Although the Evidence Act 1995 (Cth) has been around for over 15 years now, and of course the common law in relation to legal professional privilege for years longer, challenges to claims for privilege only seem to be increasing. Partner, Anne Freeman, examines two recent Supreme Court of NSW decisions.

In Transgrid v Members of Lloyds Syndicate, the issue was whether documents produced under subpoena by a consultant to Transgrid were privileged from production in circumstances in which the consultant had been provided with copies of correspondence between Transgrid and its lawyers, and in one case, a letter between another consultant retained by Transgrid and Transgrid’s lawyers.

Central to the determination of the matter was whether the subpoenaed consultant was relevantly an agent for the purpose of the definition of “client” in section 117 of the Evidence Act.

Reference was made to the NSW Court of Appeal decision in Meteyard v Love, in which it was held that independent consultants engaged by an insurer to investigate a loss were agents of the insurer. In light of that, Justice Ball considered that if the purpose of a communication between a client and a third party such as an independent consultant is to enable the third party/ consultant to assist the client in some way, and the third party/consultant has no interest in the communication other than to provide that assistance, then that third party/consultant is acting as the agent of the client for the purpose of that communication.  

Included in the consultant’s scope of retainer was relevantly to assist to negotiate and manage contract disputes on behalf of Transgrid and to manage the construction project.

His Honour found that the consultant had received copies of the communications as agent for Transgrid, noting that many of the letters were prepared by Transgrid’s lawyers to advise it on claims under the construction contract and that the evidence was that the communications had been provided to the consultant so that it could provide assistance in relation to those claims.  

As a result, the claim for privilege was upheld and the documents produced could not be inspected.  

Maintenance of such a privilege claim will be reliant upon evidence of the scope of work to be undertaken by the third party/ consultant and, as always, the purpose of the relevant communications.  

The issue for Justice White in Fenwick v Wambo Coal Pty Limited was whether there had been a waiver of privilege over legal advice provided to the defendant because of the discovery by the defendant of a draft letter from the defendant to the plaintiff which referred to the legal advice.

The draft letter relevantly provided as follows:  

Wambo Coal referred your email and previous correspondence to its lawyers for legal advice on this issue. The legal advice Wambo Coal received is as follows:

  1. There is a registered right of way across Lot 1 in DP110084 and Lot 2 in DP1100874. This is depicted as the ‘Existing R.O.W.’ on the attached plan. This is the right of way you use to access and egress your land, and Wambo Coal will continue to observe to this right of way.
  2. In relation to the right of way you have claimed to cross Lot 83 in DP548749, depicted as the ‘R.O.W. in Question’ on the plan, Wambo Coal has been advised that Lot 83 is not encumbered with the right of way you are claiming. A copy of the relevant title is attached. The only right of way registered over Lot 83 is in relation to Lot 82, which is also owned by Wambo Coal.

It would appear that you do not have a legal right of way across Lot 83. Therefore Wambo Coal cannot allow you to enter Lot 83 and you must not do so. In the circumstances, Wambo Coal does not intend to repair the crossing of South Wambo Creek situated in Lot 83…”

The draft letter was never sent. It was, however, discovered by the defendant and produced for inspection based upon the view that it was not privileged. Accordingly, it could not be argued that the production of the document was inadvertent, unintentional or mistaken. But the defendant did argue, first, that the substance of the legal advice was not disclosed, such that the discovery of the draft letter did not amount to a waiver, and second, if it was so disclosed, that the production of the document on discovery was under compulsion of law, i.e. not voluntary.

In determining the first argument, his Honour summarised the authorities as to whether the substance of the advice had been disclosed. His Honour concluded that the “balance of authority is that at least an express or implied summary of legal advice received amounts to disclosure of the substance of the advice”. (See the Authorities on disclosure table opposite, for a review of some of the decisions)  

Justice White concluded that the draft letter disclosed not only what is said to be the conclusions of the legal advice but the reasoning behind those conclusions. Therefore there had been a disclosure of the substance of the legal advice.  

The question then became whether the disclosure had been voluntary. Justice White found that the discovery of the document was under compulsion of law but that production of the document for inspection was not necessary if the draft letter itself was privileged. His Honour’s view was that the defendant could have claimed privilege over the draft letter as adducing evidence of the draft letter would have resulted in the disclosure of confidential privileged communications between the defendant’s lawyers and their client.  

Even though the defendant had taken what his Honour considered to be a mistaken view that it could not claim privilege over the draft letter, it could not be said that the disclosure of the letter was not knowing and voluntary. As a result, the legal advice had to be produced for inspection by the plaintiff.

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