By Cynthia Cochrane SC and Catherine Bembrick -
Snapshot
- The Federal Court recently considered implied waiver of legal professional privilege in Federal Treasury Enterprise (FKP) Sojuzplodoimport v Spirits International B.V. (No 6). Justice Stewart held there had been an implied waiver of privilege over redacted portions of solicitor-client email chains exhibited to an affidavit, in circumstances where privilege had been expressly waived over unredacted portions of those email chains.
- A similar issue could arise in solicitor affidavits that refer to ‘instructions’ from a client. Such references may result in a notice to produce being served which seeks copies of documents recording or referring to those ‘instructions’.
- The decision provides a timely reminder of the need to exercise extreme caution when corresponding with clients in email chains and when referring to, or disclosing, in affidavits or inter partes correspondence, material over which legal professional privilege may exist.
In Federal Treasury Enterprise (FKP) Sojuzplodoimport v Spirits International B.V. (No 6) [2019] FCA 337 (‘FKP v Spirits’) Stewart J considered a client affidavit, filed in interlocutory proceedings, which exhibited solicitor-client email chains that had been redacted in part on the grounds of legal professional privilege. Privilege was expressly waived over the unredacted portions of the email chains. His Honour determined that an implied waiver had in fact occurred in respect of the redacted portions of some of the email chains on the basis that the subject matter was the same and it was necessary to have regard to the redacted portions to understand fully the unredacted portions. The decision is a timely reminder of the extreme caution that should be employed when corresponding with clients via email chains and when deciding whether to deploy solicitor-client email chains in court. Related to this, the common practice of referring in solicitor affidavits to ‘instructions’ may result in the issuing of a notice to produce for documents recording those instructions, e.g. email chains. Although the instructions may have been privileged, by putting them in issue in the affidavit, it is arguable that any privilege was waived.
Waiver by disclosure – beware partial redactions
In FKP v Spirits Stewart J considered an application for the production of unredacted documents over which legal professional privilege was claimed by FKP. The documents were sought pursuant to two notices to produce, one seeking specifically identified documents and the other seeking production of documents described by category. It was common ground in the proceedings that, in the ordinary course, the documents in dispute would attract legal professional privilege. However, Spirits argued that the privilege had been impliedly waived by the conduct of FKP in disclosing and relying on legally privileged documents in an affidavit of Ms Semenova, sworn and filed in an interlocutory application (at [2]).
