High Court Affirms Test For Waiver Of Legal Professional Privilege

Liam Prescott - Senior Associate

On Thursday 7 August the High Court's 4-1 majority

decision in Osland v Secretary to the Department of Justice

[2008] HCA 37 affirmed the relevant test outlined in its

earlier decision in Mann v Carnell (1999) 201 CLR 1 regarding

waiver of legal professional privilege by conduct. The test

remains one based on a party's conduct in the context and

circumstances of each case, and in the light or any

considerations of fairness that arise. The facts of the case

related to a murder conviction and a petition for mercy that

was refused by the Victorian Attorney-General. The High Court

majority's application of the test resulted in a finding

that no waiver of legal professional privilege occurred in

circumstances where the Attorney- General referred in a press

release to a joint memorandum of legal advice he had...