Litig8: The privilege trap: implied waiver

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By Caitlin Taylor, Senior Associate

Each month as a part of Mills Oakley’s Litig8, we bring to you snapshots of eight key cases, legislative changes or other legal events. The summaries are not comprehensive and do not constitute legal advice. You should seek professional advice before taking any action based on the content of this email.

Part 2 of Litig8 Edition 3

The Federal Court has recently considered whether privilege in certain legal advices had been impliedly waived by the conduct of the Public Trustee in Oztech Pty Ltd v Public Trustee of Queensland (No 8) (2016) FCA 712.

Oztech contended that the Public Trustee had impliedly waived privilege over advices and briefing documents that were mentioned in a transcript attached to a letter disclosed in proceedings.  It asserted that the failure to redact parts of the transcript which referred to the substance of the legal advices were inconsistent with the maintenance of privilege and therefore constituted an implied waiver.

The Courts will impute an intention to waive privilege where the actions of a party are plainly inconsistent with the maintenance of the confidentiality which the privilege is intended to protect.

Whilst in this case, the Court determined that the Public Trustee’s conduct in producing the relevant portion of the transcript and in not seeking its return or redaction were not inconsistent with it maintaining privilege in the legal advices, it serves as a reminder of the importance to:

  1. Carefully review all documents (including the content of attachments) being disclosed in proceedings for privilege; and
  2. Maintain a consistent position in relation to privileged documents, particularly in circumstances where those documents may have been inadvertently disclosed.

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