you're reading...
Australian Law and Politics

State Of Mind And Waiver Of Privelege

Do you impliedly waive privilege in your legal advice by putting in issue your state of mind? Generally speaking, two distinct approaches emerged, a broad view and a narrower view, but recently the narrower view has prevailed. The NSW Court of Appeal recently signalled however that it might be prepared to take a broader view of issue waiver when a party has put in issue his or her state of mind.
Broad vs narrow

Key Point

  • If the Court of Appeal’s comments are followed, framing a case might be enough to inadvertently waive privilege.

An example of the broad view is the decision in Telstra Corporation Ltd v BT Australasia Pty Ltd (1998) 85 FCR 152. BT claimed that Telstra had engaged in misleading and deceptive conduct which induced it to enter into an agreement. Telstra then sought discovery of legal advice received by BT, on the basis that the advice went to BT’s state of mind when it entered into the agreement. Even though BT did not refer to any legal advice, the Court found that privilege had been waived.

The High Court then handed down its decision in Mann v Carnell (1999) 201 CLR 1. By focusing on the notion of inconsistency, Mann v Carnell caused a shift away from the broad formulation in Telstra. For example, in Liquorland (Australia) Pty Ltd v Anghie (2003) 7 VR 27 Justice Byrne held that the putting in issue of a relevant state of mind (one of reliance or otherwise) is merely the starting point for an examination of whether privilege has been waived. The chronological coincidence of the legal communication and the establishment of that state of mind does not of itself determine the question.
The Comments in Archer

Council of the New South Wales Bar Association v Archer [2008] NSWCA 164 concerned the application of waiver in the context of certain provisions of the Legal Profession Act 1987 (NSW). In that case Justice Hodgson (with Justice Handley agreeing) made certain general obiter observations about the common law principles of issue waiver:

“What would involve inconsistency and relevant unfairness is the making of express or implied assertions about the content of the privileged communications, while at the same time seeking to maintain the privilege. In this respect, it may be sufficient that the client is making assertions about the client’s state of mind, in circumstances where there were confidential communications likely to have affected that state of mind” [emphasis added].

Is this a return to the broad view in Telstra, and perhaps a widening of the scope of that principle beyond Telstra and certainly beyond Mann v Carnell?

“Likely to have affected”

Previous cases referred to the likelihood of legal advice having contributed to a state of mind in the context of the dates and descriptions of specific known documents. But what does “likelihood” mean here? It could have two meanings:

  • it could qualify the existence of confidential communications; or
  • it could qualify the probability of those communications having affected the privilege holder’s state of mind.

If it refers to the likelihood of the existence of the documents, a court would then need to determine the likelihood that a party has obtained legal advice, which would throw up some practical problems:

  • Should a court assume that a large corporate entity is more likely to have received legal advice than an individual litigant?


  • An affidavit of documents might not reveal the existence of legal advice because of the practice of using a general catch-all to describe privileged documents, so a notice to produce might be necessary – but neither of these will reveal if oral advice has been taken. How then should a court determine if it has been?

If “likely” is intended to qualify the impact of a privileged communication on the privilege-holder’s state of mind, additional complex questions arise:

  • Is the test an objective or subjective one?
  • What degree of likelihood is required?
  • How is the test to be applied where there is more than one decision-maker, for example, several company directors?

A return to the broad old days?

It may be that the comments of the Court of Appeal in Archer were intended to be read more narrowly. This would be consistent with earlier decisions of Justice Hodgson appearing to support the narrow view.

The narrow view certainly has much going for it as a matter of principle; not only does it protect the status of privilege as an essential common law right, it is consistent with the test in Mann v Carnell. The necessary unfairness stems from the inconsistency which would arise if a privilege-holder were allowed on the one hand to use privileged material to advance his or her position, while at the same time asserting privilege over that material.

If, however, the Court is signalling that it is prepared to reconsider the position, and the broader view were to become accepted again, there could be serious ramifications for litigants. It could be that merely pleading a cause of action which is based on reliance (for example, a section 52 TPA claim) could be said to be inconsistent with a claim for privilege, even though the privilege-holder has not disclosed part of legal advice – indeed, he or she would not be seeking to rely on any advice.

It is clear that, nearly a decade after Mann v Carnell, the profession would benefit from a clarification of these issues at appellate level.

Original article by Clayton Utz

About Craig Hill

Teacher and Writer. Writing has been cited in New York Times, BBC, Fox News, Aljazeera, Philippines Star, South China Morning Post, National Interest, news.com.au, Wikipedia and others.


No comments yet.

Leave a Reply

Fill in your details below or click an icon to log in:

WordPress.com Logo

You are commenting using your WordPress.com account. Log Out /  Change )

Twitter picture

You are commenting using your Twitter account. Log Out /  Change )

Facebook photo

You are commenting using your Facebook account. Log Out /  Change )

Connecting to %s

If you liked what you just read, click "Subscribe" to become a follower of the Craig Hill site. You will receive an email each time a new post is published.

Join 15,358 other followers

An archive of all my old posts

Follow me on Twitter

Most Recent Posts Post on My Blog About China: China News

China’s new aircraft carrier Fujian: Hit or miss 

China’s new aircraft carrier Fujian: Hit or miss 

While the United States was wrapping up its Valiant Shield 2022 exercise on 17 June, China launched its third aircraft carrier with all the fanfare. The launch was postponed twice due to logistical and technical issues. The aircraft carrier has been named Fujian with the hull number 18. It has been under construction at the world’s largest […]

In Beijing’s BRICS summit, Putin is back on the world stage

In Beijing’s BRICS summit, Putin is back on the world stage

When Russian President Vladimir Putin dials into the virtual BRICS summit hosted by Beijing on Thursday, it will be his first time attending a forum with the heads of major economies since launching an invasion of Ukraine earlier this year. For Putin, this could offer a welcome picture: his face beamed onscreen alongside other leaders […]

U.S. not seeking to create “Asian NATO,” defense secretary says

U.S. not seeking to create “Asian NATO,” defense secretary says

The U.S. Defense Secretary emphasized partnership as the main priority for the American security strategy in the Indo-Pacific during a keynote speech on Saturday. However, Lloyd Austin stressed that the U.S. does not seek to create “an Asian NATO.” Austin spoke for half an hour at the First Plenary Session of the Shangri-La Dialogue 2022 […]

Why Chinese warplanes are ‘playing chicken’ with US allies

Why Chinese warplanes are ‘playing chicken’ with US allies

Chinese warplanes are targeting US allies in a high-stakes “game of chicken” over the Asia-Pacific that risks spiraling out of control — raising the risk of an incident that could spark war. That is the view of analysts who warn increasingly aggressive maneuvers by Chinese fighter jets — accused of endangering both Canadian and Australian […]

Has China lost Europe?

Has China lost Europe?

In April and May, as Russia’s war in Ukraine entered its third month, China sent a special envoy to meet with officials in eight central and eastern European countries. The timing was not coincidental: in the two months since Russia had launched its invasion, China’s standing in Europe had sunk to new lows. European governments […]

Xi’s re-election: Opportunity for the world, curse for China

Xi’s re-election: Opportunity for the world, curse for China

China is gearing up for the 20th National Congress of the Chinese Communist Party to be held later this year. According to the consensus view, President Xi Jinping’s historic bid for a third term as the party’s General Secretary is assured. The Chinese President and General Secretary of the Chinese Communist Party (CCP), Xi Jinping, doesn’t have much […]

China: A political view

China: A political view

I read Dr Mohamad Zreik[2] interesting and comprehensive article on the growth of China’s economy. It has come a long way since the days of Mao Tse Tung and the days of his communist experiment, the Long March, when millions died. The years that followed Mao set the path from which the economy took off […]

Math books outrage China with ‘ugly, sexually suggestive, pro-American’ images

Math books outrage China with ‘ugly, sexually suggestive, pro-American’ images

China has ordered a nationwide review of school textbooks after illustrations deemed ugly, sexually suggestive and secretly pro-American caused public uproar. The news has alarmed some experts and parents who fear the campaign is turning into a political witch hunt and represents an unnecessary tightening of the country’s already stringent censorship of cultural publications. The […]

Why Biden didn’t mean what he said about Taiwan

Why Biden didn’t mean what he said about Taiwan

The White House has been left scrambling a little after President Joe Biden suggested on May 23, 2022, that the US would intervene militarily should China attempt an invasion of Taiwan. The comment, which Biden made during a trip to Japan, was taken by some observers as a deviation from the official US line on […]

United States outmanoeuvres Russia once again? 

United States outmanoeuvres Russia once again? 

In a recent briefing, the US Director of National Intelligence (DNI), Avril Haines warned, “I would characterize it as the Russians aren’t winning, and the Ukrainians aren’t winning, and we’re at a bit of a stalemate here.” So, where is the Russia-Ukraine war heading? What is Russian President Putin planning next? Is Europe ready for […]

%d bloggers like this: