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  • Practitioners must frequently deal with the issue of legal professional privilege.
  • The underlying facts play a large part in any privilege considerations – but practitioners need to clearly appreciate the legal principles.
  • The Federal Court provided a useful summary of the principles of privilege and waiver last year in the case of Mitic v 0Z Minerals Ltd [2015] FCA 1152.

The doctrine of legal professional privilege dates back to ancient times. It can be identified in the legal principles of the Romans. Its roots, in English law, can be traced back to the period of Elizabeth I.

It appears that the original development of legal professional privilege in English law arose out of respect for a lawyer’s honour, as a gentleman, to maintain the confidences entrusted to him; rather than a recognition of the interests of a client, or wider public policy considerations.

Irrespective of the history of its development, there are three things in the modern legal landscape which are absolutely true:

  • the doctrine of legal professional privilege is well-established, in common law and in statute, as a sophisticated and often complex, principle of law;
  • it is frequently misunderstood; and
  • it continues to generate problems and disputes.

An example of a major privilege dispute was provided late last year in the Federal Court class action litigation concerning OZ Minerals (Mitic v 0Z Minerals Ltd [2015] FCA 1152). The privilege dispute concerned 1,500 documents discovered by OZ Minerals, 550 documents produced by one law firm and 2,240 documents produced by another law firm. The privilege dispute was litigated by each party nominating up to 20 sample documents.

The outcome was fact specific; but the judgment spelt out conveniently a number of fundamental principles concerning privilege and waiver.  Subsequent decisions have affirmed these principles.

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