Case: Attorney-General (NT) v Maurice [1986] HCA 80 ; (1986) 161 CLR 475
Outcome: considered
As an adjunct to the first limb of the privilege, protection against disclosure has been extended to documents that record confidential legal advice or confidential legal work. Examples commonly given include legal research memoranda, draft pleadings, summaries of argument and draft agreements: see Daniels at 563 [44] per McHugh J; Propend at 550 per McHugh J and at 569 per Gummow J; Attorney-General (NT) v Maurice [1986] HCA 80 ; (1986) 161 CLR 475 (' Maurice' ) at 496 per Dawson J; Sterling [1978] 36 FLR 244 at 246 per Lockhart J; Mostyn v West Mostyn Coal Co (1876) 34 LT 531; and Packer v Deputy Commissioner of Taxation (Qld) [1984] 1 Qd R 275 (' Packer' ) at 284-285. 128 Anderson J explained the scope of this protection and the reasons for it in Dalleagles at 333-334: 'What is protected, of course, is that which is communicated between solicitor and client. It is the communication that is privileged. But this is not to say that material that is not literally a communication or manifestly the record of a communication is never protected. There are many instances of protection being extended to such material. The examples of the draft letter that never leaves the solicitor's office, the draft agreement and the draft statement of claim have already been referred to. The reason why such material is protected is often stated to be that disclosure of it will, or will tend to, reveal the privileged communication: see Attorney-General (NT) v Maurice , per Dawson J (at 496). Thus a note made by a solicitor of a conference with his client will be privileged in so far as it is a record of the communication from the client (that communication being privileged) but also in so far as it might contain notes of the solicitor's own thoughts in regard to the matters communicated to him. Protection is afforded in the latter case on the ground that disclosure of that material might tend to reveal what had been communicated to the solicitor. There is much in the cases to support the view that this is the true basis upon which draft agreements, draft letters, draft pleadings and the like have long been accepted as privileged; that it is not so much because they are themselves "advice" or "communication" but because they will, if disclosed, reveal, or tend to reveal, the content of privileged communications. Material created by the solicitor in fulfilment of his engagement "is the result of the solicitor's mind working upon and acting as professional adviser with reference to" material communicated to him confidentially in his professional capacity ( Kennedy v Lyell [1883] 23 Ch D 387 at 407) and, as such, will by its very nature tend to reveal the content of the communication in response to which it had been prepared. Of course, there are limits and these have often been stated. The material must have been created solely for the purpose of fulfilling the engagement. The material must be confidential. No protection can extend to agreements in their final form intended to constitute the actual transaction between the parties or to records made for the purpose of evidencing an actual transaction, or to letters sent or to forms lodged at public offices or to pleadings filed in courts. This is because legal professional privilege exists to secure confidentiality and such material is no longer confidential.' 134 The application of the principle in this way is, I think, supported by Dawson J's observations in Maurice at 496-497: 'Before it emerges in its final form, successive drafts of a claim book may be privileged but this is not because of any privilege attaching to the final product. Draft pleadings in an action may be privileged, but I have never heard it suggested that a statement of claim or a defence or a reply is privileged so that the privilege is waived when it is filed or delivered to the other side. The reason why the draft may be privileged before the document is completed was early explained in Walsham v Stainton , upon the basis that, although after a pleading has been filed it becomes publici juris, the drafts "might disclose the precise character of confidential communications with the solicitor, by showing the alterations made from time to time". In the same way a letter to the other side in litigation which is drafted in a solicitor's office may be privileged before it is sent because it may reveal confidential communications between the solicitor and his client. Once it is sent, however, it ceases to be confidential and there is no privilege in it, not because privilege in the document is waived, but because no privilege attaches to it. When the claim book in this case reached final form or, at all events, when it was put to the use for which it was intended, it was not a confidential communication and not a privileged document. Legal professional privilege exists to secure confidentiality in communications between a legal adviser and his client but it can have no application in relation to a document the purpose of which is to communicate information to others. Of course, what is contained in such a document may reveal some confidential communication between a legal adviser and his client, but if it does do so and so waives privilege, the waiver is of the privilege in the anterior communication and not in the document itself. Thus, if in a pleading the contents of a privileged communication are set out then the privilege attaching to that communication may be waived by the pleading. But for this to happen the content of the communication itself must be revealed. The mere reference to the occasion, such as a conversation or a letter, without reference to its content will not constitute a waiver of the privilege: Buttes Oil Co v Hammer [No 3] ; Roberts v Oppenheim .' See also Gibbs CJ at 481, Mason and Brennan JJ at 488 and Deane J at 493. 135 It is logical to apply the principle in a way that matches the way in which the doctrine of waiver is applied. The issue in Maurice was whether the Aboriginal claimants under the Aboriginal Land Rights (Northern Territory) Act 1976 (Cth) had waived legal professional privilege in the source materials used to prepare their claim book, as a result of having tendered the claim book in evidence. The claim book did not specifically mention, or quote from, any of the source documents. The High Court held that privilege had not been waived in the source documents: see Gibbs CJ at 481, Mason and Brennan JJ at 487-488, Deane J at 493 and Dawson J at 497-499. In the course of his judgment, Gibbs CJ pointed out that privilege in respect of a document is not waived by the mere reference to that document in pleadings or in an affidavit, although the position will be different if the document is reproduced in full: at 481. Mason and Brennan JJ referred with approval at 488 to the following passage from JH Wigmore , Evidence in Trials at Common Law , vol 8, par 2327 at p 36: '[W]hen his conduct touches a certain point of disclosure, fairness requires that his privilege shall cease whether he intended that result or not. He cannot be allowed, after disclosing as much as he pleases, to withhold the remainder.' Deane J gave a more extended explanation of the way in which the doctrine of waiver should be applied (at 493): 'If, in such a document, a party sets forth part of the contents of a particular identified document or communication or asserts the effect of or his reliance upon a particular identified document or communication, it may be that considerations of fairness might require that he be treated as having waived any legal professional privilege in relation to the whole document or communication: cf Buttes Gas and Oil Co v Hammer [No 3] . Where, however, he does no more than make use of privileged material (eg legal advice, expert opinion or statements of potential witnesses) for the purpose of formulating the statement in such a document of the details of the case which he proposes to make, it would be an affront to ordinary notions of fairness to hold that the effect of his compliance with that procedural requirement was that he has waived his legal professional privilege in relation to such material.' 156 In Carter at 160-161, McHugh J said that explanations of the rationale that have been put forward in terms of the proper functioning of the legal system or the perfect administration of justice take too little account of the fact that the privilege protects communications that seek or give legal advice in cases where no litigation is pending or contemplated. His Honour therefore expressed the rationale for the privilege more broadly: 'Now that this Court has held that legal professional privilege is not a rule of evidence but a substantive rule of law, the best explanation of the doctrine is that it is 'a practical guarantee of fundamental, constitutional or human rights'. By protecting the confidentiality of communications between lawyer and client, the doctrine protects the rights and privacy of persons including corporations by ensuring unreserved freedom of communication with professional lawyers who can advise them of their rights under the law and, where necessary, take action on their behalf to defend or enforce those rights. The doctrine is a natural, if not necessary, corollary of the rule of law and a potent force for ensuring that the equal protection of the law is a reality.' See also Brennan J in Carter at 127; Baker at 94-95, 118 and 130; Waterford v Commonwealth [1987] HCA 25 ; (1987) 163 CLR 54 (' Waterford' ) at 64; Maurice at 487; and Three Rivers at 677 [C] per Lord Carswell.