Third parties are frequently appointed to administer construction contracts. Sometimes they are appointed as agents of the principal for all purposes. More common is the appointment of a Superintendent exercising a dual agent and independent certifier role.

As demonstrated in Built Environs WA Pty Ltd v Perth Airport Pty Ltd [No 5] [2021] WASC 237, the particular categorisation of the appointed third party will have a bearing on whether sharing documents with them can constitute imputed waiver of legal professional privilege.

In this case Perth Airport's solicitors sent documents to an independent certifier, APP, which had been engaged to act partly as Perth Airport's agent and partly as an independent assessor. During discovery in an extant proceeding, Perth Airport redacted some of those documents to prevent disclosure of information that it claimed was privileged, and Built Environs sought full disclosure on the grounds that sending the documents to APP constituted imputed waiver.

Justice Kenneth Martin held that whether sending documents to a third party appointed to administer a construction contract constituted imputed waiver was influenced by the role of the third party. Where the documents were provided to, or emanated from, a Superintendent acting in an independent certification capacity, then the documents might no longer be protected by the rules of legal professional privilege. However, if the recipient was not acting in that capacity, but was acting as the principal's agent when receiving or sending the documents, then privilege might not be waived.

In this case, it was relevant that APP was appointed as Perth Airport's agent when not acting as independent certifier, and in the role of agent it owed to Perth Airport contractual and equitable duties of confidentiality. In these circumstances Justice Kenneth Martin concluded that disclosure to an agent or to a consultant, in circumstances of confidentiality, was not inconsistent with the maintenance of privilege over the parts of legal advice recorded in the documents.