Spotless Group Ltd & Ors v Premier Building & Consulting Group Pty Ltd

(2006) 16 VR 1; [2006] VSCA 201

Victorian Court of Appeal

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Interrogate

Catchwords

1. Evidence
2. › Privilege
3. › Legal professional privilege
4. › Re-communication of privileged communications to third parties
5. › Whether privilege attaches to copies of privileged documents provided to third parties in confidence
6. › Whether privilege determined at date of creation or at date of re-communication
1. Evidence
2. › Privilege
3. › Legal professional privilege
4. › Waiver
5. › Implied waiver
6. › Disclosure to third parties for limited purpose on confidential basis
7. › Whether disclosure inconsistent with maintenance of confidentiality
8. › Mann v Carnell (1999) 201 CLR 1
1. Evidence
2. › Privilege
3. › Legal professional privilege
4. › Common interest privilege
5. › Whether financier-borrower relationship gives rise to common interest privilege
6. › Whether public relations consultant shares common interest with client

Quick Take

Where privileged legal advice is re-communicated to a third party in confidence for a limited purpose, the re-communication retains the protection of legal professional privilege and the question is whether the privilege has been waived, not whether the re-communication was made for a 'privileged purpose'. Disclosure of privileged material to litigation financiers on a confidential basis to facilitate funding does not constitute implied waiver. Common interest privilege does not arise between a litigant and its financier, as their interests are relevantly different (direct vs indirect). There is a division of opinion as to whether the Royce (PR consultant) documents retained privilege.