http://www.austlii.edu.au/au/cases/nsw/NSWSC/2011/1483.html

CORPORATIONS – examination summons and orders for production – application to set aside examination summonses and orders for production – whether examination summonses and orders for production obtained for improper purpose – no basis for inferring examination summonses being used to conduct a dress rehearsal for cross-examination or to obtain a forensic advantage in contemplated proceeding that would not be available to it in those proceedings – examinations can be conducted to investigate existence and strength of potential causes of action – whether orders for production oppressive – whether orders for production should be set aside because they call for production of privileged documents – documents which might be subject to claim for privilege only small proportion of documents called for – application to set aside examination summonses and orders for production refuse

http://www.austlii.edu.au/au/cases/cth/FCA/2011/479.html

PRACTICE AND PROCEDURE – Legal professional privilege – application to access documents produced under subpoena over which a claim for privilege had been made – principles relevant to a claim for privilege – application of dominant purpose test – generalised evidence – insufficient specification of topics for a claim for privilege

PRACTICE AND PROCEDURE – Subpoena – application to set aside parts of subpoena – relevance of material sought – subpoena set aside

PRACTICE AND PROCEDURE – Discovery – application for further discovery – principles relevant to general discovery – Federal Court Rules O 15 r 2

PRACTICE AND PROCEDURE – Witness – application to take evidence by video link – requirement to make out a case for such an order to be made – discussion of difficulties associated with video link evidence

http://www.austlii.edu.au/au/cases/cth/HCA/2011/2.html

Courts and judges – Bias – Reasonable apprehension of bias by reason of pre-judgment – Where judge previously made finding on same issue in unrelated interlocutory proceeding – Knowledge and characteristics to be attributed to fair-minded lay observer – Whether fair-minded lay observer taken to understand rules of evidence and procedure – Whether later statements of judge in recusal application relevant to fair-minded lay observer’s assessment – Livesey v New South Wales Bar Association [1983] HCA 17; (1983) 151 CLR 288.

Words and phrases – “fair-minded lay observer”, “reasonable apprehension of bias”.

[2009] NSWCA 414

PROCEDURE – Courts and judges generally – Judges – Disqualification for interest or bias – Apprehended bias by way of prejudgment – Challenge to judge’s refusal to recuse himself – Where judge previously made credit and factual findings adverse to a party in an interlocutory judgment in separate proceedings – Whether findings in the interlocutory judgment expressed in such terms of finality that might give the impression to the reasonable fair-minded observer that the judge might not bring an impartial and unprejudiced mind to the issues in the proceedings – Material to which fair minded lay-observer may be assumed to have regard – Whether erroneous refusal of a judge of the Dust Diseases Tribunal to disqualify himself involves a decision in point of law so to ground an appeal under s 32(1) of the Dust Diseases Tribunal Act 1989 – Whether judge should have declined to disqualify himself on the ground of necessity

[2009] NSWSC 78

COMMON LAW
criminal contempt
threats by solicitors to seek personal orders against opposing solicitor for costs thrown away and retainer costs
costs threats mixed with settlement offers
loss of client legal privilege
whether reasonable grounds for concluding privileged communications made in furtherance of alleged contempt
propriety of threatening to seek costs against opposing solicitor before conclusion of proceedings
COMMON LAW
inherent jurisdiction to punish summarily for contempt out of court
summary procedure
whether defendant should be directed to disclose evidence in advance of hearing

[2000] NSWSC 19

Evidence – Legal professional privilege – Allegation of improper purpose – Degree of proof required. Practice – Interrogatories – As to state of mind of persons when they obtained access to information alleged to be privileged – Not “necessary”.

[2001] NSWSC 697

EVIDENCE — Legal professional privilege — whether lost — could evidence nonetheless be adduced under s122 of s125 of Evidence Act 1995 — Meaning of consent for purposes of s122(1) — Meaning of fraud and abuse of power for purpose of s125 — Production of documents under court order — Effect of subsequent discovery of letter by producing party referring to possible privilege when clients out of jurisdiction — dealt with in two contemporaneous judgments to be read together — Capacity to object to adducing of evidence when client out of jurisdiction — Continuance of retainer for that purpose — Duty of lawyer — Recourse to s133 to examine documents.

ACTS CITED:
Evidence Act s122, s133, s135

[2001] NSWSC 222

EVIDENCE – Hearsay – Interlocutory proceedings – Whether unfairly prejudicial

PRIVILEGE – Legal professional – Illegal or improper purpose – Whether abuse of process ‘fraud’ within s.125 of Evidence Act 1995.

[2002] NSWSC 1187

CONVEYANCING – sham transactions – whether loan and mortgage transactions bona fide – whether loan and mortgage transactions liable to be set aside
CONVEYANCING – whether the loan and mortgage transactions and discharge of mortgage and sale transactions constitute an alienation of property within the meaning of s37A of the Conveyancing Act 1919 – whether there was an intent to defraud creditors – meaning of “creditors” in s37A – whether bona fide purchaser for value and without notice
ESTOPPEL – whether a defendant could be precluded from asserting an entitlement to repayment of loan and rely on a mortgage in light of what was said in court
EQUITABLE LIEN OR CHARGE – whether the plaintiff held an equitable lien or entitled to a charge in equity to secure payment for work done on a house, when subsequent judgment otherwise frustrated by sham transactions, to prevent consequences of unconscionable conduct – equitable lien as an alternative to a constructive trust as a remedy for unconscionable conduct
CONSPIRACY TO INJURE – whether the loan and mortgage transactions constituted a conspiracy against the plaintiff – whether plaintiff suffered any damage.

Evidence Act s125

[2002] NSWSC 956

PROCEDURE – evidence – client legal privilege – “fraud” exception considered

[2004] NSWSC 945

EVIDENCE – admissibility – correspondence on settlement negotiations – prima facie inadmissible – whether admissible because of need to “control the conduct of a proceeding” or under exception for “deliberate abuse of power”

Evidence Act 1995, ss.11,131

[2005] NSWSC 741

CIVIL PROCEDURE – where representative proceedings brought for recovery of petrol licence fees – whether proceedings ought to continue as representative proceedings – whether proceedings ought to be dismissed, struck out or stayed – whether the proceedings statute barred by Recovery of Imposts Act 1963 (NSW) – whether no cause of action disclosed – whether proceedings “trafficking in litigation” – whether proceedings abuse of process – whether plaintiff entitled to order for discovery to ascertain details of members of represented class

[2006] NSWSC 543

PRACTICE & PROCEDURE – subpoenaed documents – claims to privilege – application of Evidence Act principles under UCP Rules – EVIDENCE – client legal privilege – liquidator’s examination proceedings – litigation funding agreement – participation by funder in conferences and correspondence with lawyers – whether privileged under s 118 or s 119 – whether privilege waived under s 122(2) or (4) – common interest privilege under s 122(5)(b) – loss of privilege through abuse of power under s 125 – whether grounds to attribute creditor’s improper purpose to liquidator

Evidence Act 1995 (NSW), ss 117, 118, 119, 122, 125

[2003] NSWCA 336

PRACTICE AND PROCEDURE – Alteration of reasons for judgment – APPREHENDED BIAS – Apprehended bias by reason of pre-judgment – Johnson v Johnson [2000] HCA 48; (2000) 201 CLR 488 test – Findings at an interlocutory stage expressed in terms of finality – Undesirability of judges supporting interlocutory evidentiary rulings by commenting on evidence. D

Evidence Act 1995, ss 118, 119, 120, 125

[1910] HCA 11

http://www.austlii.edu.au/au/cases/cth/HCA/1997/3.html

Evidence – Legal professional privilege – Search warrant – Copy of unprivileged documents made solely for the purpose of obtaining or giving legal advice or solely for use in legal proceedings – Evidence of illegal or improper purpose.

Crimes Act 1914 (Cth) s 10.

[1985] HCA 60

Practice – Discovery – Legal professional privilege – Communications between government and salaried legal advisers – Prima facie evidence of deliberate abuse of statutory powers.

[1995] FCA 1739

Evidence – admissibility – allegedly forged signature on deed of guarantee – evidence of various fraudulent acts in respect of other documents – whether relevant – whether evidence could affect the assessment of the probability that the guarantee is forged – whether tendency evidence – whether significant probative value – whether evidence should be excluded on discretionary grounds.

Evidence Act 1995  s 55, s 97, s 118, s 125, s 135, s 138

[1999] NSWSC 428

1 On 16 April 1999 the defendant’s solicitors served a subpoena on the Managing Partner of Corrs Chambers Westgarth (Corrs), Mr Marsden’s solicitors in relation to the criminal investigation, calling for the production of the following material:

“All documents (or copies thereof) provided or shown by Michael Lee, or any assistant or agent acting on his behalf, to Detective Superintendent Woodhouse in the period from 25 November 1998 to date (inclusive) in relation to any anticipated criminal proceedings concerning MR JOHN ROBERT MARSDEN”.

[2002] NSWCA 286

EVIDENCE – Privilege – Without prejudice communications attempting to negotiate a settlement of a dispute – Where such communications are alleged to evidence abuse of process – Whether admissible

PROCEDURE – Abuse of process – Proceedings against employees of deregistered company – Alleged purpose of obtaining money from holding company – Reasonable grounds for bringing proceedings against employees and against holding company – Whether proceedings against employees an abuse of process.

Evidence Act 1995 , ss.11, 125, 139.

[1999] NSWSC 826

Subpoena to Coroner

advice from Crown Solicitor

whether privileged

whether obtained for improper purpose

meaning of impripriety

s 125  Evidence Act 1995

[1999] NSWSC 259

Evidence Act 1995  s 125 – on suggestion of a “furtherance of an abuse of power”

[1997] FCA 1434

EVIDENCE ) discovery – claim of legal professional privilege – whether documents should be made available for inspection – whether documents can be said to relate to communications in furtherance (on the client’s part) of an attempt to evade the requirements of an undertaking to the Court – if documents may reasonably be held to be of that kind, inspection on discovery held to be appropriate – discussion of s 121(2) of the  Evidence Act 1995  .

[1997] FCA 1016

PRACTICE AND PROCEDURE – discovery and inspection – whether legal professional privilege abrogated by fraud – prima facie case of fraud established but not that legal advice was in furtherance of that fraud – differences between common law privilege and privilege protected by  Evidence Act 1995   considered.

Evidence Act (NSW); ss 117, 118, 119, 125

[1998] FCA 183

PRACTICE AND PROCEDURE – legal professional privilege – alleged improper purpose – whether alleged improper purpose may remove privilege where examination summons under Part 5.9 Corporations Law – scope of expression “in furtherance of” improper purpose – whether documents “in furtherance of” improper purpose – required degree of satisfaction of existence of improper purpose – prima facie case of improper purpose established – documents not protected by legal professional privilege.

Evidence Act 1995  (Cth), s 125(1)(a)

[1998] FCA 1229

EVIDENCE – client legal privilege – whether privilege lost by threatening or instituting proceedings said to be an abuse of the process of the Court – whether prima facie case of abuse of process made out.