Australia: Legal Professional Privilege and Implied Undertaking

Legal Professional Privilege

Does your jurisdiction recognise or hold a concept of legal professional privilege?

Yes, in Australia there are two limbs of legal professional privilege; legal advice privilege and litigation privilege.

What is the basis at law of legal professional privilege in your jurisdiction?

Legal professional privilege exists under the common law. There is also a statutory form of privilege under the Uniform Evidence Acts¹, which is termed client legal privilege.

How does legal professional privilege operate in your jurisdiction in the context of:

…lawyers qualified in your jurisdiction?

Legal advice privilege applies to confidential communications between a lawyer and a client which are made for the dominant purpose of the lawyer providing or the client obtaining legal advice.

Litigation privilege applies to confidential communications between a lawyer and a client or third party (e.g. expert witnesses) which are made for the dominant purpose of use in anticipated or existing litigation.

Legal professional privilege extends to counsel and to communications with an employee or agent of a lawyer, even if they are a non-qualified person, such as an articled clerk.

…in-house lawyers?

Legal professional privilege can attach to communications between an in-house lawyer and their employer provided that the in-house lawyer is acting in their professional capacity as a lawyer. If an in-house lawyer is not sufficiently independent or has a non-legal role closely linked with their legal position, legal professional privilege may not apply to such communications.

…patent and trade mark attorneys?

Pursuant to the Patents Act 1990 (Cth) s 200 and the Trade Marks Act 1995 (Cth) s 229, communications between a registered patent or trade mark attorney and a client made for the dominant purpose of providing intellectual property advice is subject to privilege in the same way, and to the same extent, as a communication made for the dominant purpose of a lawyer providing legal advice to a client. This extends to foreign patent and trade mark attorneys.

Client-attorney privilege does not mirror the client-lawyer litigation privilege. However if a patent / trade mark attorney is providing assistance in the context of existing or anticipated litigation, confidential communications between either the lawyer and / or client and a patent or trade mark attorney (and confidential work product produced by a patent or trade mark attorney) for the dominant purpose of use in that litigation can be subject to litigation privilege.

…foreign qualified lawyers?

Legal professional privilege extends to communications between a foreign qualified lawyer and their client for the dominant purpose of obtaining legal advice and/or use in litigation. This includes where the contemplated litigation is conducted in foreign courts and where foreign legal advice is needed to assist in domestic proceedings.

What materials or work products does legal professional privilege apply to in your jurisdiction?

Communications may be oral, written or manually or electronically recorded. All manner of documents that comprise communications can be the subject of legal professional privilege. For example, notes and drafts, instructions and briefs, opinions, memoranda, minutes or other documents that relate to information required to advise the client or to conduct litigation on the client’s behalf, are protected.

The concept of "communications" includes actual lawyer/client communications, as well as documents from which the nature of privileged communications might be inferred or revealed. Therefore, any document prepared with a view to it being used as a communication which would attract privilege, even if it was not in fact so used, can be subject to legal professional privilege.

Privilege can attach to a copy of an unprivileged document, where the copy is brought into existence for the dominant purpose of obtaining legal advice, or for use in litigation.

What does legal professional privilege not cover in your jurisdiction?

There is no legal professional privilege for physical objects other than documents and there is no privilege for documents which are the means of carrying out, or are evidence of, transactions which are not themselves the giving or receiving of advice or part of the conduct of actual or anticipated litigation.

Further, communications between a client and lawyer which have a criminal or fraudulent purpose or are made in furtherance of an act that renders a party liable to a civil penalty, a deliberate abuse of a statutory power or conduct that is contempt or abuse of process of the court, are outside the scope of legal professional privilege.

How and who can waive legal professional privilege in your jurisdiction and what are the consequences of waiver?

Only the client can waive legal professional privilege. If the lawyer has the authority or consent of the client, they can waive legal professional privilege on behalf of the client.

Legal professional privilege can be waived expressly, for example, by disclosing protected material to a third party. It can also be waived impliedly, even if the party did not intend to do so, where the party acts in a way that is inconsistent with the maintenance of the confidentiality the privilege is intended to protect, for example where a party seeks to rely on the substance of advice in support of its case.

Once legal professional privilege is waived, it is irretrievable and there will be no recourse to any injunctions to restrain disclosure on the basis of privilege. There is considerable doubt as to whether a court has discretion to restore a privilege which has been waived.

Implied Undertaking

Does your jurisdiction recognise or hold a concept of the implied undertaking?

Yes, documents or information that are obtained or created through compulsory court processes cannot be used for a collateral or ulterior purpose unrelated to the conduct of the proceedings in which the documents or information were obtained.

What is the basis at law of the implied undertaking in your jurisdiction?

The implied undertaking exists under the common law, with the High Court of Australia decision Hearne v Street (2008) 235 CLR 125 being the leading authority on the content and scope of the implied undertaking.

How does the implied undertaking operate in your jurisdiction, including its scope (and any exceptions or limitations)?

The implied undertaking applies to all documents and information that a party to litigation is compelled, either by reason of a rule or a specific order of the court, to disclose or create. This includes documents inspected after discovery, answers to interrogatories, documents produced on subpoena, documents produced for the purposes of taxation of costs, documents produced pursuant to a direction from an arbitrator, documents seized pursuant to an Anton Piller order, and witness statements served pursuant to a judicial direction and affidavits.

The implied undertaking does not affect documents that are provided voluntarily. The implied undertaking ceases when material is used or read in open court and enters the public domain.

The most common person bound by the implied undertaking is the party and/or the lawyers who receive the documents or information from the other side. However, any person who receives the documents or information will be bound by the implied undertaking (for example, related entities, or expert witnesses).

How and who can release an individual from the implied undertaking in your jurisdiction?

As the implied undertaking is an obligation owed to the court, the parties cannot release themselves from the implied undertaking alone. Leave of the court is required and is only granted in special circumstances where there is a legitimate public interest in the proposed wider use of the documents or information.

How can the implied undertaking be breached in your jurisdiction and what are the consequences of such breach? What steps should you take if a breach comes to your attention?

The implied undertaking is breached if the relevant documents or information are used for any collateral or improper purpose or other than in relation to the litigation in which they were disclosed. For example, it is a breach of the implied undertaking if you use the documents or information for an unrelated commercial purpose. It will also be a breach if you disclose the documents or information to other persons who are contemplating similar proceedings, including related proceedings in another jurisdiction. It is up to the court to which the implied undertaking is owed to determine whether there has been a breach.

A breach of the implied undertaking constitutes a contempt of court, even if the breach is inadvertent. Ignorance in relation to the implied undertaking is not a defence to proceedings for contempt, although it may be a factor taken into account by the courts when determining the penalty. Where a non-party is concerned, it is not necessary to prove more than that the non-party knew that the documents or information originated from legal proceedings.

An allegation of a breach of the undertaking can be costly, time consuming, and a distraction. If established, it can have serious consequences. The court may reinforce or secure compliance by requiring the breaching party to give appropriate express undertakings, granting injunctions to restrain the breach or threatened breach, striking out any subsequent actions commenced through breach of the implied undertaking, or limiting access to the documents or information to only select individuals.