What is client legal privilege in Australia?
Client legal privilege (called legal professional privilege at common law) protects confidential communications between a lawyer and client from compulsory disclosure. Under Division 1 Part 3.10 of the Evidence Act 1995 (NSW) (and equivalents) and at common law (Esso Australia Resources Ltd v Commissioner of Taxation (1999) 201 CLR 49), privilege has two branches: advice privilege (communications for the dominant purpose of legal advice) and litigation privilege (communications for the dominant purpose of anticipated or current litigation).
The dominant purpose test
Since Esso Australia Resources Ltd v Commissioner of Taxation (1999) 201 CLR 49, privilege requires the communication to be for the "dominant purpose" of legal advice or litigation — not merely "a substantial purpose". Mixed-purpose documents (business strategy + legal advice) may not be privileged. This is the most common battleground in privilege disputes.
What is protected
Communications between: lawyer and client (advice privilege); lawyer, client, and third parties (litigation privilege); and documents created for the dominant purpose. Material facts within a communication may not be privileged if they would have existed independently. The privilege belongs to the client, not the lawyer — the client alone can waive.
Waiver
Waiver can be express (e.g., disclosing the privileged content) or implied (using the privileged content in a way inconsistent with maintaining confidentiality). Mann v Carnell (1999) 201 CLR 1 is the leading authority on implied waiver. Inadvertent disclosure can trigger waiver — a confidentiality claim made immediately on discovery may preserve privilege. Common law waiver principles apply under section 122 of the Evidence Act 1995 (NSW).
How I support privilege review
I help lawyers run privilege reviews on large document productions, flag dominant purpose issues, and draft privilege logs in discovery-compliant format. On large discovery exercises this is typically where the bulk of junior time goes — I reduce it significantly while keeping quality consistent.
Common issues
- Emails to in-house lawyers are often not privileged — the lawyer must be acting in a legal capacity
- Copies to third parties can waive privilege — be careful with internal distribution
- Statutory exceptions (s 87B Corporations Act, AFP inquiries) can override privilege
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