Legal Professional Privilege (LPP) is a rule of law that protects communications between clients and their legal practitioners from disclosure.

There are two types of LPP - advice privilege and litigation privilege:

  • Advice privilege protects legal advice given by a lawyer to a client; and
  • Litigation privilege protects communications that relate to actual or contemplated litigation or court proceedings.

The purpose of LPP is so that clients can speak openly and freely with their lawyer and provide relevant information without the fear that this will be relayed without their permission to another person or in proceedings and used against them.

LPP can only be waived in limited circumstances. For example, LPP may be waived when a client agrees for it to be waived, where it is in the public interest to disclose the information, a law provides the privilege is waived or the communication is for the purpose of facilitating a crime.

LPP and the Coronial setting

What is not commonly understood is that litigation privilege does not operate in the same way in coronial proceedings. This is for a number of reasons:

  • The rules of evidence do not apply and the coroner may inform themselves as they deem appropriate;
  • Coronial findings are not determinative of the rights of the parties or other persons; and
  • The proceedings are inquisitorial and not adversarial.

There is limited case law explaining the operation of legal professional privilege in the Coronial setting and just one where a coroner expresses a clear view on the operation of litigation privilege. The Coroner in the Inquest into the Death of Saxon Bird [1] found that the primary rationale for litigation privilege is the contribution it makes to adversarial litigation.

That is, litigation privilege can be distinguished from advice privilege as it facilitates a process rather than protects the relationship between client and lawyer. The Court held that as an inquest is inquisitorial in nature the rationale for litigation privilege does not extend to an inquest. The Coroner however stated that advice privilege operates to its full extent in an inquest.

It has been accepted that advice privilege is an extension of the common law rules of natural justice. The right to advice privilege will not be taken away from a client unless there are clear statutory provisions that purposely revoke the right or privilege.

It is now well established that despite not being able to rely on litigation privilege in the Coronial setting, the common law rules of natural justice still apply. In the case of Annetts v McCann [2] the High Court found that there was a legitimate expectation that interested parties should be afforded natural justice, in particular the right to be heard where their interests although not legal, could be prejudiced by adverse findings. In making this decision the High Court disagreed with the decision of the Full Federal Court who had held that the because a person’s legal rights or obligations could not be prejudiced by the coronial process that the family of the deceased had no right to be represented in the inquest 

The Victorian Supreme Court, in Danne v The Coroner, [2012] VSC 454 has held that conditions imposed forcing a person to waive LPP in the coronial setting, even where this would assist the Coroner in the conduct of the inquest, will not be lawful.[3] The Court stated that even though the rules of evidence do not apply to a coronial inquest the Act does not intend the consequence of this to be a warrant for the coroner to ignore the principles of fairness.[4]

Conclusion

It is important to be aware that the coronial process is inquisitorial rather than adversarial and the rules of evidence do not apply. Further, as the findings of the coroner are not determinative of parties’ rights, the litigation privilege arm of LPP appears not to apply.

As the rules of natural justice apply in coronial proceedings communications between lawyers and their clients are protected by the advice privilege arm of LPP. Lawyers and their clients can still engage in frank discussions without fear of being required to disclose the content of those discussions. The case law also finds that this privilege cannot be revoked by interpretation of statutory provisions where there are no clear words or intentions to revoke the privilege.