Legal professional privilege (‘the privilege’) protects the confidentiality of communication between a lawyer and his or her clients from subsequent disclosure.
What is the Scope of Legal Professional Privilege?
Firstly, the scope of the privilege, and its effect on communications, is set out in the Evidence Act 1995 (Cth) (‘the Act’). Any communication with the ‘dominant purpose’ of seeking legal advice, or to do with actual or anticipated litigation, is covered by the privilege.
To determine whether a communication is covered by the Act, courts have applied an objective test. This test was established in Esso Australia Resources v Commissioner of Taxation (1999) HCA 67. In that case, the court conveyed that a particular communication will have a ‘dominant’ purpose if it:
- predominates over all other purposes; and
- is the prevailing purpose.
Exceptions to Legal Professional Privilege
Though client confidentiality is of utmost importance to any lawyer, there are exceptions to the privilege.
Waiver
Firstly, the privilege serves to protect the client and their best interests. In saying this, the lawyer and client bear the onus of acting consistently with this privilege. Therefore, a client cannot act inconsistently, either impliedly or explicitly, with the confidentiality which the privilege is supposed to protect. In this instance, they will be deemed to have waived their privilege by virtue of section 122(3) of the Act.
Public Interest
Communication that, if disclosed, would be best for the purposes of public interest is not subject to the privilege.
Statutory Exclusions
The privilege is not immune from being removed or altered by legislation. In this, such a change will generally be seen when the privilege conflicts with the public interest.
To Sum Up
Confidentiality is the underlying foundation of any relationship between a lawyer and their client. With this in mind, it is only right for the client to be bestowed such a privilege. In essence, it shields them to a large extent from any unjust disclosure. Regardless, it is important for all lawyers, and clients, to understand the boundaries of legal professional privilege.
If you need any legal assistance for any confidentiality matters, our commercial lawyers are here to help! Just contact us at 1300 337 997.
Daniel is a legal intern at OpenLegal, placed in our legal content team. He is currently studying a Bachelor of Laws at the University of Technology Sydney. Daniel's interest lies in economics and media/startup law.
Phil is a director at OpenLegal. He has over 16 years experience working in private practice and in-house counsel in Sydney and London, giving him expertise in employment law, IP, finance, leases, dispute resolution, insurance and contracts.
