Introduction to the UEA - Victorian Law Reform Commission

Client legal privilege under the UEA encompasses:
• legal advice privilege (s118) which deals with confidential
communications between a client and a lawyer (or more than one
lawyer), and documents prepared by a lawyer or client, for the
dominant purpose of the lawyer providing legal advice to the client.
The privilege extends to documents prepared by a third party (for
example, a proposed expert witness)
• litigation privilege (s119) which deals with confidential
communications between the client and another person or the client’s
lawyer and another person, and documents prepared for the
dominant purpose of the client being provided with legal services
relating to an Australian or overseas proceeding (current, pending or
anticipated) in which the client is or might be a party. The privilege
extends to communications with, and documents prepared by, a third
party
Confidential communications between an unrepresented party and another
person, and the contents of confidential documents that were prepared at
the direction or request of an unrepresented party, for the dominant
purpose of preparing for or conducting the proceeding are also protected
from disclosure (s120).
4.8.2 Loss of privilege
Client legal privilege may be lost in numerous ways, including by express
or implied waiver. The common law test for waiver of privilege is whether
the person asserting the privilege has acted inconsistently with its
maintenance. This will ordinarily involve disclosure of the material over
which privilege is claimed. Traditionally, waiver may be implied if the
circumstances make it unfair for the client to claim the contrary.
The approach under the UEA is similar to the common law. Client legal
privilege may be lost where a client or party has acted inconsistently with
the maintenance of the privilege (s122(2)), such as where:
• the client or party knowingly and voluntarily disclosed the substance
of the evidence to another person (s122(3)(a)) or
• the substance of the evidence has been disclosed with the express or
implied consent of the client or party (s122(3)(b)).
There are a number of exceptions to the waiver rule. For example,
privilege will not be waived merely because the substance of the evidence
is disclosed in the course of making a confidential communication,
preparing a confidential document or because of duress, deception or
under compulsion of law (s122(5)).
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