No litigation privilege in anticipation of non-”truly adversarial” proceedings

Ingot Capital Investments Pty Ltd v Macquarie Equity Capital Markets Ltd [2006] NSWSC 530 says the litigation limb of legal professional privilege at common law is not available where the communication was brought into existence for the dominant purpose of use in or preparation for litigation which is not truly adversarial (the situation is no better under the Uniform Evidence Acts, where the litigaiton limb is limited to anticipated litigation in courts, defined to mean places “required” to apply the laws of evidence). The litigation in point was administrative review by the AAT. Justice Neil Young made a similar finding in AWB v Honourable Terence Rhoderic Hudson Cole [2006] FCA 571, in relation to documents prepared for use in, or preparation for, the AWB Royal Commission. I wonder whether we will one day see a suit against a lawyer for negligently failing to inform clients of this exception to what is generally understood to be the unfettered secrecy of lawyer-client communications.

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