In a recent judgment, Justice Le Poer Trench has clarified what disclosures may give rise to an implied waiver of legal privilege.
A bank was entitled to inspect communications between the wife and her solicitors in s 79A proceedings, because she had waived her right to client legal privilege.
The proceedings related to the banks application to set aside consent orders for property settlement between the wife and husband, who was made bankrupt by his own petition following the property division. The wife had referred to communications with her previous solicitors in an affidavit which were relevant to the bona fides of the property settlement agreement.
Justice Le Poer Trench J found that those references gave rise to an implied waiver of privilege, and the bank was entitled to inspect a category of documents.
His Honour cited Mann v Carnell (1999) 201 CLR 1, as the authority for the characteristics of an implied waiver. In that case, a majority of the High Court stated:
 It is inconsistency between the conduct of the client and maintenance of the confidentiality which effects a waiver of the privilege.
His Honour also set out the matters the court would need to consider before ruling that implied waiver of legal professional privilege had occurred, including:
- waiver of legal professional privilege may arise as a result of a passage in a pleading or an affidavit, oral evidence in a hearing or through the contents of a document provided by one party to another whether as part of a formal discovery process or not
- the disclosure of the communication may be made as part of the evidence in support of the case being relied upon by the party who is entitled to claim legal professional privilege in relation to that communication
- the disclosure must be seen as relevant or potentially relevant to an issue to be determined by the court
- the disclosure must illustrate conduct which shows inconsistency between a party seeking to maintain legal professional privilege in relation to some communications pertaining to or touching upon an issue in the case but not others relating to the same issue. For a waiver to be found, the court must determine that it would be unfair to a party to allow the inconsistency to stand.
Macquarie Bank Limited and B & Anor (2006) FLC