LPP will be expressly waived when the client or their agent deliberately and intentionally discloses the confidential communications.1
The client’s solicitor may expressly waive the privilege on the client’s behalf, as an agent of the client.2 Confidential communications in the solicitor’s possession may also be waived by the client’s executors after the client’s death.3
Specifically, reading out privileged communications in an open court or tendering documents in interlocutory proceedings will result in an express waiver of LPP.4 However, confidential disclosure of the communications to the client’s witness or expert for the purpose of preparing an opinion will not constitute waiver of LPP.5
Dishonest or mistaken disclosure
Where confidential communications are disclosed as a result of dishonesty or fraud, there will be no express waiver.6 Whether mistaken disclosure of privileged documents amounts to express waiver is uncertain and may depend on the consequences of the disclosure. In certain circumstances, LPP may still be claimed having regard to the absence of significant consequences as well as the delay and measures taken to rectify the disclosure. For example, LPP was maintained where a solicitor requested the return of the document and identified the mistaken disclosure before the opposing party had benefited from the disclosure.7 However, where cross-examination on the document had already occurred LPP was taken to be expressly waived.8 Further, LPP may be claimed on a document inadvertently disclosed where a ‘reasonable person with the qualities of the actual recipient’ would have realised that the document was mistakenly disclosed.9
8 Desiatnik, Legal Professional Privilege in Australia, (Lexis Nexis, 2nd ed, 2005) at page 147; Re Illawarra County Council (General Conditions of Employment Award) (Unreported, Industrial Relations Commission of NSW, 17 June 1992).
Last updated: October 16, 2013