Category Archives: s. 125

In the matter of Petrolink Pty Ltd; Smith v Boné [2014] FCA 1024 (22 September 2014)

http://www.austlii.edu.au/au/cases/cth/FCA/2014/1024.html

PRACTICE AND PROCEDURE – interlocutory process – application for summary dismissal on the basis the interlocutory process is an abuse of process – whether the predominant purpose of the interlocutory process was to obtain a collateral advantage or was otherwise improper

PRACTICE AND PROCEDURE – words and phrases – “abuse of process” – relevant principles – application of ss 11(2), 131(1) and 131(2)(k) of the Evidence Act 1995

Wilson v Mitchell (No 2) [2014] VSC 332 (8 July 2014)

http://www.austlii.edu.au/au/cases/vic/VSC/2014/332.html

EVIDENCE – Appeal from Magistrates’ Court decision to release documents – Client legal privilege – Exceptions for documents produced in the furtherance of a fraud – Hearsay – Whether open to conclude that it would result in undue expense or delay to call author of hearsay evidence on bar table assertion that author lived in Malaysia – Admissions – Evidence Act 2008 ss, 64, 75, 118 and 125.

http://www.austlii.edu.au/au/cases/vic/VSC/2014/280.html

PRACTICE AND PROCEEDURE – Inspection of documents held on court file – application for confidentiality order – whether appellant would be seriously compromised or adversely affected if intervener not prevented from inspecting and/or copying the relevant documents – application for confidentiality order refused – Supreme Court (General Civil Procedure Rules) 2005, r 28.05.

Shea v TruEnergy Services Pty Ltd (No 4) [2013] FCA 936 (4 September 2013)

http://www.austlii.edu.au/au/cases/cth/FCA/2013/936.html

PRACTICE AND PROCEDURE – applicant challenged respondent’s claim of legal professional or client legal privilege in blanked out sections of a memorandum prepared by respondent’s former solicitors – applicant sought that Court inspect the blanked out sections to determine whether they contained legal advice properly the subject of privilege and, if so, whether such privilege had been lost pursuant to s 125 of the Evidence Act (1995) (Cth) (“the Evidence Act ”) – challenge to privilege made too late, where it was claimed by respondent since March 2013 – no cogent basis on which to allege privilege had been improperly claimed or was lost pursuant to s 125 of the Evidence Act

Marshall v Prescott [2013] NSWCA 152 (6 June 2013)

http://www.austlii.edu.au/au/cases/nsw/NSWCA/2013/152.html

PROCEDURE – costs – leave to appeal sought in respect of costs orders made on an issue-by-issue basis – applicant seeks to challenge the judge’s conclusions on certain of the issues but not the ultimate decision – whether an appeal court should canvass intermediate conclusions merely for the sake of an appeal on costs – leave refused – PROCEDURE – subpoena to non-party – legal professional privilege at common law – common interest privilege – person maintaining claim by subrogation to proceeds of pending litigation – communication to that person of confidential legal advice given to the party in whose shoes the person seeks to stand – whether common interest of the litigant and the person claiming by subrogation exists so as to preclude a finding of waiver of privilege – PROCEDURE – subpoena to non-party – legal professional privilege at common law – where the non-party claiming by subrogation has agreed to fund proceedings brought by the litigant – whether the litigation funding agreement is protected by legal professional privilege

Matthews v SPI Electricity Pty Ltd & Anor (No 2) [2013] VSC 86 (8 March 2013)

http://www.austlii.edu.au/au/cases/vic/VSC/2013/86.html

PRACTICE AND PROCEDURE – COSTS – Application for an order that plaintiff’s solicitors pay first defendant’s costs thrown away by reason of plaintiff raising and abandoning claim– application made under s 29 of the Civil Procedure Act 2010 and Supreme Court (Civil Procedure) Rules Ch 1 r 63.23 and the inherent jurisdiction – whether no proper basis for claim – whether plaintiff breached overarching obligations – whether no or substantially no prospects of success and unreasonable – no ulterior purpose – White Industries (Qld) Pty Ltd v Flower & Hart [1998] FCA 806- no serious dereliction of duty or serious misconduct – plaintiff’s solicitors duty to advance its clients interests by all proper means.

EVIDENCE – loss of client legal privilege – s 125 Evidence Act 2010 (Vic) – whether communications made in furtherance of a deliberate abuse of power – authority to enter land – whether reasonable for plaintiff to request evidence of permission for first defendant’s to enter land.

Matthews v SPI Electricity Pty Ltd & Anor (No 3) [2013] VSC 116 (19 March 2013)

http://www.austlii.edu.au/au/cases/vic/VSC/2013/116.html

PRACTICE AND PROCEDURE – application made under s 29 of the Civil Procedure Act 2010 and Supreme Court (Civil Procedure) Rules 2005 Ch 1 r 34.01 – production by first defendant (SPI) of consent or permission of landowners to enter land on which Pentadeen Spur constructed to carry out tests for the purpose of its defence to the plaintiff’s claims – whether SPI in breach of overarching obligation of cooperation (s 20 of the Civil Procedure Act 2010) – whether orders facilitate the just, efficient, timely and cost effective resolution of the real issues in dispute (s 7 of Civil Procedure Act 2010) – whether orders conducive to the effective, complete, prompt and economical determination of the proceeding (r 34.01) – orders for production of consent made.

EVIDENCE – loss of client legal privilege – s 125 Evidence Act 2010 (Vic) – whether communications made in furtherance of a deliberate abuse of power – authority to enter land – whether orders should be made for SPI to produce evidence of consent or permission of landowners to enter land for purpose of plaintiff’s reliance on s 125.

Bare v Small & Ors [2011] VSC 639 (19 December 2011)

http://www.austlii.edu.au/au/cases/vic/VSC/2011/639.html

EVIDENCE ― Client legal privilege ― Legal advice privilege ― Loss of privilege where communication “was made or prepared in furtherance of a deliberate abuse of power” ― Advice sought from counsel by statutory decision maker ― Subsequent decision alleged to constitute an abuse of power ― Subpoena to produce legal advice ― Whether privilege lost ― “Deliberate abuse of power” requires knowledge of unlawful end ― No loss of privilege ― Evidence Act (No 47 of 2008), s 125(1)(b).

In the matter of Trio Capital Limited (In Liquidation) [2011] NSWSC 1483 (14 November 2011)

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

Holihan & Ors v Amcor Limited & Ors [2011] VSCA 225 (5 August 2011)

http://www.austlii.edu.au/au/cases/vic/VSCA/2011/225.html

APPEAL – Procedure – Leave to appeal – Interlocutory order – Whether judge erred in applying wrong standard of proof in relation to fraud/crime exception to client legal privilege – Whether judge had jurisdiction to hear and determine appeal from associate justice – Granting leave would discourage trial judges from referring out questions in appropriate cases – Fragmentation of the trial was undesirable – Evidence Act 2008 , s 125 – Application refus

Amcor Limited & Ors v Barnes & Ors [2011] VSC 341 (26 July 2011)

http://www.austlii.edu.au/au/cases/vic/VSC/2011/341.html

EVIDENCE – Client legal privilege – Loss of privilege by the commission of a fraud, an offence or an act that renders a person liable to a civil penalty – Meaning of ‘fraud’ – Whether the client must be knowingly involved in the fraud, offence or act – Meaning of ‘in furtherance of the commission of a fraud … offence … or act’ – Whether the fraud, offence or act must be consummated – Whether the commission of the fraud, offence or act must be a fact in issue – Evidence Act 2008 , ss 125, 131A.

PRACTICE AND PROCEDURE – Inspection by Judge of disputed documents – Evidence Act 2008 , s 133.

PRACTICE AND PROCEDURE – Jurisdiction of a Judge to hear an appeal from an order of an Associate Judge on a question referred to the Associate Judge by another Judge during the trial of a proceeding – Supreme Court (General Civil Procedure) Rules 2005 (Vic), rr 77.02(1), 77.07(1).

Blackrock Asset Management Australia Services Limited v Waked (No 2) [2011] FCA 479 (5 May 2011)

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

British American Tobacco Australia Services Limited v Laurie [2011] HCA 2 (9 February 2011)

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”.

Carbotech-Australia Pty Ltd v Yates [2008] NSWSC 1151 (10 October 2008)

http://www.austlii.edu.au/au/cases/nsw/NSWSC/2008/1151.html

PROCEDURE – SUBPOENAS – plaintiffs seeking access to documents produced under subpoena by former solicitors of defendants – whether question of access to subpoenaed material determined under common law, (NSW) Evidence Act 1995, or Uniform Civil Procedure Rules, r 1.9 – CLIENT LEGAL PRIVILEGE – whether documents subject to client legal privilege – where substantial volume of documents produced to Court with no evidence of authors’ purpose(s) – inspection by Court – necessity for proper evidence of purpose – whether client legal privilege lost due to communications being in furtherance of criminal or fraudulent act – whether person providing advice must know criminal or fraudulent purpose – meaning of “furtherance” of a criminal or fraudulent act – WAIVER – where some documents over which privilege is claimed were exhibited to affidavits read in proceedings – whether the defendants have waived privilege over those documents

LEGISLATION CITED:
(NSW) Evidence Act 1995, ss 118, 125
(NSW) Uniform Civil Procedure Rules, r 1.9, Pt 33

British American Tobacco Australia Services Ltd v Laurie & Ors [2009] NSWCA 414 (17 December 2009)

[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

Nuclear Utility Technology & Environmental Corporation Inc v Australian Broadcasting Corporation; on the application of Bayliss v Australian Broadcasting Corporation [2009] NSWSC 78 (26 February 2009)

[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

Kang v Kwan and 2 Ors [2001] NSWSC 698 (16 August 2001)

[2001] NSWSC 698

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.

Evidence Act Part 3.10, s118, s119, s122, s125, s133

DECISION:
s125 of Evidence Act applicable.

Kang v Kwan and 2 Ors [2001] NSWSC 697 (16 August 2001)

[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

Kang v Kwan and 2 Ors [2002] NSWSC 1187 (12 December 2002)

[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

Trendlen v Mobil Oil [2005] NSWSC 741 (27 July 2005)

[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

In the matter of Bauhaus Pyrmont Pty Ltd (in liq) [2006] NSWSC 543 (6 June 2006)

[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

Kwan v Kang & 2 Ors [2003] NSWCA 336 (9 December 2003)

[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

Pyneboard Pty Ltd v Trade Practices Commission [1983] HCA 9; (1983) 152 CLR 328 (18 March 1983)

http://www.austlii.edu.au/au/cases/cth/HCA/1983/9.html

Trade Practices – Trade Practices Commission – Powers – Notice requiring supply of information and production of documents – Failure to comply on ground that information or documents might expose person receiving notice to civil penalty – Whether privilege against exposure to penalty applicable to non-judicial proceedings – Trade Practices Act 1974 (Cth), ss. 45, 76, 155.

Police Service Board v Morris [1985] HCA 9; (1985) 156 CLR 397 (27 February 1985)

[1985] HCA 9

Police – Disciplinary proceedings – Failure to obey lawful order – Refusal to answer questions of superior officer – Privilege against self-incrimination or exposure to penalty – Whether applicable to non-criminal disciplinary proceedings – Whether abrogated by statute – Police Regulation Act 1958 (Vict.), s. 88(1) – Police Regulations 1957 (Vict.), reg. 95A(7).

Commissioner Australian Federal Police v Propend Finance Pty Ltd [1997] HCA 3; (1997) 188 CLR 501; (1997) 141 ALR 545; (1997) 71 ALJR 327 (7 February 1997)

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.

Zaknic Pty Limited v Svelte Corporation Pty Limited v Crypta Fuels Pty Limited [1995] FCA 1739 (12 December 1995)

[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

Sugden v Sugden [2007] NSWCA 312 (1 November 2007)

[2007] NSWCA 312

PROCEDURE – Production of documents on subpoena – Appellant (father of respondent) gives instructions on behalf of respondent to respondent’s solicitor –Whether solicitor’s file notes of those instructions are “privileged documents” – Where investigator retained by solicitor for respondent takes draft statement from appellant – Where draft statement later settled in conference by counsel for respondent – Whether draft statement is a “privileged document” – Where appellant on own account instructs solicitor in relation to police inquiries – Whether file notes of those instructions are “privileged documents”.
EVIDENCE – Client legal privilege – Whether file notes and settled draft statement record confidential communications – Whether in any event file notes and settled draft statement are confidential documents.
EVIDENCE – Loss of client legal privilege – Related communications and documents – “Proper understanding” – Question, whether one document, is “reasonably necessary to enable a proper understanding” of another document, to be answered taking into account circumstances in which and purposes for which that “proper understanding” is required and other information available.

Marsden v Amalgamated Television Services Pty Limited [1999] NSWSC 428 (7 May 1999)

[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”.

Van Der Lee & Ors v New South Wales & Ors [2002] NSWCA 286 (30 August 2002)

[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.

In the matter of Strikers Management Pty Ltd; Australian Securities Commission v Peter Dimitri [1997] FCA 1434 (18 November 1997)

[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  .

Rodney Trevor Zemanek v Commonwealth Bank of Australia [1997] FCA 1016 (2 October 1997)

[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

In the matter of Moage Ltd (in liq); John Sheahan v Robert Pitterino & Ors [1998] FCA 183 (9 March 1998)

[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)

Australian Securities & Investments Commission v Rich [2006] NSWSC 643 (27 June 2006)

[2006] NSWSC 643

EVIDENCE – cross-examination on documents not tendered – third party documents and prior representations of the witness – transcripts of examinations including transcripts that could not be tendered in penalty proceedings – discretionary considerations

Evidence Act 1995  (NSW), ss 9, 26, 43, 44, 192