September 2, 2024
As discussed in Part 1 of this series, a party to a proceeding has a duty to disclose documents to each other party to the proceeding,[1] and this duty of disclosure continues throughout the entire duration of the court proceeding.[2] Where documents are classified as ‘privileged’, however, they will not be subjected to ordinary disclosure rules.
DOCUMENTS TO WHICH DISCLOSURE DOES NOT APPLY
Under rule 212(1) of the Uniform Civil Procedure Rules 1999 (Qld) (UCPR), the duty of disclosure does not apply to –
(a) a document in relation to which there is a valid claim to privilege from disclosure;
(b) a document relevant only to credit; or
(c) an additional copy of a document already disclosed, if it is reasonable to suppose the additional copy contains no change, obliteration or other mark or feature likely to affect the outcome of the proceeding.
Although documents falling within the above exceptions are not required to be disclosed to the other party to the proceeding and/or made ready for inspection by the other party (unless the court orders otherwise), they must still be disclosed in the list of documents.
PRIVILEGED DOCUMENTS
To establish a valid claim for privilege, it is necessary to show that a communication or document was made confidentially, where the dominant purpose was for the providing or obtaining of legal advice, or for actual (existing) or anticipated legal proceedings. This means that a communication or document already in existence, which is later provided to a legal advisor for the purpose of providing legal advice, will not attract privilege. Privilege may be enforced through an injunction to restrain the unauthorised use of privileged communications or via court processes during litigation.
Confidentiality can be express or implied, i.e., where a communication or document is made in front of a third party, privilege will likely not apply. Therefore, it is prudent for legal advisors to ensure that confidential communications or documents are marked as such and disclosed only to those people on a ‘need-to-know’ basis.
To prove that the dominant purpose of a communication or document was for providing or obtaining legal advice, or for actual or anticipated litigation, the onus lies with the party claiming privilege, on the balance of probabilities. However, if a document would have been prepared regardless of an intention to seek legal advice, it will not be privileged.
Where a section of a relevant document is covered by privilege (but that privileged section itself is irrelevant to an allegation in issue), it is still required to be disclosed in redacted form, e.g., a board paper containing a summary of legal advice received. It must be apparent to both the other party as well as the court that the redacted material is in fact irrelevant.
Expert Evidence?
In Queensland, it is clear that a document consisting of a statement or report from an expert is not privileged from disclosure.[3] This includes draft expert reports or statements.[4] However, privilege is not abrogated in respect of a document that is neither a statement nor a report of an expert, i.e., a solicitor’s file note of a conference with an expert does not fall within the ambit of rule 212(2).[5]
CHALLENGING A CLAIM FOR PRIVILEGE
Notwithstanding the above, rule 213 of the UCPR stipulates that the other party to the proceeding (the party not claiming privilege from the disclosure of a document) can challenge a claim to privilege by requiring the privilege-claiming party to file and serve on them an affidavit stating the basis of the claim, within 7 days after the challenge.[6]
The affidavit must be made by an individual who knows the facts and circumstances giving rising to the claim.[7]
WAIVING PRIVILEGE
Generally, privilege is waived when the party claiming privilege acts inconsistently with the maintenance of a communication or document’s confidentiality. This necessarily involves considering whether the gist, substance or conclusion of the privileged communication is published or communicated to a third party, or if a document is produced which discloses the gist, substance or conclusion of the privileged communication.
The waiving of privilege may be done expressly (e.g., a client intentionally discloses privileged material or authorises their lawyer to do so), or impliedly. Simply stating that legal advice exists is insufficient in waiving privilege.
Privilege will not apply to communications or documents made for the purpose of facilitating illegal or improper purposes. This rule still applies even if the lawyer was not a party to, or even aware of, the improper purpose.
Inadvertent disclosure (e.g., a party relying on the conclusion of legal advice) may not result in a waiver of privilege if the party acts promptly and takes reasonable steps in protecting the confidentiality of the document once an error has been detected.[8]
The final instalment of this series on disclosure will examine preliminary and non-party discovery.
Lamont Project & Construction Lawyers
The Lamont Project & Construction Lawyers team has extensive knowledge and experience dealing with privileged and confidential documents in the disclosure process. With this knowledge and expertise, Lamont Project & Construction Lawyers can provide the required support and advice for disclosure in litigation of all scopes and sizes.
If you would like to discuss any matters raised in this article as it relates to your specific circumstances, please contact Lamont Project & Construction Lawyers.
The content of this article is for information purposes only and does not discuss every important topic or matter of law, and it is not to be relied upon as legal advice. Specialist advice should be sought regarding your specific circumstances.
Contact: Peter Lamont or Cliff Mei
Email: [email protected] or [email protected]
Phone: (07) 3248 8500
Address: Level 2, 349 Coronation Drive, Milton Qld 4064
Postal Address: PO Box 1133, Milton Qld 4064
[1] Uniform Civil Procedure Rules 1999 (Qld) r 211(1) (‘UCPR’).
[2] UCPR r 211(2).
[3] UCPR r 212(2).
[4] Mitchell Contractors Pty Ltd v Townsville-Thuringowa Water Supply Joint Board [2004] QSC 329, [13] (Douglas J).
[5] Enkelmann & Ors v Stewart & Anor [2023] QCA 155, [22].
[6] UCPR r 213(2).
[7] UCPR r 213(3).
[8] Expense Reduction Analysts Group Pty Ltd and Others v Armstrong Strategic Management and Marketing Pty Ltd and Others [2013] HCA 46, [49].