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2. What is legal privilege?

2.1​This chapter provides an overview of the general law of legal privilege before detailing the difference between common law and legislation.

2.2​In the ordinary course of events, people are entitled to conduct their affairs privately, without state interference. However, to settle a dispute or determine issues in contention, courts and investigative bodies can compel people to disclose their private communications with others. This is because ‘the public interest in discovering the truth prevails over the private duty to respect confidence’.[11]

2.3​Legal privilege protects confidential communications between a client and their lawyer from this power to compel disclosure. As Justices Stephen, Mason and Murphy explained in Grant v Downs, legal privilege ‘enhances the administration of justice by facilitating the representation of clients by legal advisers, the law being a complex and complicated discipline.’ Keeping their communications confidential promotes the client’s ‘full and frank disclosure of the relevant circumstances’ to the lawyer, which in turn ensures the client is well advised and represented.[12]

2.4​The common law on legal privilege applies unless legislation replaces it. The Evidence Act 2008 (Vic) governs the application of legal privilege in Victorian court proceedings and associated preliminary processes,[13] such as pre-trial discovery. The common law still largely operates in relation to investigative bodies, such as WorkSafe Victoria and the Transport Accident Commission.

2.5​Under both the common law and legislation, legal privilege is absolute.[14] This means it offers unqualified immunity from disclosure, subject to any overriding public interest. This can be contrasted with qualified privilege, which parliaments across Australia have granted to communications between clients and other professionals, and which can be more easily displaced by competing considerations, such as the need for courts to reach a decision about facts or law in determining a case.[15]

2.6​If Parliament wishes to override legal privilege, it must express a clear intention to do so.[16] Across Australia, legal privilege is often curtailed in the case of Royal Commissions and integrity and anti-corruption bodies,[17] where the public interest in uncovering the truth is deemed more important than the rights of participants to withhold their confidential legal information.

Common law

2.7​At common law, legal privilege is known as legal professional privilege.

2.8​Legal professional privilege applies to confidential communications made between a client and a lawyer for the dominant purpose of legal advice or litigation, unless privilege is waived or an exception applies. The extent to which third parties fall within this privileged relationship depends on several factors.

What are confidential communications?

2.9​It is ‘an essential element in a claim for legal professional privilege’ that the material in question is, ‘so far as the person from whom disclosure is concerned, confidential’.[18] If material is made for a non-confidential purpose, legal professional privilege does not apply because privilege ‘exists to secure confidentiality in communications between a legal adviser and the client … and can have no application in relation to a document the purpose of which is to communicate information to others’.[19]

2.10​Communications may be written or oral but ‘privileged communications are frequently in writing’.[20] The purpose of a particular communication is ‘to be determined by reference to the content of the [communication] in its context, and the relevant evidence relating to it’.[21] It follows that privilege can apply to some communications but not others, in any given conversation or record of a conversation.

Who is a client and who is a lawyer?

2.11​A client is a person or body who engages a lawyer to provide legal services, or employs a lawyer.[22] A lawyer is someone who has been admitted to practice and is subject to professional standards.[23] Legal professional privilege may attach to in-house lawyers, as long as the lawyer is acting in their capacity as a lawyer and is sufficiently independent.[24] ‘Independence’ requires that lawyers’ other non-legal duties, interests or loyalties (for example, commercial interests) to their client do not influence their professional legal advice.[25]

2.12​Privilege belongs to the client, not the lawyer, meaning the lawyer cannot ordinarily waive it without the client’s consent.[26] In addition, the lawyer has a duty to do their best to ensure that a client’s ability to claim privilege is not lost.[27]

2.13​The privilege must be claimed by the client, or by their lawyer on their behalf, for the court to consider it in any given case.[28] And the client bears responsibility for establishing privilege if they seek to rely on it.[29] To sustain a claim of privilege, the client ‘must prove the facts that establish that it is properly made’ and the ‘evidence must reveal the relevant characteristics of each document in respect of which privilege is claimed’.[30]

What is the dominant purpose?

2.14​Purpose means ‘the reason why the [communication] was brought into existence’,[31] and this is a question of fact.[32]

2.15​Whereas privilege once applied when ‘one of the purposes’ of a communication was legal, and then subsequently applied when the ‘sole purpose’ of a communication was legal,[33] it now applies when the ‘dominant purpose’ of a communication is legal.[34]

2.16​As Justice Kenny clarified in Commissioner of Taxation v Pratt Holdings, it is not enough that the ‘primary’ or ‘substantial’ purpose of a communication is legal advice or litigation. The dominant purpose means ‘the ruling, prevailing, paramount or most influential purpose’. Consequently, if ‘two purposes are of equal weight, neither is dominant in the relevant sense’.[35]

2.17​In Commissioner of Taxation v Pratt Holdings, the court held that documents prepared by accountants to structure a transaction tax-effectively were not privileged. Even though they were later provided to lawyers to provide advice on, the dominant purpose of the documents was to achieve a favourable tax outcome.[36]

2.18​In AWB Ltd v Cole, documents prepared for corporate reputation management, media and internal governance were not privileged as they too lacked a dominant legal purpose.[37]

What is legal advice and litigation?

2.19​To attract privilege, ‘the lawyer’s advice must satisfy the description of professional advice given by a lawyer in his or her capacity as such’.[38] For this reason, privilege will not ordinarily apply to administrative documents (such as invoices or costs disclosures) or ‘things lodged with a legal adviser for the purpose of obtaining immunity from production’.[39]

2.20​The courts have recognised there is ‘a continuum of communication’ between a client and their lawyer, and that privilege extends beyond communications about the law. Privilege will protect ‘advice as to what should prudently and sensibly be done in the relevant legal context’.[40]

2.21​In relation to litigation privilege, the courts have held that privilege will protect communications when litigation is ‘actual or likely’,[41] ‘reasonably anticipated’,[42] or ‘a real prospect’.[43]

2.22​In Grant v Downs, when an inpatient died after escaping from a mental health facility, reports were prepared for investigative and operational purposes. The court found that the nature of the incident made it likely that litigation was reasonably anticipated at the time those reports were made, but the claim for privilege failed because litigation was just one of several material purposes for the reports.[44]

Waiving privilege

2.23​A person who is entitled to the benefit of legal professional privilege may waive privilege,[45] expressly or by implication.[46]

2.24​People frequently waive privilege ‘deliberately and intentionally’,[47] including when disclosing privileged communications in court, the media or some other public forum in which they are defending their behaviour.

2.25​However, the court will also deem a person to have waived privilege when they act in a manner that is ‘inconsistent with the maintenance of the confidentiality which the privilege is intended to protect’, even though they did not intend to waive privilege.[48]

2.26​In Attorney-General (NT) v Maurice, Justices Mason and Brennan explained, ‘An implied waiver occurs when, by reason of some conduct on the privilege holder’s part, it becomes unfair to maintain the privilege.’ [49] Chief Justice Gibbs expanded on this, stating that ‘whether a waiver should be implied depends on whether it would be unfair or misleading to allow a party to refer to or use material and yet assert that that material … is privileged from production’.[50]

2.27​Referring to the existence of privileged material without revealing its contents did not waive privilege in Attorney-General (NT) v Maurice,[51] nor did sharing privileged information for a limited, confidential purpose in Mann v Carnell.[52] Whereas revealing legal advice to justify one’s conduct to an investigative body did waive privilege in Goldberg v Ng[53] and AWB Ltd v Cole.[54] In the latter case, revealing some privileged information resulted in a waiver of privilege over any ‘associated material which underpinned the legal advice’.[55]

Exceptions to privilege

2.28​Communications made for the purpose of facilitating a fraud, crime or civil offence cannot be protected by privilege.[56] This is the case even if the lawyer did not know about the client’s unlawful intent at the time. As the courts have observed, ‘it is no part of a solicitor’s duty “to advise [a] client as to the means of evading the law”’.[57]

2.29​In R v Bell, the High Court held that privilege will not apply when a higher public interest overrides it. In that case, the Family Court had ordered a woman to return her child to her ex-husband on the basis that it was in the child’s best interests, but she had failed to comply. The High Court then compelled the woman’s lawyer to reveal the woman’s address, even though she had given it to him in confidence. As Justice Stephen explained, allowing the claim of privilege in this case would have subverted ‘the purpose of that privilege, which is to further and not to impede the administration of justice’.[58]

When are communications with third parties privileged?

2.30​Privilege attaches to communications between a client and a lawyer, and agents of either.[59] Agents—such as employees or interpreters[60]—step into the shoes of the client or lawyer, and do not independently ‘consider and act upon’ the communications exchanged.[61]

2.31​The extent to which (non-agent) third parties are included within the privileged client-lawyer relationship, is more contested. Until 2004, the prevailing view was that third parties could fall within litigation privilege, but not legal advice privilege.[62] As lawyers frequently solicit information from subject-matter experts and other third parties to support their client’s case in court, the inclusion of third-party communications made in contemplation of litigation has long been deemed ‘a corollary of the common law mode of trial’.[63]

2.32​In 2004, however, the Full Court of the Federal Court of Australia held in Pratt Holdings v Commissioner of Taxation that communications between a third party and a client or a lawyer may also fall within legal advice privilege. As Justice Stone explained:

The coherent rationale for legal professional privilege developed by the High Court does not lend itself to artificial distinction between situations where that expert assistance is provided by an agent … and where it is provided by a third party … Provided that the dominant purpose requirement is met I see no reason why privilege should not extend to the communication by the expert to the client … Courts would need to take into account exactly what function was served by the expert advice and whether it was really required in order to instruct the legal advisers fully.[64]

2.33​In Commissioner of Taxation v PricewaterhouseCoopers, Justice Moshinsky followed the decision in Pratt Holdings, highlighting Justice Stone’s observation above, and the following observation of Justice Finn:

The important consideration is the nature of the function the third party performed for the client. If that function was to enable the client to make a communication necessary to obtain legal advice, privilege may attach to a documentary communication authored by the third party. The third party has been ‘so implicated’ in the communication made by the client to its legal adviser as to bring the third party’s work-product within the rationale of legal advice privilege.[65]

2.34​It is now clear that third-party communications may fall within legal advice privilege. However, the circumstances in which they will be deemed necessary to obtain legal advice are narrower than the circumstances in which they will be deemed necessary to prepare for litigation. After repeating Justice Finn’s warning about the need to take care when evaluating the purpose of third-party communications in a non-litigation setting, Justice Moshinsky reiterated that non-legal advice given alongside legal advice ‘will rarely be capable of attracting privilege’ because the non-legal advice will often have ‘a distinctive function and purpose in the client’s decision-making’.[66]

2.35​The difficulty of applying these tests to integrated legal assistance services is discussed at paragraphs 4.4-4.8.

Legislation

2.36​The Evidence Act 2008 (Vic) (the Act) governs the application of legal privilege in court proceedings and processes. Under the Act, legal privilege is called client legal privilege, reflecting the fact that the privilege belongs to the client.[67]

2.37​While the elements of client legal privilege closely resemble the elements of legal professional privilege, the Act refines many of the elements, rendering some narrower and others broader. Although these differences may have a significant impact on any given case, they do not materially affect the central matters under consideration in this inquiry.

2.38​Even when communications between a client and lawyer are not privileged, they are still likely to be confidential. The obligations of lawyers in relation to (non-privileged) confidential information is governed by Legal Profession Uniform Law.[68]

Evidence Act

2.39​Under the Act, client legal privilege attaches to confidential communications made for the dominant purpose of a lawyer providing legal advice to a client, or a client being provided with professional legal services relating to an Australian or overseas proceeding (that is, litigation).[69]

2.40​A client and a lawyer are defined broadly, with the former including an employee or agent of a client, and the latter including lawyers admitted to practice in Australia and overseas.[70]

2.41​Client legal privilege protects confidential communications with ‘another person’ if they were made for the dominant purpose of a legal proceeding, but only confidential documents prepared by another person if they were made for the dominant purpose of legal advice.[71] Confidential communications between an unrepresented party and another person may also be protected in the case of legal proceedings.[72]

2.42​Client legal privilege may be ‘lost’ with the consent of the client, or if the client has acted in a way that is inconsistent with the maintenance of privilege, including when the client knowingly and voluntarily discloses the substance of a privileged communication to another person.[73]

2.43​Client legal privilege may also be lost for misconduct, that being when the communication was made in furtherance of a crime, fraud or a deliberate abuse of power.[74]

Confidentiality obligations under the Legal Profession Uniform Law

2.44​Under the Legal Profession Uniform Law Australian Solicitors’ Conduct Rules 2015 (Solicitors’ Conduct Rules), solicitors are mostly prohibited from disclosing their clients’ (non-privileged) confidential information.[75] They may share information with employees of their law practice, a barrister or—importantly for integrated legal assistance services—another person who is ‘engaged by the solicitor’s law practice or by an associated entity for the purposes of delivering or administering legal services in relation to the client’.[76]

2.45​However, the Solicitors’ Conduct Rules also state that a lawyer may disclose confidential information if it is for the ‘sole purpose of avoiding the probable commission of a serious criminal offence’ or ‘for the purpose of preventing imminent serious physical harm to the client or to another person’.[77]

2.46​Similarly, the Legal Professional Uniform Conduct (Barristers) Rules 2015 prohibit barristers from sharing their clients’ confidential information, except to their instructing solicitor or staff.[78] A barrister whose client threatens the safety of any person may advise the police or other appropriate authorities if the barrister believes ‘on reasonable grounds that there is a risk to any person’s safety’.[79]

  1. ​Baker v Campbell [1983] HCA 39; (1983) 153 CLR 52, 65 [12].

    ↑

  2. ​Grant v Downs [1976] HCA 63; (1976) 135 CLR 674, 685 [19] (Stephen, Mason and Murphy JJ).

    ↑

  3. ​Evidence Act 2008 (Vic) ss 4, 131A.

    ↑

  4. ​Commissioner Australian Federal Police v Propend Finance Pty Ltd [1997] HCA 3; (1997) 188 CLR 501, 563 (Gummow J), 583

    (Kirby J).

    ↑

  5. ​For example, the qualified privilege over communications between a victim of a sexual offence and their counsellor in the Evidence (Miscellaneous Provisions) Act 1958 (Vic) pt 2, div 2A.

    ↑

  6. ​Baker v Campbell [1983] HCA 39; (1983) 153 CLR 52, 90 [18] (Murphy J), 96 [16] (Wilson J), 116 [11] (Deane J).

    ↑

  7. ​Independent Broad-Based Anti-Corruption Commission Act 2011 (Vic) ss 98, 143; Inquiries Act 2014 (Vic) s 32; National Anti-Corruption Commission Act 2022 (Cth) s 114(1), Royal Commissions Act 1902 (Cth) s 6AA.

    ↑

  8. ​Ritz Hotel Ltd v Charles of the Ritz Ltd and Another [No 22] (1988) NSWLR 132, 133 (McLelland J).

    ↑

  9. ​Asahi Holdings (Australia) Pty Ltd v Pacific Equity Partners Pty Ltd (No 2) [2014] FCA 481; (2014) 312 ALR 403, 413 [46].

    ↑

  10. ​Esso Australia Resources v Commissioner of Taxation [1999] HCA 67; (1999) 201 CLR 49, 65 [36].

    ↑

  11. ​Commissioner of Taxation v PricewaterhouseCoopers [2022] FCA 278, [205].

    ↑

  12. ​AWB Limited v Honourable Terence Rhoderic Hudson Cole (No 5) (with Corrigendum dated 25 October 2006) [2006] FCA 1234; (2006) 155 FCR 30, 46 [44(10)]; Waterford v Commonwealth [1987] HCA 25; (1987) 163 CLR 54.

    ↑

  13. ​Waterford v Commonwealth [1987] HCA 25; (1987) 163 CLR 54; Attorney-General (NT) v Kearney [1985] HCA 60; (1985) 158 CLR 500.

    ↑

  14. ​Australian Hospital Care Pty Ltd v Duggan (No 2) [1999] VSC 131; Waterford v Commonwealth [1987] HCA 25; (1987) 163 CLR 54; Attorney-General (NT) v Kearney [1985] HCA 60; (1985) 158 CLR 500.

    ↑

  15. ​Telstra Corporation Ltd v Minister for Communications, Information Technology and the Arts (No 2) [2007] FCA 1445, [35].

    ↑

  16. ​Mann v Carnell [1999] HCA 66; (1999) 201 CLR 1, 28 (Gleeson CJ, Gaudron, Gummow and Callinan JJ); Baker v Campbell [1983] HCA 39; (1983) 153 CLR 52, [4] (Murphy J).

    ↑

  17. ​Kang v Kwan & 2 Ors [2001] NSWSC 698, [30].

    ↑

  18. ​Commissioner Australian Federal Police v Propend Finance Pty Ltd [1997] HCA 3; (1997) 188 CLR 501, 513 (Brennan CJ).

    ↑

  19. ​Pratt Holdings Pty Ltd v Commissioner of Taxation [2004] FCAFC 122; (2004) 136 FCR 357, 386–87 [106] (Stone J, with Merkel J agreeing); affirmed in Commissioner of Taxation v PricewaterhouseCoopers [2022] FCA 278, [178] although noting that ‘the position is not free from doubt’.

    ↑

  20. ​Ronald J Desiatnik, Legal Professional Privilege in Australia (LexisNexis Australia, 4th ed, 2025) 119.

    ↑

  21. ​Waterford v Commonwealth [1987] HCA 25; (1987) 163 CLR 54, 66 [10].

    ↑

  22. ​Commissioner of Taxation v PricewaterhouseCoopers [2022] FCA 278, [170].

    ↑

  23. ​Grant v Downs [1976] HCA 63; (1976) 135 CLR 674.

    ↑

  24. ​Esso Australia Resources v Commissioner of Taxation [1999] HCA 67; (1999) 201 CLR 49, 66-73 [39]-[62].

    ↑

  25. ​Commissioner of Taxation (Cth) v Pratt Holdings Pty Ltd [2005] FCA 1247; (2005) 225 ALR 266, 278 [30] (Kenny J); cited in Commissioner of Taxation v PricewaterhouseCoopers [2022] FCA 278, [143].

    ↑

  26. ​Commissioner of Taxation (Cth) v Pratt Holdings Pty Ltd [2005] FCA 1247; (2005) 225 ALR 266.

    ↑

  27. ​AWB Limited v Honourable Terence Rhoderic Hudson Cole (No 5) (with Corrigendum dated 25 October 2006) [2006] FCA 1234; (2006) 155 FCR 30, 95 [235].

    ↑

  28. ​AWB Ltd v Cole [2006] FCA 571; (2006) 152 FCR 382, 410 [101] (Young J).

    ↑

  29. ​Baker v Campbell [1983] HCA 39; (1983) 153 CLR 52, 112.

    ↑

  30. ​Commissioner of Taxation v PricewaterhouseCoopers [2022] FCA 278, [148]-[149].

    ↑

  31. ​Grant v Downs [1976] HCA 63; (1976) 135 CLR 674, 690 [2] (Jacobs J).

    ↑

  32. ​Ibid 682 [14] (Stephen, Mason and Murphy JJ).

    ↑

  33. ​Mitsubishi Electric Australia Pty Ltd v Victorian WorkCover Authority [2002] VSCA 59; (2002) 4 VR 332, 333 [3] (Callaway JA).

    ↑

  34. ​Grant v Downs [1976] HCA 63; (1976) 135 CLR 674.

    ↑

  35. ​Attorney-General (NT) v Maurice [1986] HCA 80; (1986) 161 CLR 475, 480 [5] (Gibbs CJ).

    ↑

  36. ​Mann v Carnell [1999] HCA 66; (1999) 201 CLR 1, 13 [28]-[29].

    ↑

  37. ​Goldberg v Ng Hango Holdings Pty Ltd [1995] HCA 39; (1995) 185 CLR 83, 107-108 [21]-[22] (Toohey J).

    ↑

  38. ​Mann v Carnell [1999] HCA 66; (1999) 201 CLR 1, 13 [29].

    ↑

  39. ​Attorney-General (NT) v Maurice [1986] HCA 80; (1986) 161 CLR 475, 487 [11] (Brennan and Mason J).

    ↑

  40. ​Ibid 481 [7] (Gibbs CJ).

    ↑

  41. ​Attorney-General (NT) v Maurice [1986] HCA 80; (1986) 161 CLR 475.

    ↑

  42. ​Mann v Carnell [1999] HCA 66; (1999) 201 CLR 1.

    ↑

  43. ​Goldberg v Ng Hango Holdings Pty Ltd [1995] HCA 39; (1995) 185 CLR 83.

    ↑

  44. ​AWB Limited v Honourable Terence Rhoderic Hudson Cole (No 5) (with Corrigendum dated 25 October 2006) [2006] FCA 1234; (2006) 155 FCR 30.

    ↑

  45. ​Ibid 80 [178].

    ↑

  46. ​R v Cox and Railton [1884] 14 QBD 153; Hodgson v Amcor Ltd; Amcor Ltd v Barnes (No 2) [2011] VSC 204, [67].

    ↑

  47. ​Russell v Jackson (1851) ER 558, 560; cited in R v Bell; Ex parte Lees [1980] HCA 26; (1980) 146 CLR 141, 152 [14] (Stephen J).

    ↑

  48. ​R v Bell; Ex parte Lees [1980] HCA 26; (1980) 146 CLR 141, 151–52 [12] (Stephen J), see also 161 [7] (Wilson J).

    ↑

  49. ​Grant v Downs [1976] HCA 63; (1976) 135 CLR 674, 688 [26] (Stephen, Mason and Murphy JJ).

    ↑

  50. ​Du Barré v Livette (1971) ER 96.

    ↑

  51. ​Jones v Great Central Railway Co [1910] AC 4; cited in Grant v Downs [1976] HCA 63; (1976) 135 CLR 674, 688 [26] (Stephen, Mason and Murphy JJ); see also Pratt Holdings Pty Ltd v Commissioner of Taxation [2004] FCAFC 122; (2004) 136 FCR 357, 386 [106] (Stone J).

    ↑

  52. ​Commissioner of Taxation v Pratt Holdings Pty Ltd [2003] FCA 6; (2003) 195 ALR 717, 726 [39] (Kenny J); cited in Pratt Holdings Pty Ltd v Commissioner of Taxation [2004] FCAFC 122; (2004) 136 FCR 357, 360 [2], [6] (Finn J).

    ↑

  53. ​Mitsubishi Electric Australia Pty Ltd v Victorian WorkCover Authority [2002] VSCA 59; (2002) 4 VR 332, 335-336 [8].

    ↑

  54. ​Pratt Holdings Pty Ltd v Commissioner of Taxation [2004] FCAFC 122; (2004) 136 FCR 357, 386-87 [105]-[106] (Stone J).

    ↑

  55. ​Ibid 367-68 [41]-[42] (Finn J, with Merkel J agreeing); cited in Commissioner of Taxation v PricewaterhouseCoopers [2022] FCA 278, [170].

    ↑

  56. ​Commissioner of Taxation v PricewaterhouseCoopers [2022] FCA 278, [70].

    ↑

  57. ​Evidence Act 2008 (Vic) pt 3.10.

    ↑

  58. ​Legal Profession Uniform Law Application Act 2014 (Vic).

    ↑

  59. ​Evidence Act 2008 (Vic) ss 118–119.

    ↑

  60. ​Ibid s 117(1).

    ↑

  61. ​Ibid ss 118–119.

    ↑

  62. ​Ibid s 120; This is somewhat more limited than the litigation privilege in s 119 of the Act which applies to proceedings that are ‘anticipated or pending’ – this privilege applies only where there are court proceedings on foot or the disclosure obligations referred to in s 131A exist.

    ↑

  63. ​Evidence Act 2008 (Vic) s 122.

    ↑

  64. ​Ibid s 125.

    ↑

  65. ​Legal Profession Uniform Law Australian Solicitors’ Conduct Rules 2015 r 9.1.2.

    ↑

  66. ​This includes a multi-disciplinary partnership and a community legal service; ibid Glossary of Terms.

    ↑

  67. ​Ibid rr 9.2.4-9.2.5.

    ↑

  68. ​Legal Profession Uniform Conduct (Barristers) Rules 2015 rr 114, 116.

    ↑

  69. ​Ibid r 82.

    ↑

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