Waiver of Legal Privilege in Australia


1 Given the fundamental role legal professional privilege has traditionally played in our common law system, it might be thought that it would be strongly defended.

2 However, recent authority, particularly in the Federal Court, suggests an apparent readiness to find a waiver of legal professional privilege.

3 This paper examines such authority, and further examines the implications, particularly for the government adviser.

4 Given the fact that the statutory provisions of the Evidence Act 1995 (Cth) have been confined to the adducing of evidence in the course of a hearing in court , this paper will concentrate on the situation at common law. As will be seen in the cases below, the vexed question of waiver frequently arises in the course of discovery in interlocutory proceedings.

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DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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