Third party communications

A non-exhaustive list of situations where LPP will attach to third party communications is found in the judgement of Lockhart J in Trade Practices Commission v Sterling:1

Legal professional privilege extends to various classes of documents including the following:

(a) Any communication between a party and his professional legal adviser if it is confidential and made to or by the professional adviser in his professional capacity and with a view to obtaining or giving legal advice or assistance; notwithstanding that the communication is made through agents of the party and the solicitor or the agent of either of them.2

(b) Any document prepared with a view to its being used as a communication of this class, although not in fact so used.3

(c) Communications between the various legal advisers of the client, for example between the solicitor and his partner or his city agent with a view to the client obtaining legal advice or assistance.4 

(d) Notes, memoranda, minutes or other documents made by the client or officers of the client or the legal adviser of the client of communications which are themselves privileged, or containing a record of those communications, or relate to information sought by the client's legal adviser to enable him to advise the client or to conduct litigation on his behalf.5 

(e) Communications and documents passing between the party's solicitor and a third party if they are made or prepared when litigation is anticipated or commenced, for the purposes of the litigation, with a view to obtaining advice as to it or evidence to be used in it or information which may result in the obtaining of such evidence.6 

(f) Communications passing between the party and a third person (who is not the agent of the solicitor to receive the communication from the party) if they are made with reference to litigation either anticipated or commenced, and at the request or suggestion of the party's solicitor; or, even without any such request or suggestion, they are made for the purpose of being put before the solicitor with the object of obtaining his advice or enabling him to prosecute or defend an action.7 

(g) Knowledge, information or belief of the client derived from privileged communications made to him by his solicitor or his agent.8

Types of LPP available to third party communications

Litigation privilege

Traditionally, third party communications have been considered an extension of litigation privilege; LPP will protect confidential communications between a client or solicitor and a third party, made for the dominant purpose of preparation for or use in existing or reasonably anticipated proceedings, eg where third party communications are created to:9

  • obtain legal advice in relation to litigation
  • obtain evidence (such as a witness statement) for use in litigation; or
  • obtain information which could be used to gain evidence for use in litigation.

Advice privilege

Batt JA in Mitsubishi10 unequivocally excluded the availability of LPP for third party communications made for the dominant purpose of obtaining or giving legal advice where there is no litigation existing or pending.  However, this position has been reviewed by the decision in Pratt Holdings.11

In Pratt Holdings,12 the third party loss assessment group was commissioned by Pratt Holdings to prepare a report for the purpose of the company instructing its lawyers with the view to obtaining legal advice.  The loss assessment group were not found to be the agents of Pratt Holdings, but pure third parties.  At the time the report was commissioned, there were no existing or reasonably anticipated proceedings.  The traditional approach would mean that LPP could not attach to third party communications, as the communications were not prepared for use in or in relation to existing or reasonably anticipated litigation.

However, the majority judgment of Finn, Merkel and Stone JJ held that LPP can protect third party communications where the dominant purpose of the communication is the giving or obtaining of legal advice, even in the absence of existing or reasonably anticipated proceedings.  The judgment broadens the application of LPP to avail advice privilege to third party communications.

1 Trade Practices Commission v Sterling (1979) 36 FLR 244 at page 245-6. A number of the situations described by Lockhart J involve ‘agents’.  It is important to distinguish between third party agents and pure third parties, as the availability of LPP depends on the distinction. Communications involving third parties who are agents of the client or lawyer (ie. an authorised representative) may be privileged as though the communications were made by the client or lawyer themselves. On the other hand, pure third party communications will only attract LPP in limited circumstances (as discussed below).  Examples of pure third parties include doctors, accountants, engineers, economists and loss assessors, all of whom are often commissioned by the client or lawyer to prepare reports in their fields of expertise.  The availability of LPP for third parties has become a complex issue, particularly following the decision in Pratt Holdings Pty Ltd and Another v Commissioner of Taxation [2004] FCAFC 122.

2 Citing Wheeler v Le Marchant (1881) 17 Ch. D. 675; Smith v Daniell (1874) L.R. 18 Eq. 649; Bullivant v Attorney-General for Victoria [1901] A.C. 196; Jones v Great Central Railway Co. [1910] A.C. 4, and O'Rourke v Darbishire [1920] A.C. 58l.

3 Citing Southwark Water Co. v Quick (1878) 3 Q.B.D. 315.

4 Citing Hughes v Biddulph (1827) 4 Russ. 190; 38 E.R. 777.

5 Citing Woolley v North London Railway Co. (1869) LR 4 CP 602 at page 604; Greenough v Gaskell (1833) 1 My & K 98 at page 102; 39 ER 618 at page 620; Corporation of Bristol v Cox (1884) 26 Ch D 678 at page 681-682; Woolley v Pole (1863) 14 CBNS 538; 143 ER 556.; Seabrook v British Transport Commission [1959] 1 WLR 509; Grant v Downs (1976) 135 CLR 674, and Edward Bray, The Principles and Practice of Discovery (Reeves and Turner Law Booksellers and Publishers, 1885) 389.

6 Citing Wheeler v Le Marchant (1881) 17 Ch D 675; Laurenson v Wellington City Corporation [1927] NZLR 510, and O'Sullivan v Morton [1911] VLR 70.

7 Citing Wheeler v Le Marchant (1881) 17 Ch D 675; Cork v Union Steamship Co. (1904) 23 NZULR 933, and In Re Holloway (1887) 12 PD 167.

8 Citing Kennedy v Lyell (1883) 23 Ch D 387 and Lyell v Kennedy (No.2) (1883) 9 AC 81.

9 Trade Practices Commission v Sterling (1979) 36 FLR 244 at page 246.

10 Mitsubishi Electric Australia Pty Ltd v Victorian WorkCover Authority [2002] VSCA 59 at paragraph 9.

11 Pratt Holdings Pty Ltd v Commissioner of Taxation (2004) 136 FCR 357.

12 Pratt Holdings Pty Ltd v Commissioner of Taxation (2004) 136 FCR 357.

Last updated: October 16, 2013