Donate Child Support Calculator
Skip navigation

Hi, I'm Chruzena

Add Topic
Just joined and like to find out what exceptions apply to 'without prejudice' communications between lawyer and opposing self represented litigant
This is an interesting question worthy of a proper response.

The Australian Law Reform Commission (ALRC) in a paper detailed here ALRC Discussion Paper 73, "Client Legal Privilege and Federal Investigatory Bodies", Chapter 1, pages 22-23 discusses the difference between 'client legal privilege', as opposed to 'legal professional privilege'.

The privilege is held by the SRL not the legal professional. The terminology is used in Commonwealth and state evidence statutes. However, the common law privilege remains almost universally described by courts as being 'legal professional privilege'. The question is whether an SRL on one side has the benefit of privilege to the solicitor on the other side.

Privilege applies to all communication and it is not necessary to write "without Prejudice" in relation to claiming a legal privilege over communications, however many solicitors do write without prejudice save for costs when proposing an offer of settlement expressed to be without prejudice save as to costs. (Costs may be applied for)

The type of privilege you will be interested in is "advice". That is advice between parties being privileged or in confidence as opposed to litigation privilege.

You have to "waive" privilege to give it up. Once it is waived you cannot easily get it back later on.

To claim privilege the document has to be of a confidential nature and be treated as confidential. Privilege can be claimed on information or documents in whole or in part.

Legal professional privilege does not attach to a communication indefinitely. The privilege may be waived by the client, but not by the lawyer. Accordingly, a client's intentional or inadvertent actions in relation to their use of legal advice may preclude the client from asserting the privilege in future. As an SRL you have to be mindful that privilege is not indefinite or all encompassing.

As an SRL you may find that LPP may not have available 'client legal privilege', or 'legal professional privilege' as the intention is for privilege between solicitor and client and it may not apply to an SRL where the SRL has no legal representation. I would look at  Mann v Carnell [1999] HCA 66; 201 CLR 1; 168 ALR 86; 74 ALJR 378 (21 December 1999) I am not absolutely certain as to the answer to your question but as a general comment would certainly not send the solicitor on the other side any documents that are prejudicial to your case.

I hope this gives you some direction.

Executive Secretary - Shared Parenting Council of Australia
 Was my post helpful? If so, please let others know about the FamilyLawWebGuide whenever you see the opportunity
1 guest and 0 members have just viewed this.

Recent Tweets