Confidentiality of certain types of communications
The courts’ considerations of the following types of communications may provide guidance on whether this element is satisfied.
Solicitors’ documents
Generally, in the course of communications between a lawyer and client, a number of documents will be created that do not contain the substance of the confidential communication. Only solicitors’ documents that disclose the confidential communications or infer the nature or extent of communications will be privileged, eg:1
- communications between the client’s legal advisors
- draft correspondence between the lawyer and client
- draft correspondence between the lawyer and the opposing party; and
- draft pleadings.
Generally, the following types of solicitors’ documents do not disclose the confidential communications or infer the nature or extent of the legal advice and so will not usually attract LPP:2
- trust account ledgers3
- backsheets4
- memoranda of fees5
- fee records6
- timesheets;7 and
- cost agreements, unless the cost agreement refers to specifics of the legal advice.8
Documents concerning transactions
Generally, LPP does not attach to documents which constitute or evidence transactions (eg contracts, conveyances, declarations of trust, offers or receipts) as the information communicated in those documents is not inherently confidential.9 This general rule applies even if the documents are delivered to a lawyer for advice or for use in litigation.10
Witness Statements
Witness statements obtained by a client or solicitor for the dominant purpose of use in litigation are generally privileged from disclosure.
In Safeway Stores11 the majority found that LPP may attach to witness statements, even if the witness was not under an obligation of confidentiality. However, this general rule is only applicable when the statement is ‘in the hands of the lawyer or client’;12 a copy of the statement ‘in the hands of the witness’ will only attract LPP if the witness owes a duty of confidence to the client or lawyer.13
While LPP attaches to the witness statement document, there is ‘no property in a witness’,14 and as such LPP does not prevent a witness from disclosing the fact or content of their statement to a third party or opposing litigant. A duty of confidence, if it exists, may restrain the witness from disclosing the communications. A witness will be under a duty of confidence not to disclose the contents of witness statements where the circumstances surrounding the preparation of the statement impose an express or implied obligation not to disclose the communication.15
Video Tape Recordings
The case of J-Corp16 considered whether LPP can attach to video tape recordings intended for use as evidence in litigation. In that case, the video footage of a building site was real evidence of events occurring in public; therefore the content of the footage was not confidential and could not attract LPP.
The Federal Court decision of Daniel and Others v Western Australia17 drew a distinction between video tape recordings used as real evidence of public events, which cannot be considered confidential; and recordings that reveal confidential communications. The latter may be confidential and attract LPP.
Communications with opposing party
Generally, communications between opposing litigants or their lawyers are not confidential and will not attract LPP.18 However communications between a lawyer and their client, which concern or discuss communications with opposing parties or their legal representatives may be privileged.19 Similarly, notes taken by the client or lawyer in regards to communications with the opposing party or their legal representatives may be privileged, in that the notes reveal the parties’ considerations of the importance or irrelevance of certain parts of the communication.20
1 Commissioner of Australian Federal Police v Propend Finance Pty Ltd (1997) 188 CLR 501 at page 569.
2 Cross on Evidence Loose-leaf Edition [25,225].
3 Cross on Evidence Loose-leaf Edition [25,225].
4 Cross on Evidence Loose-leaf Edition [25,225].
5 Cross on Evidence Loose-leaf Edition [25,225].
6 Cross on Evidence Loose-leaf Edition [25,225].
7 Cross on Evidence Loose-leaf Edition [25,225].
8 Cook v Pasminco Pty Ltd (No 2) (2000) 107 FCR 44 at page 53.
9 Baker v Campbell (1983) 153 CLR 52 at page 86.
10 Baker v Campbell (1983) 153 CLR 52 at page 86.
11 Australian Competition and Consumer Commission v Australian Safeway Stores Pty Ltd (1998) 81 FCR 526.
12 A Ligertwood, Australian Evidence (4th ed, LexisNexis Butterworths, 2004) at pages 291-2.
13 A Ligertwood, Australian Evidence (4th ed, LexisNexis Butterworths, 2004) at pages 291-2.
14 See Harmony Shipping Co SA v Saudi Europe Line Ltd [1979] 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’.
15 Public Transport Authority of Western Australia v Leighton Contractors [2007] WASCA 151 at paragraph 34. See also State of New South Wales v Jackson 2007 NSWCA 279 at paragraph 41, where it was found that an obligation of confidentiality ‘can extend to an unspoken obligation, and to an ethical, moral or social obligation.’
16 J-Corp Pty Ltd v Australian Builders Labourers Federated Union of Workers (Western Australian Branch) and Others (No 1) (1992) 38 FCR 452 at page 457.
17 Daniel and Others v Western Australia [1999] FCA 1541 at paragraphs 22, 43 and 49.
18 Cross on Evidence Loose-leaf Edition [25,225].
Last updated: October 16, 2013