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.