Category Archives: s. 126B

R v Kelsall (No 3) [2015] NSWSC 253 (4 March 2015)

CRIMINAL LAW – evidence – s 126B Evidence Act – admissibility of statements made to two medical practitioners – where statements amount to protected confidences – where evidence is highly probative – limitations of doctor/patient confidentiality where statements concern harm to others – public interest concerns mitigated – evidence admissible

Herrick v Knowles [2014] NSWSC 1223 (5 September 2014)

EVIDENCE LAW – document sought under subpoena – protected confidence claimed over document – social worker and client relationship – court discretion to prohibit document access – question of harm suffered if access granted – probative value of document – public interest in the confidentiality of protected confidences

Liu v The Age Company Limited [2012] NSWSC 12 (1 February 2012)

CONSTITUTIONAL LAW – implied freedom of communication on matters of government and politics – power to order preliminary discovery under rule 5.2 of the Uniform Civil Procedure Rules 2005 – whether rule 5.2 authorises orders in respect of the identity of a confidential source who has provided information to a journalist for use in a publication about government or political matters – whether the newspaper rule is of absolute effect in protecting the journalist against such an order in the case of communication on matters of government and politics

PRACTICE AND PROCEDURE – preliminary discovery – publication amounting to communication on matters of government and politics – alleged defamation of plaintiff – plaintiff seeking identification of journalists’ confidential sources – where journalists alleged to have been provided with forged documents – whether discretion enlivened – discretionary factors

Sundararajah v Teachers Federation Health Ltd (No. 2) [2010] NSWSC 259 (30 April 2010)

EVIDENCE – documentary evidence – complaints to health insurer about health service provider – whether complaints confidential – whether insurer entitled to redact documents to protect confidentiality of complainants – whether protected confidence – whether health care provider acting in professional capacity – whether admissibility of redacted documents unfairly prejudicial to health care provider.

NRMA v John Fairfax [2002] NSWSC 563 (26 June 2002)

[2002] NSWSC 563

Practice. Application for preliminary discovery against newspaper publisher and journalists who received information concerning allegedly confidential discussions in board room of the plaintiff in order to establish the name of the person disclosing the information. Orders made for examination and production of documents. Constitutional law. Whether Part 3 r 1 of the Supreme Court Rules is compatible with the implied constitutional freedom of discussion of political and governmental matters. The newspaper articles which were said to be the relevant discussions were not a discussion of political or government matters and thus the question does not arise. Evidence. Discretion under s 126B of the Evidence Act. Held that the section applies to a journalist but in the circumstances of the case the interests of justice require the disclosure of the journalists’ sources.

Director-General, Dept of Community Services v D [2006] NSWSC 827 (17 August 2006)

[2006] NSWSC 827

FAMILY LAW – Adoption – EVIDENCE – Privilege – Protected Confidences – where birth mother has made confidential statements to medical practitioner whose report she relies on – where report relies on those confidences – whether access should be refused – where issue is welfare of a child – where confider has forensically deployed the confidences via medical report – where disclosure necessary to scrutinise expert opinion which relies on them – Client legal privilege and litigation privilege – where some communications for purpose not of litigation but securing appropriate care – Waiver – where report refers generically to file but privileged entries not reasonably necessary to understand report – where some privileged communications are instructions to expert for report which has been served – INTERROGATORIES – where parties other than birth mother contend that child is settled and thriving with proposed adoptive parents and there is no contrary evidence – where applicant birth mother unaware of respondent proposed adoptive parents’ and child’s circumstances – where interrogatories seek to identify witnesses from whom documents might be subpoenaed bearing on circumstances of proposed adoptive parents and child – whether parenting capacity of proposed adoptive parents is a real issue – whether proposed interrogatories relate to a real issue in the case – whether fishing – whether necessary.

Evidence Act 1995 (NSW), ss 118, 119, 122, 126, 126A, 126B, 126E

Sankey v Whitlam [1978] HCA 43; (1978) 142 CLR 1 (9 November 1978)

[1978] HCA 43

Criminal Law – Conspiracy to effect a purpose that is unlawful under a law of the Commonwealth – Proposed borrowing in contravention of Financial Agreement 1927 – The Constitution (63 & 64 Vict. c. 12), ss. 57, 61, 105A, 128 – Constitution Alteration (State Debts) 1928 – Financial Agreement 1927, cll. 3, 4, 6 – Financial Agreement Act 1928 (Cth), s. 2 – Financial Agreement Validation Act 1929 (Cth) – Financial Agreement Act 1944 (Cth), s. 3 – Crimes Act 1914 (Cth), s. 86.

Evidence – Subpoena duces tecum – Claim of privilege by Crown and individual litigant – Scope of privilege – Cabinet documents and similar papers – Prior publication by tabling in Parliament and otherwise – Disclosure of proceedings of Parliament without leave – Private prosecution – Difficulty of proving charges without production of documents – Form of affidavits claiming privilege – Balance of competing interests – Justices Act, 1902 (N.S.W.), s. 26.

Declaration – Jurisdiction in relation to criminal proceedings – Commital proceedings – Claim for declaration by informant – Exercise of discretion – Supreme Court Act, 1970 (N.S.W.), s. 75 – High Court Rules, O. 26, r. 19.

R v P [2001] NSWCA 473 (13 December 2001)

[2001] NSWCA 473

EVIDENCE – Privilege – Legal professional privilege or client legal privilege – Exceptions – Whether displaced in protective proceedings – Opinion evidence – Whether admissible if based on privileged communications – Protected reports

COURTS AND JUDGES – Appeal – Objection to evidence not taken below – Whether can be taken on appeal


PROFESSIONS – Lawyers – Duties to client – Privilege – Duty of confidence – Conflict of interests – Lawyer believes client incapable of giving rational instructions – Whether lawyer can take protective proceedings against client – Whether lawyer can use or disclose confidential information in such proceedings. D.

Evidence Act 1995  ss.4, 9, 119-122, 126A, 126B, 132, 134, 135

Dimkovski v Ken’s Painting and Decorating Services Pty Limited and 2 ors [2002] NSWSC 50 (12 February 2002)

[2002] NSWSC 50

client legal privilege
letter from client to insurance broker
not seeking legal advice
Evidence Act 1995 , ss 117, 118, 119
“confidential document”
“protected document”
Evidence Act 1995 , ss 117, 126A
discretion to exclude
whether “probative”
opening up of lines of enquiry
Evidence Act s 135, 192, Dictionary (probative)

Evidence Act 1995 , ss 117, 118, 119, 126A, 126B, 135, 192, Dictionary (probative)

Kadian v Richards [2004] NSWSC 382 (22 June 2004)

[2004] NSWSC 382

CONFIDENTIAL INFORMATION – doctor-patient confidentiality – sources of obligation of confidentiality – content of obligation – whether obligation waived by patient commencing litigation which puts his or her health in issue – whether proceedings should be stayed unless plaintiff consents to interview taking place between defendant’s lawyers and plaintiff’s present treating doctors – PROFESSIONS AND TRADES – medical and related professions – doctor-patient confidentiality – sources of obligation of confidentiality – content of obligation – whether obligation waived by patient commencing litigation which puts his or her health in issue – whether proceedings should be stayed unless plaintiff consents to interview taking place between defendant’s lawyers and plaintiff’s present treating doctors – PROCEDURE – miscellaneous procedural matters – stay of proceedings – when appropriate – PROCEDURE – Supreme Court procedure – claim for declaration that right had been waived – need for person affected by that right to be party to the litigation – EVIDENCE – proof of a negative proposition – onus of proof

Urquhart v Lanham [2003] NSWSC 109 (25 February 2003)

[2003] NSWSC 109

PROCEDURE – Supreme Court procedure – subpoenas and notices to produce – permitting inspection of confidential documents – effect of section 126B  Evidence Act 1995  on exercise of discretion to inspect – EVIDENCE – facts excluded from proof – legal professional privilege – whether applies to a Will – SUCCESSION – WILLS PROBATE AND ADMINISTRATION – subpoena or notice to produce seeking production of Will of living person – effect of section 126B  Evidence Act 1995  on application to inspect Will