Temwood Holdings Pty Ltd v Western Australian Planning Commission & Anor

[2003] WASCA 112

Western Australia Court of Appeal

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Interrogate

Catchwords

1. Administrative Law
2. › Freedom of information
3. › Exempt documents
4. › Legal professional privilege
5. › Whether privilege waived by references to legal advice in open court proceedings
6. › Freedom of Information Act 1992 (WA), Sch 1, cl 7
1. Evidence
2. › Privilege
3. › Legal professional privilege
4. › Waiver
5. › Implied waiver
6. › Imputed waiver by operation of law
7. › Inconsistency between conduct and maintenance of confidentiality
8. › Whether reference to existence of legal advice waives privilege
9. › Distinction between disclosing substance of advice and referring to its existence
1. Evidence
2. › Privilege
3. › Legal professional privilege
4. › Waiver
5. › Partial disclosure
6. › Whether partial or incomplete reference to substance of advice in open court waives privilege over whole of advice

Quick Take

A mere assertion in open court that a party's position is based on legal advice does not waive legal professional privilege over that advice. The distinction between disclosing the substance or effect of legal advice (which may waive privilege) and merely referring to its existence (which does not) was applied and clarified. The question whether cl 7 of Sch 1 to the Freedom of Information Act 1992 (WA) requires the Information Commissioner to consider waiver was left open.