Navigating revisit claims and preserving legal privilege

In brief

Recent changes to the Limitations of Actions Act 1958 (Vic) permit plaintiffs, in certain circumstances, to apply for a previous settlement or judgment to be set aside - a revisit claim. This article looks at a question that often arises for defendants in responding to a revisit claim where the plaintiff seeks to set aside a previous settlement deed, as to whether the defendant's legal privilege is maintained if a Deed of Release is relied upon. 

A privileged position

Care needs to be taken in order to maintain privilege. Inadvertent disclosure or referring to contents of a previous advice may constitute a waiver of privilege. 

Pleading reliance on a prior deed in a Defence to proceedings does not abrogate or waive privilege if carefully worded and privilege is maintained. In particular, the plaintiff's commencement of an application to set aside a prior settlement does not constitute any action or conduct on the part of the defendant that would give rise to any waiver concerning the defendant's privileged documents. 

Conversely, the plaintiff's privilege is waived by seeking to set aside a binding deed of release. By placing the plaintiff's understanding and legal position in issue by way of application, the judicial process will necessarily involve testing the plaintiff's decision making and whether they were unduly influenced in accepting an offer and signing a deed. Relevantly, evidence of what was in the plaintiff's mind in deciding to accept an earlier offer and sign a Deed barring further claims is paramount. 

Documents and correspondence in a previous proceeding that were exchanged between the parties is known and not privileged. Accordingly, reliance on and discovery of the previous settlement deed by the defendant does not waive privilege over other documents in the defendant's possession. This has been confirmed in a recent successful unreported Judicial Registrar interlocutory ruling in the Victorian jurisdiction. In particular, the Court notes that the relevant paragraphs in the defence contained factual propositions concerning the nature and conduct of the previous claim and the contents of the deed. All of those matters were within the knowledge of both the plaintiff and the defendant at the time of resolving the prior claim. 

In the Evidence Act 2008 (Vic) the maintenance of privilege is set out primarily in sections 119 (which codifies legal privilege), 122 (loss of privilege) and 131A (objection). 

It may be that from a strategic point of view and/or on the particular facts of a revisit claim the Defendant decides to make a voluntary disclosure of relevant privileged documents in order to respond to an application to set aside the deed. 

We are not aware of case law to date that specifically deals with the maintenance of the Defendant's legal privilege for a filed revisit claim. For example in WCB v Roman Catholic Trusts Corp for Diocese of Sale (No 2) [2020] VSC 639 Justice Keogh touched on the application of the Limitation of Actions Act but did not determine the application with reference to legal advice received by or the intentions of the defendant. Watch this space!