When Power Goes Wrong · Evidence & Proof Ledger · Part 30

What can be withheld as privileged—and what is merely confidential?

Privilege is a legal right to resist disclosure or use of specified communications or materials. Confidentiality alone is different. Legal-advice privilege, litigation privilege and settlement privilege each have defined statutory requirements.

“Confidential” is not the same legal concept as “privileged”. A document can be commercially or administratively sensitive without attracting legal professional privilege.

Evidence Act ss 54–57 deal with communications with legal advisers, preparatory materials for proceedings, and settlement/mediation communications. Section 65 deals with waiver. High Court Rules allow a party to identify privilege claims in discovery and permit the opposing party to challenge those claims.

Privilege attaches to purpose and relationship, not merely to copying a lawyer.Whether a document is privileged depends on the statutory test. Simply marking an email “privileged” or copying legal counsel does not conclusively determine the issue.

Legal-advice privilegeConfidential communications made in the course and for the purpose of obtaining/giving professional legal services.

Litigation privilegeSpecified preparatory material created for proceedings in the statutory circumstances.

Settlement privilegeSpecified settlement/mediation communications.

ChallengeA Judge may inspect material when determining a challenged privilege claim under the High Court Rules.

The proof ledger should list privileged material separately rather than pretending privileged evidence does not exist.

Evidence statuteEvidence Act 2006, ss 53–67.

Discovery rulesHigh Court Rules 2016, Part 8.

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