Application of LPP in particular circumstances
Communications between the lawyer and expert
Confidential communications between a lawyer and a third party expert will attract LPP where the communications are made for the dominant purpose of use in existing or reasonably anticipated litigation.1
Common law approach to expert reports
While LPP may attach to an expert’s report or opinion, this does not restrain the expert from giving the content of the report (ie the expert’s opinion) to opposing litigants or third parties. This rule accords with the principle that there is no property in a witness and that:
an adverse party may subpoena an expert retained by the original party and require that expert to give all relevant information in his possession, including an expression of his opinion, to the court.2
UCPR rule 212
Expert reports may be commissioned for evidentiary purposes, in preparation for litigation.
In Queensland, the Uniform Civil Procedure Rules 1999 (Qld) (UCPR) state that ‘a document consisting of a statement or report of an expert is not privileged from disclosure’.3
The reference to ‘a legal proceeding’ in the relevant provisions of the RTI Act and repealed FOI Act is a reference to a hypothetical legal proceeding rather than a specific legal proceeding.4 Therefore the exemption requires an examination of how the common law principles of LPP apply and rule 212(2) of the UCPR has no relevance in applying the exemption.
Solicitors’ briefing instructions
A lawyer’s briefing instructions to an expert constitute confidential communications made for the dominant purpose of use in litigation and prima facie attract LPP.5 However, the privilege attaching to these instructions may be impliedly waived where the expert report relies on the lawyer’s instructions to form his or her opinion.6
Working documents/ source materials/ draft reports
As to whether LPP attaches to source materials or draft documents created by the expert in the process of forming their opinion, Thomas J‘s judgment in Interchase provides the following view:7
In general, when an expert is engaged by a solicitor for the purpose of giving evidence in a case, documents generated by the expert and information recorded in one form or another by the expert in the course of forming an opinion are not a proper subject for a claim of legal professional privilege. […] there is no sufficient reason why any material relevant to the formation of the expert’s opinion should be subject to a claim of legal professional privilege.
However, in Linter Group Ltd v Price Waterhouse (A Firm)8 an opposing viewpoint was put forward for the availability of LPP to protect draft expert reports:
…experts should not be inhibited by fear of exposure of a draft from changing their mind when such a change is warranted by the material before the expert.
Lawyers’ working documents
LPP attaches to a lawyer’s confidential working documents created for the dominant purpose of providing legal advice or for use in litigation, irrespective of whether the documents are ultimately provided to the client or used in litigation.9
As such, LPP may attach to lawyers’:
- drafts and notes
- research memoranda10
- collations and summaries of documents;11 and
- notes or recordings of conversations with the client.12
Lawyers’ billing documents
Generally, lawyers’ billing documents do not attract privilege, unless they demonstrate the ‘progress of a transaction’ or disclose the ‘nature of communications’.13
Client/ Cost Agreements
While a cost/client agreement is generally a precondition to the existence of privilege,14 the agreement itself will not usually attract privilege.15 However, there may be exceptions in some circumstances, for example: in Cook some of the statements set out in the agreement constituted the giving of legal advice.16
Statutory Abrogation of LPP
Regulatory bodies17 which investigate criminal activities, often have wide statutory powers to obtain information by way of compulsory disclosure.
The decision in Daniels18 considered LPP as a common law right and found that LPP cannot be abrogated by statute unless there are ‘very clear, indeed unmistakable, provisions of legislation…to deprive a person, otherwise entitled, of such a privilege’.19 There must be an express, unambiguous intention of the legislature to deny LPP. Note that this approach altered the previous approach to statutory abrogation of LPP, set down in Yuill’s case.20
2 Interchase Corporation Ltd v Grosvenor Hill (Qld) Pty Ltd [No 1]  1 Qd R 141 at page 161. See also Harmony Shipping Co SA v Saudi Europe Line Ltd  3 All ER 177 at page 180 per Lord Denning: ‘There is no property in a witness. The reason is because the court has a right to every man’s evidence. Its primary duty is to ascertain the truth. Neither one side nor the other can debar the court from ascertaining the truth either by seeing a witness beforehand or by purchasing his evidence or by making communication to him’.
5 Wheeler v Le Marchant (1881) 17 ChD 675; Trade Practices Commission v Sterling (1979) 36 FLR 224 at page 246; Interchase Corporation Ltd (in liq) v Grosvenor Hill (Queensland) Pty Ltd (No 1)  1 Qd R 141 at pages 151 and 160; Australian Securities and Investments Commission v Southcorp Ltd  FCA 804 at paragraph 21.
6 Instant Colour Pty Ltd v Canon Australia Pty Ltd  FCA 870; Interchase Corporation Ltd v Grosvenor Hill (Qld) Pty Ltd [No 1]  1 Qd R 141; Australian Competition and Consumer Commission v Lux Pty Ltd  FCA 89 at paragraph 46 and R v Meninga (1992) 66 A Crim R 199.
20 Corporate Affairs Commission of NSW v Yuill (1991) 172 CLR 319, where the majority held that legislation abrogates LPP when the privilege would frustrate the object of the statute and significantly impair the functions of the regulator.
Last updated: October 16, 2013