Loose Lips Sink Ships - But When Will They Waive Privilege In Legal Advice?

Key Points

Disclosing the conclusion of legal advice is not always

a common-law waiver of privilege.

It depends on the circumstances of the case, but should

not be done without a great deal of thought!

When you have legal advice that supports your position, it can

be very tempting to tell the world about it, or at least use it as

a negotiating tool, but that temptation is usually curbed by the

knowledge that this will waive privilege in the advice. What about

merely stating the conclusion or gist of the advice?

There has been a divergence of opinion in the courts as to

whether any disclosure of the conclusion or gist

will be enough to waive privilege (we've looked at this before

here). Some of that confusion has been cleared away by the High

Court decision in Osland v Secretary to the Department of Justice

[2008] HCA 37 (7 August 2008) on the common-law implications of a

disclosure of the gist or conclusion.

The press release and the privilege

In 1996, Mrs Osland was convicted of murdering her husband in

what has become a very high-profile case in Victoria. Having

exhausted the appeals process, she petitioned the Governor of

Victoria for a pardon.

On 6 September 2001, the Victorian Attorney-General announced

that the Governor had denied Mrs Osland's petition. The usual

practice with petitions for pardon is not to release any reasons

for the decision, but the Attorney-General noted in the press

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