Legal Professional Privilege in Queensland

What is legal professional privilege in Queensland civil litigation?

Legal professional privilege is more than a rule about evidence in court. It is a substantive common law immunity which permits a client to resist the compulsory production of certain confidential communications and documents. The privilege belongs to the client, not the solicitor.

Its purpose is practical. A person cannot obtain proper legal advice unless they can give a lawyer a candid account of the facts, including awkward documents and damaging details. The law protects that candour because the administration of justice depends on clients being able to consult lawyers fully and frankly. The High Court’s discussion in Daniels Corporation International Pty Ltd v Australian Competition and Consumer Commission [2002] HCA 49 confirms both the importance of the immunity and the need for clear statutory language before it can be removed.

Evidence legislation often uses the expression “client legal privilege.” In Queensland civil disclosure, “legal professional privilege” remains the familiar common law description. The essential inquiry is the same: what was the dominant purpose for which the communication or document was brought into existence, and was it confidential?

Legal professional privilege in Queensland: the disclosure process under rr 211–214 and 223(5) of the Uniform Civil Procedure Rules 1999 (Qld).

The two limbs of legal professional privilege

Privilege commonly arises under one of two overlapping limbs.

Legal advice privilege protects confidential communications between a client and lawyer made for the dominant purpose of obtaining or giving legal advice. Legal advice is not confined to stating what a statute or contract means. It can extend to advice about what should prudently and sensibly be done in the relevant legal setting. A lawyer merely receiving a copy of an ordinary business email does not convert it into a privileged document.

Litigation privilege protects confidential communications or documents made for the dominant purpose of a lawyer providing advice or professional legal services in relation to existing or reasonably anticipated litigation. It can extend to communications with third parties, including appropriate communications with witnesses and experts, where the required purpose is established.

“Reasonably anticipated” litigation is not the same as a remote possibility that someone may sue. The evidence should show that litigation was a real prospect when the document was created. A document made in the ordinary course of investigating an incident may later become relevant to a proceeding without having been made for the dominant purpose required for privilege.

The dominant-purpose test for legal professional privilege

The governing common law test is the dominant-purpose test adopted by the High Court in Esso Australia Resources Ltd v Commissioner of Taxation [1999] HCA 67. A communication or document is privileged if it was made or brought into existence for the dominant purpose of obtaining or giving legal advice, or for the conduct of existing or reasonably anticipated litigation.

The word “dominant” matters. The legal purpose need not be the only purpose, but it must predominate. Where two purposes are of equal weight, and only one attracts privilege, the test is not satisfied.

Purpose is determined objectively from all the circumstances. The court may consider the document’s terms, who asked for it, the instructions given to its author, when it was created, who received it, and what was happening in the dispute at the time. A label such as “privileged and confidential” is evidence of nothing on its own. Conversely, a document need not carry that label if its character and purpose establish the claim.

Mixed legal and commercial communications

The difficult documents in commercial litigation are rarely formal letters of advice. They are board papers, investigation reports, email chains and Microsoft Teams messages in which legal, operational and commercial issues are mixed together.

An email to in-house counsel may seek legal advice and also ask whether a proposed decision will upset a customer or affect a project timetable. The question is not whether a lawyer appears in the recipient line. It is whether the dominant purpose of the communication, viewed as a whole or in properly severable parts, was legal advice. In-house counsel must also have been acting in a professional legal capacity rather than as an executive or commercial decision-maker.

Where an email chain contains separate communications, assess each communication. A later privileged request for advice does not necessarily cloak every earlier email in the chain. Redaction may be appropriate where privileged material can be separated without producing a misleading or unintelligible document, but “confidential” and “irrelevant” are not substitutes for privilege.

Copies and collections of documents

A pre-existing document does not acquire privilege simply because it is sent to a solicitor. The original contract, invoice or site photograph remains what it was. There is, however, a narrower principle concerning a copy or selection brought into existence for a privileged purpose. In Commissioner of Australian Federal Police v Propend Finance Pty Ltd [1997] HCA 3, the High Court considered when copies of non-privileged originals may themselves attract privilege. The purpose for which the copy was made is critical; the underlying original does not disappear from disclosure merely because a privileged copy exists.

That distinction is easy to lose in electronic disclosure. A solicitor-curated bundle or chronology may reveal legal thought processes, while the source emails remain disclosable. The review should preserve the distinction rather than assigning the same privilege status to an entire folder.

How legal professional privilege operates during disclosure

The ordinary disclosure duty under r 211(1) of the UCPR extends to documents in a party’s possession or control which are directly relevant to an allegation in issue in the pleadings, or to a matter in issue where there are no pleadings. Under r 211(2), that duty continues until the proceeding is decided.

Rule 212(1)(a) removes a document from that duty where there is a valid claim to privilege from disclosure. The qualification “valid” is doing real work. A party cannot withhold an embarrassing document by asserting privilege in general terms.

Under r 214(1)(a), the list of documents must include both documents to which the disclosure duty relates and documents over which privilege from disclosure is claimed. Copies requested under r 214(1)(b) are delivered except for documents claimed to be privileged. If disclosure occurs by production for inspection, r 217(3)(c) still requires a list of the documents for which privilege is claimed.

This produces an important distinction:

• the existence of a privileged document is ordinarily disclosed in the list; but
• its privileged contents are withheld from inspection.

Preparing a defensible privilege schedule

A useful privilege description identifies the document without revealing the advice. It usually records the date, document type, author, recipient, and a concise basis for the claim, such as “confidential communication from client to external solicitor made for the dominant purpose of obtaining legal advice concerning termination rights under the contract”.

Descriptions such as “email — privileged” or a single claim over hundreds of documents invite challenge. Category descriptions can be used where justified, but the schedule must remain intelligible and permit individual documents to be located if privilege later ceases or the court rejects the claim.

The Court of Appeal in Interchase Corporation Ltd (in liq) v Grosvenor Hill (Queensland) Pty Ltd (No 2) [1997] QCA 469; [1999] 1 Qd R 163 held that documents must be described sufficiently to facilitate production of the particular document if privilege ceases or the court orders production. The description need not itself disclose enough material for the opponent to form a concluded view that the privilege claim is correct. That would risk revealing the very information protected.

Challenging a claim of legal professional privilege under r 213

If another party challenges the claim, r 213(2) requires the claiming party to file and serve an affidavit stating the claim within seven days after the challenge. By r 213(3), the affidavit must be made by an individual who knows the facts giving rise to it.

That last requirement is sometimes underestimated. A solicitor may be the correct deponent where the solicitor commissioned a report, attended the communications and knows why the documents were created. A solicitor cannot safely swear by assumption about documents created before the firm became involved. The appropriate deponent may be a director, employee, former solicitor or other person who can explain the circumstances first-hand.

The affidavit should establish, without disclosing the privileged substance:

• the relationship between the relevant people;
• the circumstances and timing of the communication or document;
• the legal work or anticipated litigation to which it related;
• the purpose for which it was created;
• why that purpose was dominant; and
• how confidentiality was maintained.

Bare conclusions are vulnerable. Saying “I am advised and believe the documents are privileged” does not establish the historical facts from which privilege arises. The court may inspect a disputed document to decide an objection under r 223(5), although inspection is not a substitute for proper evidence from the party carrying the onus.

Confidentiality is necessary, but confidentiality alone is not privilege

Privilege protects confidential legal communications, not confidential information generally. A commercially sensitive pricing model, internal misconduct report or settlement authority may deserve strict handling, yet it is not privileged unless the legal test is met.

Confidentiality can also be lost. Circulation beyond those who reasonably need to receive the communication may undermine the claim or support an argument that privilege has been waived. That does not mean every communication to a third person destroys privilege. Disclosure may be consistent with confidentiality where it is made for a limited purpose to someone sharing a relevant interest, or where the third person is an agent necessary to the legal communication. The circumstances and purpose matter more than labels.

For corporate clients, settle privilege protocols before the disclosure review begins. Where possible, separate legal advice from ordinary business discussion, keep distribution lists tight, and tell internal recipients not to forward the advice. Those steps do not manufacture privilege. They preserve the confidentiality on which a valid claim depends.

Waiver of legal professional privilege

The modern test is inconsistency. In Mann v Carnell [1999] HCA 66, the High Court explained that privilege may be lost where the client’s conduct is inconsistent with maintaining the confidentiality which the privilege protects. Waiver may be express, but many disputes concern implied waiver.

Common risk points include:

• publishing legal advice or its substance to a person outside the confidential relationship;
• deploying the effect or conclusion of advice to obtain an advantage while withholding the advice needed to test that assertion;
• relying on “legal advice” as an explanation or defence in pleadings, affidavit evidence or submissions;
• selectively disclosing part of an advice where fairness requires the balance or an associated communication to be seen; and
• using expert material in a way inconsistent with maintaining confidentiality over connected communications.

Reference to the mere fact that advice was obtained does not automatically waive privilege. Nor does every reference to a document in a pleading or affidavit. The question remains what has been disclosed and whether the client’s conduct is inconsistent with confidentiality. A careful pleading can state that advice was obtained without putting the substance or correctness of that advice in issue; a pleading which says the client acted reasonably because counsel advised that the proposed act was lawful may cross the line.

Real-world example: the board paper that quotes counsel

A company receives counsel’s advice about whether it may terminate a long-term supply contract. The managing director prepares a board paper that quotes counsel’s conclusion and gives it to the board, the company’s banker, and a prospective purchaser. The original advice is likely privileged when created. The later distribution requires a separate waiver analysis. If the company then pleads that its termination was reasonable because it acted on counsel’s advice, it may not be able to deploy that conclusion while withholding the reasoning necessary for the other party to test it.

The safer course is to keep legal advice in a confined legal paper, state commercial recommendations separately, control recipients, and obtain advice before referring to privileged conclusions in evidence or pleadings.

Case example: inadvertent disclosure in Expense Reduction Analysts v Armstrong

In Expense Reduction Analysts Group Pty Ltd v Armstrong Strategic Management and Marketing Pty Ltd [2013] HCA 46, privileged documents were mistakenly listed as non-privileged and supplied during discovery. The High Court held that, in the circumstances, the mistake did not amount to waiver. The usual response was to permit correction of the list and require the documents to be returned.

The decision is not permission to run a careless production. It reflects the obligation to conduct litigation justly and efficiently and recognises that mistakes can occur in large disclosure exercises. Once the error is discovered, the producing party should give prompt, precise notice, identify the affected documents, explain that production was inadvertent, request that they not be read or used, and seek their return or deletion. Delay and equivocal conduct can make the position harder.

The receiving solicitor should stop reviewing the material and deal with the notice responsibly. Attempting to exploit an obvious disclosure error is likely to generate interlocutory cost, distract from the merits and invite orders that could have been avoided.

Technical safeguards remain essential: privilege coding, exclusion rules, duplicate controls, production-set validation and a final check that the privilege schedule matches the withheld documents. Email families deserve special attention because a privileged attachment may be produced through a different parent email if the review platform’s family settings are wrong.

Legal professional privilege and expert reports in Queensland

Queensland’s rule for experts is a major departure from the ordinary privilege position. Rule 212(2) of the UCPR provides that a document consisting of a statement or report of an expert is not privileged from disclosure.

The rule is directed to the character of the document, not merely whether the party ultimately serves or relies on it. Calling a preliminary document a “working draft” does not determine the issue. A draft report can still consist of a statement or report of an expert.

The Court of Appeal addressed the scope of the rule in Enkelmann v Stewart [2023] QCA 155. The Court explained that r 212(2) abrogates privilege for a document brought into existence as an expert statement or report, including a draft, but does not extend to every document which records something an expert has said. A solicitor’s file note of a conference, made as part of the solicitor’s work and recording an expert’s preliminary views, is not for that reason itself a statement or report of the expert. It may remain privileged if the ordinary requirements are met.

That distinction is precise, not semantic. A solicitor cannot avoid r 212(2) by dictating the expert’s report into a file note or by changing the heading. The authorship, purpose, form and substance of the document all matter.

Case example: what Enkelmann v Stewart means for an expert conference

Suppose a structural engineer gives preliminary views during a confidential conference with the solicitors conducting a building-defect proceeding. The solicitor records those views as part of a broader file note dealing with evidentiary gaps, further instructions and litigation strategy. If the note was made for the dominant purpose of conducting the litigation, it may attract privilege and does not automatically become an expert statement or report under r 212(2).

If, instead, the engineer prepares a memorandum setting out findings on the defects and sends it to the solicitor for discussion before the formal report, the memorandum may be a draft statement or report. In Queensland, r 212(2) may require its disclosure despite the confidential retainer and litigation purpose.

The later use of the expert evidence must also be considered. The Court in Enkelmann examined whether the appellants’ conduct was inconsistent with maintaining privilege over the file note. Waiver is not established merely because a final expert report is served, but it can arise where the privileged communication is sufficiently connected with what the party has deployed and fairness requires disclosure.

Practical controls when briefing experts

The best control is not to ask an expert to conceal preliminary work. It is to manage the retainer with the Queensland rule in view.

• Give accurate, complete instructions and assume that an expert statement, report or draft may be disclosable.
• Separate factual source documents from legal commentary and avoid argumentative instructions designed to lead the opinion.
• Do not ask for serial written “informal opinions” in the belief that they fall outside r 212(2).
• Keep solicitors’ confidential litigation-strategy notes distinct from documents authored or adopted by the expert.
• Review whether an oral conference, targeted questions or staged factual instructions are appropriate, while ensuring the expert has all material needed to give an independent opinion.
• Reassess waiver before serving, tendering or relying upon an expert report.

The expert’s independence remains paramount. Privilege management cannot justify suppressing an adverse opinion, coaching the expert or presenting a report which does not fairly reflect the expert’s reasoning.

Communications with third parties, investigators and insurers

Litigation is rarely conducted through solicitor-client emails alone. Insurers, brokers, accountants, investigators, claims managers and technical consultants may all be involved. Their documents are not privileged merely because litigation exists or lawyers direct the work.

For litigation privilege, the dominant purpose of the particular communication or document must be the provision of legal services in relation to existing or reasonably anticipated litigation. An insurer’s routine claims assessment, an investigator’s report commissioned to decide whether an employee should be disciplined, or an accountant’s ordinary audit work may have substantial non-legal purposes.

Before commissioning a third-party report, define the task accurately. Record whether litigation is reasonably anticipated, identify the legal services to which the report will contribute and avoid combining unrelated operational tasks in the same retainer. Contemporaneous instructions are often much more persuasive than an affidavit prepared months later after privilege is challenged.

Real-world example: the incident investigation with two purposes

A principal contractor commissions a report immediately after a crane incident. The report is required both to improve site safety and to assist solicitors in anticipated injury and property-damage claims. If safety remediation and litigation advice are equally important purposes, the dominant-purpose test may not be met. Copying the solicitor into the commissioning email will not cure that problem.

A sounder process is to identify genuinely distinct workstreams. The operational team can prepare the mandatory safety investigation, which should be treated on the assumption that it may be disclosable. If litigation is reasonably anticipated, the solicitors may separately commission focused confidential work needed for legal advice or the conduct of the proceeding. The separation must reflect reality; it cannot be an artificial paper arrangement imposed after the event.

When legal professional privilege does not apply

No privilege arises merely because a document is relevant to legal risk, embarrassing, commercially sensitive or stored on a solicitor’s file. Common exclusions include:

• communications which were not confidential when made;
• documents created for a purpose other than obtaining or giving legal advice or conducting existing or reasonably anticipated litigation;
• pre-existing source documents, even if later supplied to a lawyer;
• communications made in furtherance of fraud, crime or other improper purpose; and
• expert statements and reports caught by r 212(2).

The improper-purpose principle does not depend on the lawyer being complicit. In Attorney-General (Northern Territory) v Kearney [1985] HCA 60, the High Court addressed the limits of privilege where legal communications form part of an improper purpose. An allegation of impropriety is serious and requires a proper evidentiary foundation; it should not be used as a speculative device to obtain inspection of an opponent’s legal file.

Privilege and documents mentioned in pleadings or affidavits

Rule 222 of the UCPR permits a party, by written notice, to require production and inspection of a document mentioned in another party’s pleading, particulars or affidavit. The rule does not state that privilege is abolished merely because a document has been mentioned.

The drafting question is still significant. A neutral reference to the existence of advice may preserve privilege, while disclosing and relying on its substance may amount to waiver under the Mann v Carnell inconsistency test. Before referring to advice in an affidavit, ask why the reference is needed and whether the client is prepared for the possibility that the advice and related communications will have to be produced.

A practical privilege review before disclosure

Address privilege at the start of collection, not as a rushed final filter before production.

1. Map the legal relationships. Identify external solicitors, counsel, in-house lawyers, agents and third-party consultants, and the periods in which each was involved.
2. Fix the relevant chronology. Determine when litigation became reasonably anticipated. Different dates may apply to different claims.
3. Separate relevance from privilege. First decide whether the document is directly relevant under r 211. Then apply the privilege analysis. A document is not privileged merely because a party would prefer not to disclose it.
4. Assess each communication or severable part. Do not assume an entire email chain, attachment family, folder or investigation is privileged.
5. Record the factual basis. Capture author, recipients, confidentiality, purpose, anticipated proceeding and the basis for saying the legal purpose was dominant.
6. Review waiver. Check pleadings, affidavits, expert reports, correspondence, board materials and prior voluntary disclosures for inconsistent use.
7. Treat expert material separately. Apply r 212(2) to drafts, memoranda and other documents whose substance may be an expert statement or report.
8. Reconcile the production. Confirm that every document on the privilege schedule is withheld, that no privileged attachment appears elsewhere, and that redactions are technically secure.

The review remains live because disclosure continues until the proceeding is decided. New documents, amended pleadings, a served expert report or a forensic decision to rely on legal advice can alter the analysis. Privilege is best treated as a continuing litigation issue, not a one-off coding exercise.

Key points about legal professional privilege and disclosure in Queensland

• Privilege belongs to the client and protects confidential legal communications from compulsory production.
• The dominant purpose, assessed objectively, controls the claim.
• Copying a lawyer into a communication does not make it privileged.
• A privileged document is ordinarily listed but withheld from inspection under the UCPR.
• A challenge under r 213 triggers a seven-day deadline for an affidavit from a person who knows the relevant facts.
• Waiver turns on conduct inconsistent with maintaining confidentiality, not on formula or intention alone.
• Inadvertent production does not necessarily waive privilege, but it must be addressed promptly.
• Queensland r 212(2) removes privilege from expert statements and reports, including documents which are in substance drafts.
• A solicitor’s privileged file note of an expert conference is not automatically an expert statement or report, but later deployment of the expert evidence may raise waiver.

Frequently Asked Questions About Legal Professional Privilege in Queensland

What is legal professional privilege?

Legal professional privilege protects certain confidential communications and documents from compulsory disclosure. It generally applies where the communication or document was created for the dominant purpose of obtaining or giving legal advice, or providing legal services in connection with existing or reasonably anticipated litigation.

The privilege belongs to the client, not the solicitor. Only the client, or someone authorised to act for the client, can waive it.

Are communications with my solicitor automatically privileged?

No. A communication with a solicitor is not privileged merely because a solicitor sent or received it.

The communication must be confidential and created for the dominant purpose of obtaining or providing legal advice or conducting existing or reasonably anticipated litigation. Ordinary commercial discussions, administrative correspondence and communications in which the solicitor acts as a business adviser may not qualify.

Copying a solicitor into an existing email chain does not make the earlier emails privileged.

Do privileged documents have to be included in a Queensland list of documents?

Yes. Although r 212(1)(a) of the Uniform Civil Procedure Rules 1999 (Qld) excludes documents subject to a valid privilege claim from the duty of disclosure, r 214(1)(a) requires privileged documents to be identified in the list of documents.

The document should be described sufficiently to identify it and explain the basis of the claim without revealing the privileged communication. The document itself is withheld from inspection.

What happens if another party challenges a claim of privilege?

Under r 213(2) of the UCPR, the party claiming privilege must file and serve an affidavit stating the claim within seven days after it is challenged.

The affidavit must be made by an individual who knows the facts giving rise to the claim. It should address matters such as who created the document, why it was created, the circumstances in which it was communicated and how its confidentiality was maintained.

If the dispute reaches the court, the court may inspect the document under r 223(5) to decide whether the objection to disclosure is justified.

Are draft expert reports protected by legal professional privilege in Queensland?

Usually not in civil proceedings governed by the UCPR. Rule 212(2) provides that a document consisting of an expert’s statement or report is not privileged from disclosure.

This can include preliminary and draft reports, even where they were prepared confidentially at the request of a solicitor. Changing the title to “working notes” or “confidential draft” will not protect a document that is, in substance, an expert statement or report.

A solicitor’s confidential file note of an expert conference may be treated differently. In Enkelmann v Stewart [2023] QCA 155, the Queensland Court of Appeal held that a solicitor’s file note recording an expert’s preliminary views was not automatically an expert statement or report under r 212(2).

Can legal professional privilege be waived accidentally?

Yes. Privilege may be waived where the client acts inconsistently with maintaining the confidentiality of the communication.

Waiver can arise by disclosing legal advice to outsiders, quoting or summarising its substance, relying on the advice to support a claim or defence, or disclosing only a favourable part where fairness requires the remainder to be produced.

Mentioning that legal advice was obtained does not necessarily waive privilege. The risk increases where a party reveals or relies upon the substance, effect or conclusion of that advice.

What should I do if a privileged document is accidentally disclosed?

The error should be addressed immediately. The producing party should identify the affected document, notify the receiving solicitor that it was produced inadvertently, request that it not be read or used, and seek its return or secure deletion.

Accidental production does not necessarily amount to waiver. In Expense Reduction Analysts Group Pty Ltd v Armstrong Strategic Management and Marketing Pty Ltd [2013] HCA 46, the High Court held that inadvertent disclosure did not waive privilege in the circumstances and that the mistake should ordinarily have been corrected by returning the documents.

A prompt and unequivocal response is essential. Delay or later reliance on the disclosed material may complicate the privilege claim.

Are communications with accountants, investigators or other consultants privileged?

Not automatically. Communications with third parties may attract litigation privilege where they were created confidentially for the dominant purpose of providing legal services in relation to existing or reasonably anticipated litigation.

A report prepared principally for an operational, commercial, regulatory or disciplinary purpose will not necessarily become privileged because a solicitor commissioned it or received a copy.

The purpose should be recorded when the third party is retained. Where legal and operational investigations are genuinely separate, they should be commissioned and conducted as separate workstreams.

Does marking a document “privileged and confidential” protect it from disclosure?

No. The label does not determine whether privilege exists.

The court considers the document’s actual purpose, content, authorship, recipients and surrounding circumstances. An ordinary commercial document does not become privileged because it is marked “privileged and confidential”. Equally, a document satisfying the legal test may be privileged even if it carries no such label.

The marking can help demonstrate an intention to maintain confidentiality, but it cannot replace the dominant-purpose requirement.

Does legal professional privilege last after the litigation ends?

Yes. Privilege does not ordinarily expire when the advice has been given or the proceeding has concluded. It continues unless the client waives it, confidentiality is lost in circumstances inconsistent with maintaining the privilege, or another recognised exception applies.

The protection may therefore remain relevant in later litigation, regulatory investigations, commercial transactions and subsequent disputes. Privileged files should continue to be stored and circulated carefully after the original proceeding ends.

Queensland Disclosure and Evidence Guides

Our Queensland civil litigation disclosure series covers the principal procedures for obtaining and exchanging documentary evidence under the UCPR: