Loss of LPP
Illegal / Improper Purpose Exception
LPP will not attach to confidential communications between a client and solicitor created for the purpose of committing or furthering a crime, fraud or an improper purpose.1 This exception to privilege will only apply to communications made ‘in preparation for or in furtherance of or as a party to’2 the illegal or improper purpose, as distinct to communications concerning prior conduct of the client. The lawyer need not have known of the illegal or improper purpose for which the legal advice was sought for this exception to apply.3
Propend4 emphasised the importance of LPP as a substantive right by refusing to apply the exception where there are only ‘…vague or generalised contentions of crimes or improper purposes…’.5 Accordingly, there must be reasonable grounds for believing that the communications were made in the furtherance of a crime or improper purpose;6 there needs to be ‘something to give colour to the charge. The statement must be made in clear and definite terms, and there must further be some prima facie evidence that it has some foundation in fact’.7
Communications created in furtherance of the following improper purposes may give rise to this exception:
- civil cases of fraud, including ‘…“fraud on justice” or conduct that would “frustrate the processes of law”…’8
- intentional abuse or misuse of a statutory power;9 and
- deliberate breach of a legal duty.10
Waiver of LPP
The client is the beneficiary of LPP and therefore only the client or their agent may waive the privilege. LPP may be waived:
- intentionally, by disclosure of the privileged communications to persons outside the relationship of privilege (express waiver);11 or
- through implication of law in circumstances where their conduct is inconsistent with the maintenance of the privilege (implied / imputed waiver).12
For a discussion of defences and exceptions to waiver (eg. joint interest privilege and common interest privilege), see defences and exceptions to waiver of LPP.
1 R v Cox and Railton (1884) 14 QBD 153 at [165]; R v Bell; Ex parte Lees (1980) 146 CLR 141 at [145] and Attorney-General (NT) v Kearney (1958) 158 CLR 500 at page 511.
2 LexisNexis, Cross on Evidence, 159, [25,290].
3 Varawa v Howard Smith & Co Ltd (1910) 10 CLR 382 at [390].
4 Commissioner of Australian Federal Police v Propend Finance Pty Ltd (1997) 188 CLR 501.
5 Commissioner of Australian Federal Police v Propend Finance Pty Ltd (1997) 188 CLR 501 at page 591.
6 Commissioner of Australian Federal Police v Propend Finance Pty Ltd (1997) 188 CLR 501 at page 514.
7 O’Rourke v Darbishire [1920] All ER Rep 1 at page 6. Note also that in Commissioner of Australian Federal Police v Propend Finance Pty Ltd (1997) 188 CLR 501 hearsay evidence could not be relied upon to displace LPP where the document was alleged to have been made in furtherance of an illegal or improper purpose.
8 Re ACN 005 408 462 Pty Ltd (formerly TEAC Australia Pty Ltd) [2008] FCA 964 at paragraph 16.
9 Re ACN 005 408 462 Pty Ltd (formerly TEAC Australia Pty Ltd) [2008] FCA 964 at paragraph 16.
10 Re ACN 005 408 462 Pty Ltd (formerly TEAC Australia Pty Ltd) [2008] FCA 964 at paragraph 16.
11 Goldberg v Ng (1994) 33 NSWLR 639 at page 670.
12 Osland v Secretary to the Department of Justice [2008] HCA 37 at paragraph 45.
Last updated: October 16, 2013
