Professional Liability Guide

CHAPTER 17 – COMMON INTEREST PRIVILEGE

Where common interest privilege exists, normally all persons sharing the common interest must join in the waiver; however, while waiver by one does not automatically mean all parties have waived the privilege, fairness may require this result in particular circumstances. 656

Methods of maintaining privilege As the court’s analysis of whether privilege has been waived centres on the conduct of the parties and whether that conduct is inconsistent with maintaining privilege, parties may develop stronger grounds for relying on common interest privilege and rebut any suggestion that privilege has been waived by: ƒ ensuring correspondence containing legal advice does not also contain non-legal matters; ƒ not referring to any part of the legal advice in non-legal documents or public statements; ƒ not sharing legal documents with parties who do not share the requisite common interest; and ƒ marking documents as privileged and asserting that disclosure of the document does not purport to waive privilege and that the material is to be kept on a confidential basis.

656 Farrow Mortgage Services Pty Ltd (in Liq) v Webb (1996) 39 NSWLR 601.

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