LPP element 1: confidential communication
LPP attaches to communications rather than documents. The tendency to refer to ‘privileged documents’ rather than ‘privileged communications’ has led to some uncertainty in case law. Documents that record or contain confidential communications may be privileged.1 However, ‘it is not the documents, as such, which attract the privilege, still less the information within them. It is the communication to and by the lawyer’.2 Facts observed by a solicitor are not communications and do not attract LPP.3
The form of communication to which LPP may attach, has been broadly interpreted to include oral and written communications as well as other forms of communication, including: photocopies of original documents, audio or video tapes, surveillance tapes and computer software.4
Communications passing between a client and lawyer must be confidential in order to attract LPP. It follows that generally, communications between a lawyer and client, made in the presence of a third party are not confidential and do not attract LPP,5 however this is not always the case (see third party communications).
The duty of confidentiality in relation to the communications is owed by the lawyer, to the client. Therefore the privilege belongs to the client and only the client may claim or waive LPP.6
For a discussion of whether particular types of documents (eg. solicitors' documents and witness statements) comprise confidential communications, see confidentiality of certain types of communications.
Copies of privileged documents
Consistent with the approach that LPP attaches to communications, rather than documents, LPP will attach to copies of privileged documents. Since it is common practice for lawyers to make copies of documents recording confidential communications, the purpose of LPP would be undermined if copies of privileged documents did not attract the privilege.7
Copies of non-privileged documents
LPP may attach to a copy of a non-privileged document if the copy was made for the dominant purpose of giving or obtaining legal advice or for use in existing or reasonably anticipated proceedings.8
4 Commissioner of Australian Federal Police v Propend Finance Pty Ltd (1997) 188 CLR 501 at page 585 as per Kirby J: ‘Necessarily, the doctrine of legal professional privilege must adapt to a world in which these media are the stuff of disputes concerning criminal and civil obligations and the rights of clients’. Also see J-Corp Ltd v Australian Builders Labourers Federated Union of Workers (Western Australian Branch) and Others (No 1) (1992) 38 FCR 452.
Last updated: October 16, 2013