The Privilege is All Yours—Until It Isn’t: When Affidavits Go Too Far

In what circumstances does referencing a privileged document in an affidavit amount to a waiver of legal professional privilege?

This issue was addressed in Zuleika Gold Limited (formerly known as Dampier Gold Ltd) v Vango Mining Ltd [No 2] [2025] WASC 320, a recent decision of the Supreme Court of Western Australia. 

Vango Mining Ltd (Vango Mining) applied for an order requiring Zuleika Gold Limited (formerly known as Dampier Gold Ltd) (Zuleika Gold) to produce a draft technical report that had been referred to, and its contents relied on, in an affidavit. 

Below we explain the circumstances in which the issue arose and discuss what insurers and their panel firms need to consider to avoid losing the protection of a claim for legal professional privilege over documents during litigation.

Background

Zuleika Gold applied for a further extension of time to file its expert evidence, which application was supported by an affidavit sworn by its solicitor addressing why more time was needed (supporting affidavit).  Part of that explanation included the plaintiff’s solicitor deposing to having received a draft technical report from an independent technical expert engaged on behalf of Zuleika Gold (draft report). However, the affidavit went further than simply acknowledging the existence of the draft report - it explained that the draft report was deficient, outlined why it could not be used by Zuleika Gold, and justified why it was necessary for Zuleika Gold to engage an alternative expert.[1]

As a solution to that evidentiary issue, and to explain the requested extension, the plaintiff’s solicitor deposed to being briefed to enquire for an alternative expert and that Zuleika Gold had been instructed to brief that alternative expert. The further time was therefore necessary to complete that alternative expert’s brief and receive their opinion. 

Despite the supporting affidavit confirming the existence of the draft report, in a bid to preserve Zuleika Gold’s rights over its expert evidence, the supporting affidavit contained an express reservation of its claim of legal professional privilege. 

The plaintiff’s solicitor stated in the supporting affidavit that:

“…None of the matters deposed to in this affidavit are intended to constitute a waiver of the Plaintiff's privilege, including, but not limited to, matters relating to communications between the Plaintiff and its legal representatives and communications between the Plaintiff, its legal representatives and third-party experts.”[2]

Unsurprisingly, Vango Mining’s solicitors wrote to the plaintiff’s solicitors requesting production of the draft report, as it said any legal professional privilege over the draft report had been waived by the references to it in the supporting affidavit. The defendants made their request for production of the draft report pursuant to O 26 r 8(2) of the Rules of the Supreme Court 1971 (WA) (RSC). 

For the simple reason that you are reading our article, you know Zuleika Gold did not agree and declined to provide Vango Mining with the draft report.  The defendant’s solicitors pressed Zuleika Gold for production of the draft report. 

When will a document be ordered for production

As Zuleika Gold’s solicitors had included the draft report in the supporting affidavit, this triggered the availability of O 26 r 8(2) RSC to Vango Mining as a means to request production of the draft report. 

O 26 r 8(2) RSC provides that;

“…Any party to a cause or matter shall be entitled at any time to serve a notice on any other party in whose pleadings or affidavits reference is made to any document requiring him to produce that document for inspection by the party giving the notice.”

The purpose of this provision is intended to put the requesting party in same position they would have been, had the deposing party set out in full the document referred to in the affidavit or pleading. 

Because the deposing party has chosen to refer to the document and its contents, usually because it supports or assists their case in some way, the requesting party is entitled to inspect the document. The deposing party can only object to production of that document if it can show “good cause” why it should not be produced.[3] 

But was privileged waived? 

A claim for legal professional privilege exists to protect the confidentiality of communications between the lawyer and client.  If there is inconsistency between the conduct of a client and the maintenance of that confidentiality, this may effect a waiver of privilege.[4]

This is an objective assessment, to made in the specific circumstances, even if subjectively there was no subjective intention to waive privilege by referring to a confidential document.[5]

If a party merely refers to a confidential document, this will not usually constitute a waiver of privilege.[6] But where a party, either directly or indirectly, puts the contents of the privileged document in issue or leaves it open to scrutiny, this will result in an inconsistency arising between assertion and maintenance of the privilege. When this occurs, the privilege will impliedly be waived. 

The draft report was plainly relevant to an issue in dispute in the proceedings and sought as expert opinion to support Zuleika Gold’s position, so that a claim for legal professional privilege would ordinarily apply.  However, in the supporting affidavit Zuleika Gold did more than simply refer to the draft report. The supporting affidavit went further and deposed to factual assertions about the contents of the draft report and drew conclusions based on its substance. 

By relying on the apparent deficiencies in the draft report, Zuleika Gold put in issue its contents, and opened the draft report up to scrutiny which was conduct inconsistent with maintaining the confidentiality which the privilege was intended to protect. 

The outcome

This conduct created an inconsistency for Zuleika Gold between its assertion and maintenance of its claim for legal professional privilege, which implied a waiver of privilege. As Zuleika Gold was not able to provide the court with any reason why an order for its production should not be made, it failed to make out its claim for legal professional privilege. 

His Honour Judge Palmer ultimately held that Zuleika Gold had waived its claim to legal professional privilege over the draft report and ordered that Zuleika Gold produce the draft report to Vango Mining.

Why this matters for insurers

Insurers are frequent litigants - whether directly in coverage disputes, or indirectly through the defence of insureds. 

Asserting (as relevant) and maintaining legal professional privilege over documents is critical in these contexts, as it protects a myriad of confidential information, including sensitive assessments, expert analysis, and communications with panel lawyers.

The Zuleika Gold v Vango Mining decision demonstrates that:

• a claim for legal professional privilege is not absolute and is not determined by subjective standards – it can be waived, even unintentionally, if a party’s conduct is inconsistent with maintaining the confidentiality of the privileged document.
• affidavits and pleadings are high-risk documents – care should be taken to ensure that documents are prepared with diligence and skill, as any statement that goes beyond acknowledging the existence of a privileged document and makes assertions about the contents of a confidential communication may trigger a waiver of privilege.

Practical guidance for insurers and their panel firms 

A claim for legal professional privilege is objectively assessed, and only as strong as the consistency with which the confidentiality of communication has been maintained. 

The Zuleika Gold v Vango Mining decision is a clear warning that even well-intentioned attempts to explain delays can unintentionally waive privilege.

To reduce the risk of waiving a claim for legal professional privilege, insurers should work closely with their panel lawyers and claims teams to arm themselves by: 

1. implementing strict protocols regarding confidential communications – including to avoid unnecessary references to privileged documents in affidavits, witness statements, pleadings or other communications. Parties need to think twice before referring to privileged communications to support their position.  For example, writing to another party and saying “I have received advice from a lawyer that we are not liable” (a statement which refers to a privileged communication and the content of the communication) could be enough to waive privilege over that advice.
2. providing training to claims managers and in-house counsel - stress the importance of reviewing affidavits and pleadings for any statements that may go beyond merely referring to a confidential document and put the contents of confidential communications in issue that could amount to an implied waiver of privilege.
3. be alert to documents referred to in affidavits or pleadings – recognise the power of O 26 r 8(2) RSC and be alert to any references to documents that could be inconsistent with asserting and maintaining privilege waiver and consider in advance how privilege claims will be defended if challenged.

What may seem like a small tactical disclosure to refer in a supporting affidavit for an extension of time to provide expert evidence to a draft report prepared by an expert, may result in significant strategic compromise and legal costs exposure.

[1] Zuleika Gold Limited (formerly known as Dampier Gold Ltd) v Vango Mining Ltd [No 2] [2025] WASC 320 at [11]

[2] Ibid at [13]

[3] Murray v Schreuder [2009] WASC 51 at [63]; Trans Petroleum (Australasia) Pty Ltd v United Petroleum (WA) Pty Ltd [2019] WASC 154 at [36]; Rafidain Bank v Agom Universal Sugar Trading Co Ltd [1987] 3 All ER 859, 862;Quilter v Heatly (1883) 23 Ch D 42, 51; Rafidain Bank.

[4]  Polland v Hedley [2023] WASCA 69 (Polland v Hedley) at [7].

[5] Polland v Hedley [2023] WASCA 69 (Polland v Hedley) at [75].

[6] Polland v Hedley [2023] WASCA 69 (Polland v Hedley) at [75].

This article was written by Isha Nagar, Law Graduate Insurance & Risk.