Key takeaway points
- Legal professional privilege can apply to communications with a prospective client before formal engagement, provided a relationship of trust and confidence exists or the client would reasonably expect to receive legal advice.
- A person who holds legal privilege cannot selectively disclose certain parts of legal advice they have received to advance an argument in or out of legal proceedings while withholding other parts of that advice is connected to the same subject matter.
- Legal advice is a powerful tool for shaping strategy, but it should not be casually shared to bolster the strength of a case in the mind of others. If you need to rely on having received particular advice, or anticipate needing to do so, it’s crucial to manage both how it is initially provided and its disclosure carefully.
- Keeping legal advice, or portions of legal advice you may need to rely on externally, distinct from other correspondence and/or legal advice is essential to preserving its confidentiality and avoiding losing privilege and having to disclose more of your advice than was intended or necessary.
Overview
In Bergman v Sportsbet Pty Ltd [2026] VSC 277, the Supreme Court of Victoria addressed a dispute concerning waiver of legal professional privilege. The decision provides a useful reminder of well-established principles about the care that needs to be taken when obtaining and using legal advice.
The Court ruled that while privilege attached to certain communications between the plaintiff and his solicitors, the plaintiff had waived privilege over a range of material, by reference to that advice and its content as part of the plaintiff’s response to the defence put on by Sportsbet Pty Ltd.
These communications referred to, and relied upon, the plaintiff’s knowledge concerning the illegality of Sportsbet’s live betting service (also known as ‘Fast Code Service’). The illegality allegedly first came to his attention by virtue of the legal advice he received on a particular date, and not before. Therefore, it was found that the plaintiff’s reply, which touched upon these matters, waived privilege over the advice he received on this issue and when.
This decision underscores the importance of carefully managing confidentiality and legal privilege and seeking advice on these issues at an early stage.
The Issue
The central issue in this case revolved around whether legal professional privilege applied to certain communications between the plaintiff, Jeremy Bergman, and his solicitors, Maurice Blackburn, and whether that privilege had been waived by referral to that advice and its content as part of his response to the Defence by Sportsbet Pty Ltd.
The Decision
This decision provides valuable insights into the scope and application of legal professional privilege, a critical concept for both legal practitioners and their clients, and the need to understand and be mindful of these issues from an early stage and when pleading your case or communicating with opposing parties.
Legal professional privilege protects confidential communications between a lawyer and their client, ensuring that sensitive information shared for the purpose of obtaining legal advice or preparing for litigation remains private. This protection fosters open and honest communication, which is essential for effective legal representation.
The plaintiff had initiated a group proceeding against Sportsbet, alleging that its live betting service (known as the Fast Code Service) constituted a prohibited interactive gambling service under the Interactive Gambling Act 2001 (Cth).
In his reply to Sportsbet’s defence, the plaintiff disclosed that he first became aware of the alleged illegality of the Fast Code Service during a discussion with his solicitor, Ms Elizabeth O’Shea, on 17 July 2024.
To test this assertion, Sportsbet sought discovery of all documents relating to communications between the plaintiff and Maurice Blackburn up to that date, arguing that the plaintiff’s reliance on this communication constituted a waiver of privilege over related documents.
The plaintiff conceded a limited waiver of privilege but maintained that it applied only to the specific communication with Ms O’Shea on 17 July 2024.
Sportsbet, however, contended that the waiver extended to all communications touching upon the plaintiff’s knowledge of the legality of the Fast Code Service.
In this case, the Court confirmed that privilege can extend to communications with a prospective client, even before a formal retainer is established, provided there is a reasonable expectation of receiving legal advice. This principle underscores the importance of establishing a relationship of trust and confidence early in the lawyer-client interaction.
However, the case also highlights the risks associated with waiving privilege. The plaintiff conceded that privilege had been waived for certain communications expressly referred to by them, but the Court ruled that the waiver extended beyond the specific communication initially disclosed. While this broader waiver meant that additional documents touching on the same subject matter could potentially be disclosed if relevant, the Court ultimately found that none of the additional documents reviewed—whether redacted or unredacted—were relevant to the subject matter of the waiver. The Court emphasised that privilege holders cannot selectively disclose privileged communications while withholding related information.
This case serves as a reminder to exercise caution when discussing legal matters with third parties or disclosing privileged communications.
Once privilege is waived, even unintentionally, it can lead to the disclosure of additional sensitive information. For lawyers, the decision underscores the importance of clearly documenting the basis for privilege claims and advising clients on the implications of waiving privilege.
Outcome
The Court ultimately ruled that the other documents produced by the plaintiff, including those initially redacted, did not contain material subject to the scope of the waiver.
After reviewing additional documents provided by the plaintiff, the Court confirmed that none of the content went to the subject matter of the waiver. As a result, whilst privilege had been waived the additional documents did not have to be produced on the grounds of relevance. The plaintiff was deemed to have complied with disclosure obligations.
This outcome reinforces the importance of careful privilege and confidentiality management. For clients, it highlights the need to understand how privilege operates and the potential consequences of waiving it. For legal practitioners, it underscores the necessity of providing clear advice on privilege issues and ensuring that privilege claims are supported by robust evidence.
