Disclosing the conclusion of legal advice is not always
a common-law waiver of privilege.
It depends on the circumstances of the case, but should
not be done without a great deal of thought!
When you have legal advice that supports your position, it can
be very tempting to tell the world about it, or at least use it as
a negotiating tool, but that temptation is usually curbed by the
knowledge that this will waive privilege in the advice. What about
merely stating the conclusion or gist of the advice?
There has been a divergence of opinion in the courts as to
whether any disclosure of the conclusion or gist
will be enough to waive privilege (we've looked at this before
here). Some of that confusion has been cleared away by the High
Court decision in Osland v Secretary to the Department of Justice
 HCA 37 (7 August 2008) on the common-law implications of a
disclosure of the gist or conclusion.
The press release and the privilege
In 1996, Mrs Osland was convicted of murdering her husband in
what has become a very high-profile case in Victoria. Having
exhausted the appeals process, she petitioned the Governor of
Victoria for a pardon.
On 6 September 2001, the Victorian Attorney-General announced
that the Governor had denied Mrs Osland's petition. The usual
practice with petitions for pardon is not to release any reasons
for the decision, but the Attorney-General noted in the press
"Following consultation with the
State Opposition, I appointed a panel of three senior counsel,
Susan Crennan QC, Jack Rush QC and Paul Holdenson QC, to consider
Mrs Osland's petition.
This week I received a memorandum of
joint advice from the panel in relation to the petition. The joint
advice recommends on every ground that the petition should be
The question for the High Court was whether this had waived
privilege in the advice.
Is the gist enough to lose privilege?
The High Court went back to basics to answer this question. Why
do we have a rule at common-law that privilege can be waived? The
rule exists to cover the cases where the conduct of the party
entitled to the privilege is inconsistent with the maintenance of
the confidentiality which the privilege is intended to protect.
In other words, you can't have your cake and eat it too.
In turn, a finding of inconsistency can only be made "in
the context and circumstances of the case, and in the light of any
considerations of fairness arising from that context or those
In this case, that meant looking at:
the nature of the matter in respect of which the advice was
the evident purpose of the Attorney-General in making the
the legal and practical consequences of limited rather than
The matter here was the denial of a petition for a pardon by Mrs
Osland. The Attorney-General traditionally does not explain these
What was the evident purpose of the disclosure? This was a very
high-profile case with a great deal of public interest. The press
release was intended to satisfy the public that due process had
been followed in Mrs Osland's petition for a pardon and that
the decision was not based on political considerations, but without
The net effect of the disclosure was not to cause any
inconsistency or unfairness to Mrs Osland and accordingly, there
had been no waiver of legal professional privilege.
Proceed with caution!
In some ways this isn't a surprising decision - it applies
Mann v Carnell (1999) 201 CLR 1, which has been the law for nearly
a decade. As noted above, however, there has been a divergence of
views on the effect of disclosure, so this does restore some
It doesn't mean however that you can start telling the world
about the gist of your legal advice, if you want to maintain
privilege in the advice. The key issues will always be the context
and the effect of the disclosure. Are you setting up a situation in
which you're trying to have it both ways?
It's also important to remember that this decision was
dealing with the common-law position. Different considerations
might arise if the disclosure is under the Commonwealth Evidence
Act or its State equivalents (just to add to the confusion, you
also need to remember that the Act applies in the Federal Court at
final trial but not to interlocutory proceedings).
In short, extreme caution should be exercised before disclosing
the substance or gist of legal advice in respect of which there is
no desire to waive privilege.
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.
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This was an interlocutory decision about the appointment of a tutor for the child appellant, to carry on his proceedings.
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