Background
Julie McEwan brought a malicious-prosecution claim against the Commissioner of Taxation, Commonwealth Director of Public Prosecutions and other Commonwealth defendants. She alleged, among other things, that the defendants ignored no-case submissions, failed to consider or disclose exculpatory material, and continued the prosecution despite information requiring its discontinuance.
The defendants denied those allegations and pleaded that they had reasonable and probable cause to prosecute, relying in part on three 2020 advices from counsel. They disclosed the advices to Ms McEwan. She then sought the underlying briefs, instructions, observations and material provided to counsel, as well as a broader category of documents recording discussions about the advices and other documents.
The Court’s Holding
Freeburn J held that, by pleading and relying on the counsel’s advices as support for reasonable and probable cause, the Commonwealth defendants had impliedly waived legal professional privilege over the briefs to counsel that led to those advices. The proper question was whether the defendants’ conduct was inconsistent with maintaining the confidentiality privilege protects, informed—but not governed—by considerations of fairness.
The advices were not self-contained: their meaning and opinions necessarily depended on the questions asked, instructions given and documents supplied. It was inconsistent to disclose and rely upon the answers while maintaining privilege over the corresponding communications comprising the briefs. The Court ordered disclosure of the briefs, including instructions, observations and documents forming part of them. It dismissed the broader request for Category C documents because their existence, direct relevance and disclosability had not been established beyond speculation.
Key Takeaways
- A party that pleads and deploys legal advice to justify conduct may waive privilege over the associated brief and instructions.
- Implied waiver turns on inconsistency with maintaining confidentiality, not a free-standing assessment of general fairness.
- A broad request for documents said merely to record discussions will fail without evidence that responsive, directly relevant documents exist.
Why It Matters
The decision illustrates the disclosure consequences of relying on legal advice as a substantive defence in civil litigation. A litigant cannot ordinarily use counsel’s favourable conclusion to establish reasonable and probable cause while withholding the material that framed and informed that conclusion.
For government and private litigants alike, the case underscores the need to assess privilege strategically before pleading legal advice. Reliance on an advice may open the related brief to scrutiny, even where other privileged communications remain protected.