his claim is ‘most likely to succeed’ he has inadvertently waived privilege, likewise when a solicitor states that they advised their client that the case would most likely succeed, the solicitor too has waived privilege.
Recently, the courts appear to have taken a far less narrow view where Legal Professional Privilege is concerned. In Westpac Banking Corporation Limited v 789 Ten Pty Limited [2005] NSWSC 321 the NSW Supreme Court held that where solicitors provide information to auditors at the request of their clients, that information may not be protected by legal professional privilege, as would be the case where advice is provided in letters to the clients themselves. Similarly, the court has ruled that the working drafts and notes prepared by an expert are not considered to be covered by legal professional privilege. A very similar approach was taken in Ryder v Frohlich [2005] NSWSC 1342.
In Ingot Capital Investments Pty Limited v Macquarie Equity Capital Markets Limited [2006] NSWSC 530, Bergen J held that legal professional privilege does not apply in matters before the ATT. His honour stated that the litigation privilege of section 119 of the Evidence Act (Cth) 1995 only applies to common court litigation matters and not to matters heard before a tribunal, as they were not adversarial.
It is becoming clear that solicitors need to be far more vigilant in what they say and it would not do any harm for clients to be aware that a mere slip of the tongue could now deprive them too of legal professional privilege.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
