Legal professional privilege: when does the court determine to waive the privilege?

In brief

The case of Conias Hotels Pty Ltd & Another v Brisbane City Council & another [2016] QPEC 59 concerned a directions hearing in the Planning and Environment Court for a pending application for costs on the part of Conias Hotels Pty Ltd and City Commercial Holdings Pty Ltd against the developer, Ross Nielson Properties Pty Ltd, to recover the costs of Conias and City Commercial Holdings in relation to the originating application which was discontinued by Conias and City Commercial Holdings.

The main issue was whether Conias and City Commercial Holdings were entitled to documents directly relevant to the advice received by the developer on its prospects of success in the proceeding.

While the Court determined that Conias and City Commercial Holdings were entitled to any document containing the prospects advice, the relief sought by Conias and City Commercial Holdings was too broad. Nonetheless, the Court decided to allow the parties an opportunity to address the Court in respect of the final orders being sought.

The originating application was discontinued on the basis that the development application the subject of the originating application was withdrawn by the developer

The developer intended to carry out a residential high-rise development at the edge of Brisbane central business district fronting Roma Street. Conias and City Commercial Holdings are the owners of commercial premises whose access would have been affected by the developer's proposed development. 

The Court made orders which allowed Conias and City Commercial Holdings leave under rule 15(1)(b) of the Planning and Environment Court Rules 2010 to discontinue the originating application on the grounds that the development application the subject of the originating application was withdrawn by the developer. 

The Court made further orders in October 2016 requiring applications and supporting material and reply be filed by the parties with respect to costs.

Draft orders were sought requiring the developer to provide documents to Conias and City Commercial Holdings directly relevant to the prospects advice received by the developer

The Court was provided with a draft set of six orders of which orders 2.1 and 2.2 were in dispute that were as follows:
Paragraph 12 of Mr Green's affidavit stated that the developer made the decision not to proceed with the proposed development despite having received a favourable prospects advice.

On 15 November 2016, the solicitors for Conias and City Commercial Holdings wrote to the developer's solicitors seeking a copy of the prospects advice referred to in Mr Green's affidavit. The developer's solicitors replied on the same day stating that the advice provided to Mr Green with respect to the prospects of the developer in the proceeding was provided orally.

This formed the basis upon which the developer sought to oppose the draft orders and the developer contended that there was no duty or obligation to go any further.

Court determined that legal professional privilege was waived and Conias and City Commercial Holdings were entitled to the relief sought for its application for costs

However, the Court was of the view that "there might well be written advice underlying the substance passed on to Mr Green by Mr Nielson". Accordingly, the relevant question was whether there was written advice in existence that had been provided to Mr Neilson which was then passed on orally to Mr Green.

The Court considered the disclosure of the prospects advice in the context of legal professional privilege and whether or not that privilege had been waived. 

The Court found that the prospects advice was given and acted upon by the developer and it was "in all probability, going to be a not insignificant or inconsequential "issue" in the cost proceedings". The Court adopted the words used by the Federal Court in Bennett v The Chief Executive Officer Australian Customs Service [2004] FCAFC 237 that:

• "It would be inconsistent and unfair, having disclosed and used the substance of the advice…to now seek to maintain privilege in respect of the relevant parts of that advice which pertain to the expressed conclusion. …"
• "That for a client to deploy the substance of effect of legal advice for forensic or commercial purposes, is inconsistent with the maintenance of the confidentiality that attracts legal professional privilege." 

For this reason, the Court determined that Conias and City Commercial Holdings were entitled to any document containing the prospects advice. However, the Court considered that the request for disclosure of copies of all the documents directly relevant to the allegation made in Mr Green's affidavit was too broad. Nonetheless, the Court was inclined to leave the matter to the parties to resolve until such time the Court was required to intervene.