Australia: Waiver refresher: Be alert to the possibility of waiving legal professional privilege

Litigation and Dispute Resolution Insights

Key Points:
Waiving legal professional privilege over legal advice and otherwise privileged documents or communications can be disastrous, given the sensitive information these materials often contain. This first of a two part article on waiver recaps the governing principles of waiver.

In a sophisticated commercial environment, there are compelling reasons for consumers of legal services to focus on preserving legal professional privilege, as seriously adverse consequences can flow from waiving that privilege.

In this two-part article on waiver of legal professional privilege, we'll first recap the legal principles governing waiver, and identify situations where a risk of waiver commonly arises in the commercial environment. In part two we'll build on this by outlining some practical tips for decreasing the risk of waiver.

Why is waiver a problem?

The immediate consequence of waiver is that material that is potentially highly sensitive may fall into the hands of opponents or competitors. This is a particular problem where formal, written legal advice is concerned, considering that such advice often:

  • sets out all facts, warts and all, in relation to a dispute (some of which may not yet be known to your opponent);
  • identifies weaknesses in your organisation's position and the strengths of your opponent's position;
  • identifies areas of concern about the character, demeanour or credibility of witnesses whose evidence is to be used to prove your organisation's case;
  • maps out the legal strategy or tactics to be adopted in relation to a high-stakes dispute; or
  • refers to, or is based on, separate legal advice or other privileged communications.1

Largely because the law recognises the need for frank communication of this nature between client and lawyer, legal professional privilege is entrenched as a doctrine of substantive law; it is not merely a rule of evidence or procedure.

What is privileged?

Broadly, confidential communications made or prepared for the dominant purpose of either seeking or giving legal advice, or for use in actual or anticipated litigation, will be privileged.

Confidentiality of a communication is an essential pre-condition to the existence of legal professional privilege, at common law and under the uniform Evidence Acts. Once that confidentiality is lost, privilege is also lost, and the document or communication is no longer immune from production. In other words, the privilege is waived.

In practice, waiver of privilege occurs in one of two ways - express waiver or implied waiver.

The easy one: express waiver

Express waiver involves the intentional disclosure of a document or communication that records privileged material, in a manner that destroys its confidentiality. Determining whether an express waiver of privilege has occurred is, generally, relatively straightforward.

The more difficult one: implied waiver

Ascertaining whether there has been an implied waiver can be much more complex. Implied waiver occurs when the holder of the privilege does something that is inconsistent with the maintenance of the confidentiality that the privilege protects - even if the holder did not subjectively intend to waive privilege (Mann v Carnell (1999) 201 CLR 1).

In those jurisdictions which have adopted the uniform Evidence Act (including Federal, NSW, ACT, and Victoria) questions of privilege and waiver are governed by the Act or by the common law, depending on the context in which the question arises. In broad terms:

  • in the Federal jurisdiction and the ACT, the Evidence Act applies only when evidence is being adduced, whether at trial or in the context of an interlocutory hearing;
  • in NSW and Victoria, the Evidence Act applies to questions of privilege not only when evidence is being adduced, but also during interlocutory steps which require compulsory disclosure of information or documents (including discovery and subpoenas).

In NSW, Victoria and the Federal jurisdiction (together with the ACT), the test for waiver set out in section122 of the uniform Evidence Acts is now closely aligned with the common law test.

While not exhaustive, sub-sections122(3) to (5) provide some guidance as to what acts are (or are not) inconsistent with the maintenance of the privilege. However, that guidance does not really break new ground, or necessarily simplify the task of ascertaining whether there has been an implied waiver.

Whether there is a waiver will depend on the particular context and circumstances of a case. In some cases, determining whether there is conduct by the privilege-holder which is inconsistent with the maintenance of privilege will be informed (but not governed) by considerations of "fairness". Accordingly, conduct in relation to privileged material that, in isolation, could be regarded as equivalent will not necessarily produce the same result from case to case.

Where does the risk of implied waiver commonly arise?

Implied waiver of privilege can commonly be a risk where:

  • legal advice is referred to in press or stock exchange releases;
  • legal advice is referred to in communications with a third party (for example, in support of the privilege-holder's position or to advance the privilege-holder's commercial interests);
  • legal advice is discussed in board papers or other internal documents later produced under compulsion, such as by subpoena or during discovery in litigation (without a claim for privilege); or
  • in litigation, when a party's state of mind, which appears to have been formed to some extent on the basis of legal advice, is in issue on the pleadings.

Each of these situations involves conduct that tends to jeopardise the confidentiality underpinning the relevant communication, and that conduct may thus be inconsistent with maintaining privilege.

The first three arise reasonably regularly in day-to-day business, and there is recent case law concerning each of them. In our next article we will offer some tips for preserving legal professional privilege in these three situations.

The authors acknowledge the assistance of Lindsey Cregan in preparing this article.

1. In such situations, the consequences of waiver can be compounded because privilege may also be lost in those other materials if they are necessary to properly understand the advice: where the common law applies, this is based on the test for implied waiver established in Mann v Carnell (1999) 201 CLR 1; and in situations where the uniform Evidence Acts apply, section126 of each of the Evidence Act 1995 (Cth), Evidence Act 1995 (NSW), Evidence Act 2008 (Vic) and Evidence Act 2001 (Tas) governs.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

Some comments from our readers…
“The articles are extremely timely and highly applicable”
“I often find critical information not available elsewhere”
“As in-house counsel, Mondaq’s service is of great value”

Mondaq Advice Centre (MACs)
Related Video
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Check to state you have read and
agree to our Terms and Conditions

Terms & Conditions and Privacy Statement (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

Use of

You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these terms & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.


Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use or performance of information available from this server.

The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.


Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.

Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

If you do not want us to provide your name and email address you may opt out by clicking here .

If you do not wish to receive any future announcements of products and services offered by Mondaq by clicking here .

Information Collection and Use

We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to with “no disclosure” in the subject heading

Mondaq News Alerts

In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.


A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

Log Files

We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.


This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

Surveys & Contests

From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.


If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.


This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to

Correcting/Updating Personal Information

If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to

Notification of Changes

If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

How to contact Mondaq

You can contact us with comments or queries at

If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at and we will use commercially reasonable efforts to determine and correct the problem promptly.