Does the disclosure of documents to superintendents, independent certifiers or agents constitute the waiver of privilege?

23 August 2021

What happened?

In Built Environs WA Pty Ltd v Perth Airport Pty Ltd [No 5] during the informal exchange of discovery, Perth Airport Pty Ltd (Perth Airport) provided redacted documents to Built Environs WA Pty Ltd (Built). Built sought full disclosure of the documents on the basis that Perth Airport provided those documents to APP Corporation Pty Ltd (APP) who had been engaged as both an independent certifier and as an agent of Perth Airport (which engagement included obligations of confidentiality) during the project.

Built contended that when Perth Airport provided the documents to APP it constituted an imputed waiver of its legal professional privilege.

Perth Airport claimed that the documents were provided to APP in its capacity as its agent, not as independent certifier, and remained subject to legal professional privilege.

What did the Supreme Court of Western Australian say?

The parties did not disagree on the principles underlying legal professional privilege or imputed waiver. Rather, they disagreed on whether the disclosure of documents by Perth Airport to APP was made to APP in its capacity as an independent certifier, and not as Perth Airport’s agent, and therefore constituted a waiver of privilege.

The Court held that whether providing documents to a third party independent certifier, or the like, constituted an imputed waiver of legal professional privilege was to be guided by the functions of the third party. For example, if the documents were provided by a client to the third party in its role as superintendent, not as agent of the client, then those documents may no longer be privileged.

Ultimately, in the circumstances, the Court held that the documents in question were provided to APP whilst in its capacity as agent of Perth Airport and that the legal professional privilege over those documents was not waived. It was significant to the Court that, save for distinct certifier roles, APP remained a general agent of Perth Airport at all other times and in every other capacity and that as part of APP’s engagement it owed Perth Airport obligations of confidentiality.

Why is this case important?

When providing documents to third parties, such as superintendents, careful consideration must be given as to what capacity the recipient is receiving the documents, whether as an independent certifier or as an agent.

If the documents are provided to the third party whilst it is acting in its capacity as an independent certifier, the provider of those documents may have waived any legal professional privilege it has over those documents.

When a third party is engaged in multiple functions, including as an agent, it is important to clearly delineate between their functions and to ensure that when documents are provided to the third party, it is clear that the third party is receiving those documents as agent if the provider wishes to mainly legal professional privilege over those documents.

Instead of sending legal advices to superintendents, parties should consider asking their legal advisors to send submissions in support of that party’s position. The superintendent should then share those submissions with the other party and provide them with the opportunity to respond.  This ensures procedural fairness to the other party, without waiving privilege on any legal advice that underlies the party’s submissions.

This article was written by Leighton Moon, Partner, Con Koutsantony, Senior Associate and Fin Neaves, Associate.

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