Knowing about legal professional privilege (LPP), when it applies and how it can be protected (and lost) is not something that may be on everyone’s radar on a day-to-day basis; by the time it is, it is usually already too late.

This article looks at a recent decision of the Supreme Court of South Australia concerning LPP and how LPP can be held and treated by more than 1 person: PK v The Salesian Society Inc [2025] SASC 208.

Background

In the proceeding, PK claims that the Salesian Society Inc (Salesians) is liable in respect of the conduct of a teacher, Brother Coffey, who PK alleges abused them at a school run by Salesians in Port Pirie, South Australia in 1971. As part of their case, PK alleges that Salesians knew or should have been aware that Brother Coffey had abused students at a separate school run by the Salesians in Victoria, known as ‘Rupertswood’.

PK sought the production of the following documents in the proceeding in support of their case:

an interview transcript dated 21 March 2005 between Monahan and Rowell (a law firm) and Father Alan McDonald (2005 Transcript); and
Monahan and Rowell’s file in respect of claims made by PO, a separate claimant, against Salesians arising from Brother Coffey’s conduct at Rupertswood (M&R File), together the Documents.

Salesians resisted the production on the basis that the Documents were subject to LPP, claiming that:

the 2005 Transcript had been prepared for the purpose of advising both Catholic Church Insurance (CCI) and its insured, Salesians, in relation to a claim against Salesians; and
the M&R File was prepared for the purpose of advising CCI and Salesians about a claim by PO.

The Court had to determine whether any privilege in the Documents existed, particularly in circumstances where CCI had produced a copy of the 2005 Transcript in a separate proceeding in the Supreme Court of Victoria, in response to a subpoena issued in that proceeding, in April 2022.

Court Findings

His Honour Justice B. Doyle found that the Documents were privileged and that Salesians had not waived that privilege. Accordingly, PK was not entitled to inspect the Documents.

In reaching those conclusions, the Court had to examine whether the privilege claimed was joint privilege or common interest privilege.

That was critical as it had consequences for how and whether any privilege had been waived: to waive joint privilege, both privilege holders must concur in the waiver, whereas common interest privilege can be waived by one party unilaterally.

Findings

The Court adopted an orthodox approach in respect of LPP, observing that LPP attaches to confidential communications between a lawyer and a client, which communication must be made for the dominant purpose of contemplated or pending litigation or for the giving legal advice; LPP is effectively an immunity from compulsory disclosure.

LPP can be lost (i.e. waived) where the privilege holder acts in a way that is ‘inconsistent with maintaining the confidence preserved by the privilege’.

The Court explained the difference between common interest privilege and joint privilege:

Common interest privilege: A privileged document can be disclosed to another party without waiving privilege over the document where the parties’ interests align (e.g. co-defendants to a proceeding, insurers / insureds and so on). If the other party then shares that document with another (unrelated) party, then there is a risk that the privilege in the document may be waived, including in respect of the original privilege holder. To put it another way: common interest privilege can be waived in respect of all parties by the actions of one of the privilege holders.
Joint privilege: Joint privilege arises where 2 or more parties jointly obtain legal services. A common example is where an insurer engages lawyers to defend a claim brought against an insured. Waiver of joint privilege cannot be done unilaterally as can common interest privilege – it requires all privilege holders to agree in or with the waiver.

The Court concluded that the 2005 Transcript was the subject of joint privilege because:

Monahan and Rowell were engaged by CCI to act on behalf of Salesians to provide legal advice in relation to the claims made against Salesians by PO;
Father McDonald was interviewed so that that legal advice could be given to CCI and Salesians about any liability risks arising from PO’s claims; and
CCI and Salesians were jointly interested in the issue of whether Salesians was liable in respect of the claims made by PO.

Accordingly, for there to be a waiver of LPP in respect of the 2005 Transcript, both CCI and Salesians were required to waive the privilege.

By not claiming LPP over the 2005 Transcript in resisting the production sought by the subpoena in the Victorian proceeding, CCI, for its part, had engaged in conduct that was inconsistent with the maintenance of LPP. The Court then had to consider whether Salesians had also waived the privilege.

In determining that question, the Court observed that:

although Salesians had received an email in April 2022 after CCI had produced the 2005 Transcript in the Victorian proceeding, which ‘provided the Salesians with the means of ascertaining that CCI had apparently produced documents over which a claim of joint privilege might have been made …’, the purpose of that email was to encourage Salesians to make further searches for documents within the scope of the subpoenas in the Victorian proceeding; and
a solicitor for Salesians was remotely accessing (but not appearing in) the hearings in the Victorian proceeding, during which hearings the 2005 Transcript was referred to.

The Court found that those circumstances did not amount to a conscious or deliberate failure by Salesians to make a claim for LPP over the 2005 Transcript in April 2022 when the transcript was produced by CCI in the Victorian proceeding. Accordingly, Salesians had not waived LPP in the 2005 Transcript, and the claim for LPP was upheld.

In relation to the M&R File, PK alleged that any LPP in the M&R File had been waived because Salesians’ knowledge about Brother Coffey’s conduct was in issue in the proceeding.

The Court held that just because an issue is raised in a proceeding, to which a privileged document may be relevant, does not bring about a waiver of privilege – waiver will occur where the holder of the privilege puts in issue their state of mind where ‘scrutiny of any advice that may have borne on that state of mind is necessarily invited as a matter of fairness’.

In this case, Salesians had not put in issue their state of mind in the relevant sense; the Court observed that the position would have been different had Salesians alleged that it had no knowledge of Brother Coffey’s conduct at all. However, that was not the case.

Key Takeaways

Care must be taken when dealing with privileged or otherwise sensitive materials. That care can be taken at various points and in various forms, including:

ensuring that clear and transparent retainer structures (e.g. costs agreements) are in place between lawyers and clients, including retainers that plainly identify and include all appropriate and necessary parties;
relationships between lawyers and clients are properly and consistently managed at both ends of the relationship (i.e. there are clear and consistent lines of communications such that all relevant parties know who is responsible for what). That could involve, for example, one person from the client being the conduit through which external communications with lawyers and third parties are managed in respect of sensitive materials;
ensuring that clear and accessible internal protocols are in place to assist with the identification of:
- different types of documents;
- how different types of documents are to be treated;
- who has access to different types of documents;
- how documents (and records) are to be managed and maintained;
- how permissions for access to documents are managed; and
- how sensitive documents are to be shared internally and externally;
ensuring that only those who require or need access to sensitive documents have that access; and
ensuring that any person dealing with sensitive documents has received proper training about the treatment and management of sensitive documents.

If you would like to discuss any aspect of this further please contact:

Alicia Hill
Principal
T: +61 3 9611 0180 | M: +61 484 313 865
E: ahill@sladen.com.au

Jake Cole
Senior Associate
T: +61 3 9611 0112 | M: + 61 413 557 157
E: jcole@sladen.com.au

Penny Qin
Law Clerk
E: pqin@sladen.com.au