It is reasonably common in litigation practice that parties will refer to communications or advice that they have exchanged with previous or present solicitors, which are typically subject to legal professional privilege.
Sometimes, when mention is made of privileged documents in an affidavit or pleading, the opposing party will reflexively request those privileged documents under Rule 222 of the Uniform Civil Procedure Rules 1999 (Qld) (UCPR) and posit that the privilege attaching to those documents has been impliedly waived.
This note is to provide a quick reference in relation to when privileged documents likely will and won’t need to be disclosed.
Firstly, the operation of Rule 222 UCPR by itself does not displace or override legal professional privilege.1 Accordingly, it is not appropriate to request privileged documents for the sole reason that they have been mentioned in an affidavit or pleading.
Legal privilege over a document will be impliedly waived where a party acts in a way that is inconsistent with the maintenance of that privilege (whether or not they have intended to waive it).2 The practical function and rationale of this principle is that it is unfair for a party to utilise or rely upon a particular document to prove up some factual issue in its case but at the same time protect the content of that document from the scrutiny of the opposing party.3
It is to be noted that the primary issue of inconsistency of conduct is ultimately a question of fact and degree to be resolved in light of all the circumstances.4 With that caveat, useful rules of thumb are retrievable from the case law.
The mere reference to a privileged document in an affidavit in circumstances where the document’s content is not described in the affidavit, nor is otherwise in issue in the proceeding, is not inconsistent with the maintenance of privilege.5
Sometimes the opposite situation will occur where the privilege-holding party has put in issue on the pleadings a fact to which a privileged document would be relevant. This might arise in the context of cases involving an issue of state of mind, which may have been affected by the receipt of privileged legal advice.
Merely raising an issue on the pleadings to which a privileged document would be relevant, but without referring to that document or putting its contents in issue, is not enough to waive privilege.6
For instance, an applicant might be seeking leave to withdraw admissions deemed to be made by not responding to a notice to admit in time. Relevant to that application is an explanation of the applicant’s delay in furnishing its response.
The applicant produces an affidavit which conveys the circumstances of the delay but, in the course of that explanation, also refers to an event in which the applicant emailed to its solicitor a document which contained a draft response to the notice. That document is subject to litigation privilege.
Seeing the reference to the document in the affidavit, the other party seeks disclosure of the document on the basis that it is “part of the reason” why the applicant did not respond in time.
It is unlikely that an implied waiver has occurred because the document is merely background to the applicant’s case, which relies upon proving an excusable delay and not the contents of the document.
The same outcome vis-à-vis waiver is likely where the document is mentioned and its contents are described in the affidavit but the document remains irrelevant to the party’s case.7
By contrast, privilege is likely to have been waived in the following circumstances:
- Where the contents of the document have been put in issue on the pleadings;
- Where the document has been reproduced in full in an affidavit;
- Where a fact has been put in issue by the privilege holder to which the document would be relevant and the document’s contents are described or relied upon in a subsequent affidavit or particulars.8
To recapitulate, the following guiding principles may be of assistance in determining whether a party may maintain privilege:
- The overarching principle is that intentional conduct which is inconsistent with the maintenance of privilege will create an implied waiver of privilege.
- The operation of UCPR Rule 222 does not override legal professional privilege.
- Merely referring to a privileged document in an affidavit or pleading, or even describing its contents, will not (without more) waive the privilege.
- Merely putting in issue a factual matter about which a privileged document is relevant also will not (without more) waive the privilege.
- Conduct by which a party purports to rely upon the content of a privileged document to prove its case will likely waive the privilege.
- In the same vein as point 5 above, putting in issue the content of a privileged document, as opposed to putting in issue a fact to which issue a privileged document would be relevant, or otherwise seeking to rely upon it in some way that lays it open to scrutiny will likely waive the privilege.
Footnotes
1 Balnaves v Smith [2008] 2 Qd R 413, 416 [12].
2 Mann v Carnell (1999) 201 CLR 1, 13 [29].
3 Queensland Local Government Superannuation Board v Allen [2016] QCA 325, [73].
4 Osland v Secretary, Department of Justice (2008) 234 CLR 275, 297 [45]. However, those considerations of fairness supporting the waiver must go beyond what the High Court referred to in Mann as “some overriding principle of fairness operating at large”. For example of such, in which the concerns of fairness contained in the circumstances were considered to be too nebulous to enliven an implied waiver, see Enkelmann v Stewart [2023] QCA 155.
5 Allen, [6].
6 Council of the New South Wales Bar Association v Archer (2008) 72 NSWLR 236, [48]. Note also, merely pleading a non-admission to another party’s allegation will not amount to putting such a matter in issue: Allen, [71].
7 Osland; Sanrus Pty Ltd v Monto Coal 2 Pty Ltd [2019] QSC 144.
8 Eg, Commissioner of Taxation v Rio Tinto Ltd (2006) 151 FCR 341, 362 [72].
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