Professional Legal Privilege in Victoria: An Overview and Critical Analysis
Professional legal privilege, often termed ‘lawyer-client privilege’, stands as one of the pillars of the legal profession. At its core, it ensures that communications between a lawyer and client remain confidential, allowing clients to freely and candidly seek legal advice without fear of repercussions. In Victoria, the rules of legal privilege are codified under the Evidence Act 2008. Under Victorian law, a privilege is a right to resist disclosure that is otherwise mandatory rather than a rule of admissibility.
There are four types of privilege that a person can claim:
- Legal professional privilege (‘client privilege’) in s 117-126
- Religious privilege in s 127
- Privilege against self-incrimination in s 128 and s 128A
- Public interest immunity in s 129-131B
The Underpinning Philosophy of Legal Privilege
Legal privilege is founded upon the necessity for trust between lawyers and clients. Without such trust, clients might be reticent to fully disclose their situations, potentially hindering their right to fair representation.
The Betrayal of Privilege: The Lawyer X (Nicola Gobo) Incident
One of the most shocking breaches of this trust in Australian legal history involves Lawyer X, also known as Nicola Gobo. Representing high-profile criminals, including Carl Williams and Tony Mokbel, Gobo covertly shared privileged information with the police in her role as an informant, leading to the arrests and convictions of her own clients. Not only did this egregious breach undermine the integrity of the legal system, but it also posed pressing questions about the limits and exceptions to legal privilege.
The unprecedented Lawyer X case in Victorian history and the subsequent Royal Commission resulted in two convictions (including that of Faruk Orman, who spent more than a decade in prison and Zlate Cvetanovski, who spent 11 years in custody for drug trafficking) being quashed and several appeals affected by Ms Gobbo’s conduct.
The Parameters of Professional Legal Privilege in Victoria: Key Legislative Provisions
Professional legal privilege in Victoria is primarily governed by statutory provisions under the Evidence Act 2008. The basic rule under s 134 provides that evidence that is privileged is not admissible. Further, s 132 of the Act requires the court to inform persons with these rights of their entitlement to make applications and objections.
What are the relevant Legislative provisions of Legal Professional Privilege?
Section 118 – Legal advice
Evidence is not to be adduced if, on objection by a client, the court finds that adducing the evidence would result in disclosure of—
(a) confidential communication made between the client and a lawyer; or
(b) a confidential communication made by 2 or more lawyers acting for the client; or
(c) the contents of a confidential communication (whether delivered or not) prepared by the client, lawyer or another person—
for the dominant purpose of the lawyer, or one or more of the lawyers, providing legal advice to the client.
Section 119 – Litigation
Evidence is not to be adduced if, on objection by a client, the court finds that adducing the evidence would result in disclosure of—
(a) a confidential communication made between the client and another person, or between a lawyer acting for the client and another person, that was made; or
(b) the contents of a confidential communication (whether delivered or not) that was prepared—
for the dominant purpose of the client being provided with professional legal services relating to an Australian or overseas proceeding (including the proceeding before the court), or an anticipated or pending Australian or overseas proceeding, in which the client is or may be, or was or might have been, a party.
Section 120 – Unrepresented parties
Evidence is not to be adduced if, on objection by a party who is not represented in the proceeding by a lawyer, the court finds that adducing evidence would result in disclosure of—
(a) a confidential communication between the party and another person; or
(b) the contents of a confidential document (whether delivered or not) that was prepared, either by or at the direction or request of, the party—
for the dominant purpose for preparing for or conducting the proceeding.
What evidence is protected?
Section 117 sets out the definitions of a ‘client’, ‘confidential communication’, ‘confidential document’, ‘lawyer’ and ‘party’.
A ‘client’ includes a lawyer who engages or employs a lawyer. It is not essential that there be a valid contract of retainer between the lawyer and client (Hawksford v Hawksford  NSWSC 31 at  per White J)
In respect of ‘confidential communication/document’, the obligation of confidentiality (whether express or implied) had to exist at the time the communication or document was made or prepared (although subsequent circumstances may result in loss of privilege). Confidentiality will not be inferred from a mere failure to give permission to disclose (Drabsch v Switzerland General Insurance Co Ltd  NSWSC 975 at  to  per Hamilton J).
‘Lawyer’ is a person who is admitted to the legal profession in an Australian jurisdiction or any other jurisdiction. A practising certificate is an important indicator but not conclusive on the issue of whether legal advice was sufficiently independent to constitute legal advice for the purposes of claiming privilege under the Act. Work by a lawyer that does not meet the dominant purpose test will not be covered by the privilege (Commonwealth v Vance (2005) 158 ACTR 47;  ACTCA 35).
In the case Apple v Wily, it was discussed that where there is ‘a relationship of trust and confidence to the lawyer entailing duties of the lawyer to promote the person’s interests, protect the person’s rights and respect the person’s confidences’ it is likely they will have established a lawyer-client relationship.
In NSW v Jackson  NSWSC 279, communication was discussed as being confidential when there is ‘an express or implied obligation not to disclose its contents, whether or not the obligation arises under law’.
‘Communication can extend to an unspoken obligation and an ethical, moral or social obligation.’ Ultimately, it turns on ‘the nature of the relationship in question and the circumstances, including conduct or conversations, surrounding the communications or documents in question’ and ‘the nature of the documents in question and the purpose and context of their communication’ (Rickard Constructions Pty Ltd v Rickard Hails Moretti Pty Ltd  NSWSC 234).
S 118 – Legal advice privilege
Section 18 provides a privilege for confidential communications made for, and confidential documents prepared for, the dominant purpose of a lawyer (or lawyers) providing legal advice to a client and includes:
(a) confidential communications made between a client and a lawyer (or between two or more lawyers acting for a client) (s118(a) and (b)); and
(b) confidential documents prepared by a client, lawyer or third party (for example, a proposed expert witness or an accountant) (s118(c)).
S 119 – Litigation privilege
Section 19 provides a litigation privilege for:
(a) confidential communications between the client and another person, or the client’s lawyer and another person, made for; and
(b) confidential documents prepared for (whether delivered or not), the dominant purpose of providing the client with legal services which relate to an Australian or overseas proceeding (current, pending or anticipated) in which the client is, or might be, a party.
Sections 118 and 119 reflect the common law doctrine of legal professional privilege which is based on the rationale in Baker v Campbell (1958) 153 CLR 52 at 128 per Dawson J that “the proper functioning of our legal system depends upon a freedom of communication between legal advisers and their clients which would not exist if either could be compelled to disclose what passed between them for the purpose of giving or receiving advice…”
Sections 118 and 119 prohibit the adducing of evidence if it would result in the disclosure of confidential communications or documents that were made or prepared for the dominant purpose of providing legal advice to a client (s 118) or providing professional legal services to a client regarding a proceeding in which the client is or may be or was/might have been a party (s 119).
These sections also apply to specified pre-trial disclosure requirements, e.g. the production of documents pursuant to a subpoena or notice to produce (Matthews v SPI Electricity Pty Ltd & Anor (No 5)  VSC 285 at ).
The party claiming the privilege bears the onus. The onus can be met by evidence which allows the court to infer the reasons why a communication was made (Hastie Group Ltd (in liq) v Moore  NSWCA 305 at ,  –).
When is client privilege waived or lost?
Section 121-126 of the Act sets out situations in which client legal privilege can be waived or lost. Section 121 provides that client legal privilege can be lost generally where:
(1) The evidence is relevant to a question concerning the intentions, or competence in law, of a client or party who has died (s 121(1)).
(2) If the evidence were not adduced, the court would be prevented, or could reasonably be expected to be prevented, from enforcing an order (e.g. the location of the child in a recovery order) (s 121(2)).
(3) Where the communication or document ‘affects the right of a person’ (s 121(3)).
Section 122 provides that client legal privilege can be lost by consent or waived. This can be done by:
- Consent of the client or party concerned (s122(1))
- The client acting in a way that is inconsistent with their privilege (s 122(2)), for example:
- Knowingly and voluntarily disclosing the substance of the evidence to another person (s 122(3)(a))
- Giving consent, express or implied, to another person to disclose the information (s 112(3)(b))
- Doing anything that shows they have given up the confidentiality.
Section 122(1) – ‘Consent’
Although s 122(1) refers only to ‘consent’, it has been held to include implied or imputed consent (Perpetual Trustees (WA) v EquuscorpPty Ltd  FCA 925; see also Avanesv Marshall  NSWSC 191 at - per GzellJ).
Section 122(2) – ‘Acted in a way that is inconsistent’
The underlying rationale for this provision is that client legal privilege ‘should not extend beyond what is necessary and…voluntary publication by the client should bring the privilege to an end’. ‘[I]t is inconsistency between the conduct of the client and maintenance of the confidentiality which effects a waiver’ (Mann v Carnell (1999) 201 CLR 1;  HCA 66 at  per Gleeson CJ, Gaudron, Gummowand CallinanJJ).
‘[W]aiver may be express of implied’ and ‘what brings [it] about is the inconsistency, which the courts, where necessary informed by considerations of fairness, perceive, between the conduct of the client and maintenance of the confidentiality; not some overriding principle of fairness operating at large’ (at  of Mann v Carnell)
Section 122(3)(a), (4), (5) – ‘Knowingly and voluntarily disclosed’
To determine if the person “knowingly” made the disclosure, evidence of that person’s state of mind may be relevant and admissible (QUBE Logistics (Vic) v Wimmera  VSC 659 at ).
‘Voluntary’ has been interpreted to mean something other than ‘under compulsion of law’ and disclosure that is not made by way of mistake (except in circumstances of formal discovery). For the privilege to be lost under this limb, the disclosure must be both knowing and voluntary. Inadvertent disclosure, for example, would not cause a loss of privilege.
‘Disclosed with express or implied consent’ – s 122(3)(b), (5)
For there to be effective consent under s 122(3)(b), that consent must be given knowingly and voluntarily.
S 122(5) sets out situations whereby privilege cannot be waived:
- as a result of duress or deception;
- under compulsion of law; or
- if the lawyer is also providing advice to the person, you tell or if you have a common interest relating to the proceedings.
S 124 deals with joint clients and permits one party represented by the same lawyer to adduce evidence of communications made by them to the lawyer or the contents of a confidential document prepared by or at the request of either of them.
S 125 provides that privilege is lost because of misconduct. Communications made in furtherance of a fraud or an offence or an act that renders a person liable to a civil penalty, or which relates to a deliberate abuse of statutory power.
S 126 provides that privilege is lost for related documents. Where it is ‘reasonably necessary’ to understand the unprivileged document, related documents are also not subject to privilege.
Viterra Malt Pty Ltd v Cargill Australia Ltd  VSCA 118 (11 May 2018)
- Client legal privilege – waiver – whether privilege in respect of pre-trial discovery waived.
- No waiver of privilege – appeal dismissed
Mann v Carnell  HCA 66; 201 CLR 1; 168 ALR 86; 74 ALJR 378 (21 December 1999)
- Legal professional privilege, loss of privilege, waiver by disclosure to third party.
- The principal question in this appeal is whether legal professional privilege which attached to certain communications was lost by a subsequent disclosure of those communications.
- No loss of legal professional privilege through waiver.
Goldberg v Ng (1995) 185 CLR 83
- The High Court considered circumstances where a solicitor voluntarily disclosed privileged material to the Law Society in relation to an investigation of a complaint by a client against him meant that privileged material may be required to be produced for inspection in different proceedings between the solicitor and the same client.
- The majority of the High Court held that although the Law Society had the power to compel the production of documents, voluntary production of documents by the solicitor was regarded as significant and held to be an implied waiver of legal professional privilege.
Seven Network Ltd v News Ltd (no 12)  FCA 348
- Sackville J dealt with the issue of whether the discovery of a document setting out a conclusion stated in legal advice waives privilege. He held that waiver occurred because there was voluntary disclosure of the gist or conclusion of the legal advice recorded in the document at .
Relevant professional conduct rules
Legal Professional Uniform Law Australian Solicitors Conduct Rules 2015
Rule 9. Confidentiality
9.1 A solicitor must not disclose any information which is confidential to a client and acquired by the solicitor during the client’s engagement to any person who is not—
9.1.1 a solicitor who is a partner, principal, director, or employee of the solicitor’s law practice, or
9.1.2 a barrister or an employee of, or person otherwise engaged by, the solicitor’s law practice or by an associated entity for the purposes of delivering or administering legal services in relation to the client,
EXCEPT as permitted in Rule 9.2.
9.2 A solicitor may disclose information which is confidential to a client if—
9.2.1 the client expressly or impliedly authorises disclosure,
9.2.2 the solicitor is permitted or is compelled by law to disclose,
9.2.3 the solicitor discloses the information in a confidential setting, for the sole purpose of obtaining advice in connection with the solicitor’s legal or ethical obligations,
9.2.4 the solicitor discloses the information for the sole purpose of avoiding the probable commission of a serious criminal offence,
9.2.5 the solicitor discloses the information for the purpose of preventing imminent serious physical harm to the client or to another person, or
9.2.6 the information is disclosed to the insurer of the solicitor, law practice or associated entity.
Rule 10. Conflicts concerning former clients
10.1 A solicitor and law practice must avoid conflicts between the duties owed to current and former clients.
10.2 A solicitor or law practice who or which is in possession of information which is confidential to a former client where that information might reasonably be concluded to be material to the matter of another client and detrimental to the interests of the former client if disclosed, must not act for the current client in that matter UNLESS—
10.2.1 the former client has given informed consent to the disclosure and use of that information, or
10.2.2 an effective information barrier has been established.
Rule 11. Conflict of duties concerning current clients
11.1 A solicitor and a law practice must avoid conflicts between the duties owed to two or more current clients.
11.2 Duty of loyalty If a solicitor or a law practice seeks to act for two or more clients in the same or related matters where the clients’ interests are adverse and there is a conflict or potential conflict of the duties to act in the best interests of each client, the solicitor or law practice must not act, except where permitted by Rules 11.3 and 11.4.
11.3 Where a solicitor or law practice seeks to act in the circumstances specified in Rule 11.2, the solicitor or law practice may, subject always to each solicitor discharging their duty to act in the best interests of their client, only act if each client—
11.3.1 is aware that the solicitor or law practice is also acting for another client, and
11.3.2 has given informed consent to the solicitor or law practice so acting.
11.4 Duty of confidentiality In addition to Rule 11.3, where a solicitor or a law practice acts for two or more clients in the same or related matters and the solicitor or law practice is in, or comes into, possession of information which is confidential to one client (the first client) which might reasonably be concluded to be material to the other client’s or clients’ matter and detrimental to the interests of the first client if disclosed, the solicitor and the solicitor’s law practice may not act or continue to act for the other client or clients unless each client’s informed consent—
11.4.1 permits the disclosure and use of that information for the benefit of the other client or clients, or
11.4.2 requires the establishment and maintenance at all times of an effective information barrier to protect the confidential information of each client.
11.5 Actual conflict arising between current clients in the course of a matter If a solicitor or a law practice acts for more than one client in a matter and, during the course of the conduct of that matter, an actual conflict arises between the duties owed to two or more of those clients, the solicitor or law practice may only continue to act for one of those clients (or for two or more of those clients between whom there is no conflict) in the following exceptional circumstances—
11.5.1 any client for whom the solicitor or law practice ceases to act has given informed consent to the solicitor or law practice continuing to act for the remaining clients, and
11.5.2 the duty of confidentiality owed to all of the clients, both those for whom the solicitor or law practice ceases to act and those for whom the solicitor or law practice continues to act, is not put at risk.
Legal Professional Uniform Conduct (Barristers) Rules 2015
Rule 60. Responsible use of Court process and privilege
A barrister must take care to ensure that the barrister’s advice to invoke the coercive powers of a court:
(a) is reasonably justified by the material then available to the barrister,
(b) is appropriate for the robust advancement of the client’s case on its merits,
(c) is not given principally in order to harass or embarrass a person, and
(d) is not given principally in order to gain some collateral advantage for the client or the barrister or the instructing solicitor or a third party out of court.
Rule 114. Confidentiality & conflicts
A barrister must not disclose ( except as compelled by law) or use in any way confidential information obtained by the barrister in the course of practice concerning any person to whom the barrister owes some duty or obligation to keep the information confidential unless or until:
(a) the information is later obtained by the barrister from another person who is not bound by the confidentiality owed by the barrister to the first person and who does not give the information confidentially to the barrister, or
(b) the person has consented to the barrister disclosing or using the information generally or on specific terms.
Conclusion: Balancing Confidentiality with Justice
Victoria’s approach to professional legal privilege is both robust and nuanced. It acknowledges the importance of preserving trust between lawyers and clients, while recognising that certain exceptional circumstances may require piercing that veil of confidentiality. The aim is always to strike a balance, ensuring both the rights of individuals and the overarching need for justice. As the Lawyer X incident exemplified, continuous vigilance and scrutiny are essential to uphold the sanctity of this privilege and the broader integrity of the legal system.