LAWS50037 · Evidence And Proof
Privilege
A privilege is not an admissibility rule about reliability: the evidence may be perfectly relevant and admissible, yet a party can object to it being adduced to protect a higher interest — candour between lawyer and client, or the right not to self-incriminate. The legal question is: does a privilege attach, and has it been lost? For client legal privilege the test turns on dominant purpose (Esso Australia Resources Ltd v FCT) — not the older, narrower ‘sole purpose’ test: s 118 (advice privilege — a confidential communication or document made for the dominant purpose of legal advice) and s 119 (litigation privilege — for actual or anticipated litigation). Privilege is lost by waiver (s 122) or the fraud/abuse-of-power exception (s 125), and belongs to the client. The privilege against self-incrimination (s 128) lets a witness object, with a possible use-immunity certificate — distinct from the accused’s s 89 right to silence. This chapter also covers the related ‘proof’ strand the seminar groups here: the burden and standard of proof (ss 140–142, Briginshaw, Woolmington) and judicial warnings (s 165 / Jury Directions Act 2015 (Vic)).
What this chapter covers
- 01Privilege as a protection from being adduced, not a reliability rule
- 02Client legal privilege: s 118 advice · s 119 litigation
- 03The dominant-purpose test — Esso (not ‘sole purpose’)
- 04Loss of privilege: waiver (s 122) · fraud/abuse exception (s 125)
- 05Self-incrimination (s 128) and the use-immunity certificate
- 06Burden & standard of proof: ss 140–142 · Briginshaw · Woolmington
- 07Judicial warnings: s 165 / Jury Directions Act 2015 (Vic)
Worked example: is the file note privileged — and is it lost?
- +1Which privilege. Client legal privilege is in issue — either s 118 (advice) or s 119 (litigation), depending on whether it was made for advice or for anticipated litigation.
- +1The test (Esso, dominant purpose). Privilege attaches only if the note was made for the dominant purpose of legal advice/services — not the older ‘sole purpose’ test. A mixed advice/business document is privileged if advice was the dominant purpose.
- +1Apply to the mixed purpose. Because it doubles as a business risk summary, identify which purpose dominated; if business circulation was the dominant purpose, privilege does not attach at all.
- +1Loss by waiver (s 122). The director quoting the key advice to justify a decision is conduct inconsistent with maintaining confidentiality — a strong candidate for waiver of privilege.
- +1Conclude. Privilege attaches only if advice was the dominant purpose; even then, the director’s disclosure likely waives it (s 122). Note s 125 would also defeat privilege if the note furthered a fraud or abuse of power.
Key terms
- Client legal privilege
- A protection (not a reliability rule) preventing relevant, admissible evidence being adduced if, on the client’s objection, it would disclose a confidential communication or document made for the dominant purpose of legal advice (s 118) or legal services for actual/anticipated litigation (s 119). It belongs to, and is waived by, the client.
- Dominant purpose (Esso)
- The test for client legal privilege: the communication/document must have been made for the dominant purpose of legal advice or litigation. Esso Australia Resources Ltd v FCT settled this in place of the older, narrower ‘sole purpose’ test, so a document is privileged even if it also served a subsidiary purpose.
- Waiver (s 122)
- Privilege is lost where the client acts inconsistently with maintaining it — e.g. by disclosing the substance of the advice. Waiver can be express or imputed from conduct, and it is the client’s to make, not the lawyer’s.
- Fraud/abuse exception (s 125)
- There is no privilege for a communication or document made in furtherance of a fraud, an offence, or an act rendering a person liable to a civil penalty, or an abuse of power. Privilege never attaches in the first place — it is not merely lost.
- Self-incrimination (s 128)
- A witness may object to giving evidence that would tend to prove they committed an offence or are liable to a penalty; the court may require the evidence but grant a certificate (s 128(7)) giving a use immunity. Distinct from the accused’s s 89 right to silence.
Privilege FAQ
What is the test for client legal privilege?
The dominant purpose test (Esso Australia Resources Ltd v FCT): a confidential communication or document is privileged if it was made for the dominant purpose of a lawyer giving the client legal advice (s 118) or providing legal services for actual or anticipated litigation (s 119). This replaced the older, narrower ‘sole purpose’ test, so a document can be privileged even if it also served another, subsidiary purpose — applying ‘sole purpose’ is a classic error.
How is privilege lost?
Two main routes. Waiver (s 122) — the client acts inconsistently with maintaining confidentiality, for example by disclosing the substance of the advice; waiver belongs to the client, not the lawyer. The fraud/abuse exception (s 125) — communications made to further a fraud, offence or abuse of power are not privileged at all (privilege never attaches, rather than being lost). Spotting waiver and s 125 is where most privilege marks are.
How does s 128 self-incrimination differ from the s 89 right to silence?
They protect different people in different settings. s 128 is a witness’s privilege: a witness in the box may object to answering where the answer would tend to incriminate them, and the court may compel the evidence but grant a use-immunity certificate (s 128(7)). s 89 is about an accused’s right to silence: no adverse inference may be drawn from a refusal to answer an investigating official. Conflating the two is a common error.
Is privilege about whether the evidence is reliable?
No. That is the key conceptual point. Privileged evidence may be entirely relevant and otherwise admissible — privilege protects a different interest (candour between lawyer and client, or the right against self-incrimination) by stopping the evidence being adduced, regardless of its probative quality. So a privilege analysis is separate from the hearsay/opinion/discretion admissibility chain, even though it is run on the same brief.
Exam move
Privilege is in-scope but secondary to the hearsay/tendency/admissions/discretion core, so triage it: it surfaces where the brief contains lawyer–client communications (a note of advice, a letter to a solicitor) or a compelled witness at risk of self-incrimination. The marks are in (1) applying the dominant-purpose test (Esso) to the precise document — never ‘sole purpose’; (2) spotting waiver (s 122) or the fraud/abuse exception (s 125); and (3) distinguishing the witness’s s 128 privilege (with its use-immunity certificate) from the accused’s s 89 right to silence. Keep the adjacent ‘proof’ strand on the same tab — burden and standard of proof (ss 140–142, Briginshaw, Woolmington) and judicial warnings (s 165 / Jury Directions Act) — because they round out this chapter in problem questions.
