Category Archives: s. 123

DPP (Cth) v Galloway (a pseudonym) & Ors [2014] VSCA 272 (30 October 2014)

http://www.austlii.edu.au/au/cases/vic/VSCA/2014/272.html

EVIDENCE – Criminal proceedings – Legal professional privilege – Evidence sought to be elicited by accused in cross-examination – Whether witness can refuse to answer on ground of legal professional privilege – Whether statutory provision abrogated common law right – Principle of legality – No indication that legislature intended to abrogate right – Witness not required to answer – Baker v Campbell [1983] HCA 39; (1983) 153 CLR 52, R v Barton [1973] 1 WLR 115, R v Ataou [1988] QB 798, R v Craig [1975] 1 NZLR 597 considered – Carter v Northmore Hale Davy & Leake (1995) 183 CLR 121 applied – Evidence Act 2008 ss 118, 119, 123, 131A.

STATUTORY INTERPRETATION – Abrogation of common law rights – Principle of legality – Criminal proceedings – Legal professional privilege – Evidence sought to be elicited by accused in cross-examination – Whether witness can refuse to answer on ground of legal professional privilege – Whether statutory provision abrogated common law right –– No indication that legislature intended to abrogate right – Witness not required to answer – Evidence Act 2008 ss 118, 119, 123, 131A.

WORDS AND PHRASES – ‘Adducing evidence’.

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

South Australia v Totani [2010] HCA 39 (11 November 2010)

http://www.austlii.edu.au/au/cases/cth/HCA/2010/39.html

Constitutional law (Cth) – Judicial power of Commonwealth – Constitution, Ch III – Vesting of federal jurisdiction in State courts – Serious and Organised Crime (Control) Act 2008 (SA) (“Act”) – Section 10(1) of Act permits Attorney-General to make declaration in respect of organisation, if satisfied members associate for purpose of organising, planning, facilitating, supporting or engaging in serious criminal activity, and organisation represents risk to public safety and order – Section 14(1) of Act provides Magistrates Court of South Australia (“Court”) must, on application by Commissioner of Police, make control order (contravention of which is a crime) imposing restrictions on freedom of association of defendant if satisfied defendant is member of declared organisation under s 10(1) – Section 35(1) of Act creates offence of associating with member of declared organisation or person the subject of control order on not less than six occasions during 12 month period – Whether making control order requires determination by Court of what defendant has done or may do, or any determination of criminal guilt – Effect of Attorney-General’s declaration on adjudicative process – Whether Court enlisted to implement legislative and executive policy – Whether task given to Court repugnant to, or incompatible with, institutional integrity.

Words and phrases – “control order”, “institutional integrity”, “judicial power”, “member of declared organisation”, “serious criminal activity”.

Heydon J (dissenting)
268 Reviewable for jurisdictional error? It is likely that by “unreviewable” the Full Court meant “unreviewable for jurisdictional error”. If so, those propositions are incorrect for the reasons explained in Kirk v Industrial Court (NSW)[393]. Section 41 does not remove the supervisory jurisdiction of the Supreme Court for jurisdictional error including breaches of the obligation to give procedural fairness. In this Court the respondents treated the Full Court’s error about judicial review as being without significance. That contrasts with the approach successfully urged on the Full Court, which saw the supposed lack of judicial review as fatal.
269 It is true that invoking judicial review is not made easy: the Attorney-General is not required to give reasons for the declaration (s 13(1)), criminal intelligence[394] supplied by the Commissioner to the Attorney-General cannot be made available to the claimant for review (s 13(2)), and public interest immunity may be claimable by the Attorney-General for other material. The absence of a duty on the Attorney-General to give reasons scarcely deprives the Magistrates Court of institutional integrity: in this respect s 13(1) of the impugned Act simply follows the common law[395]. The duty of the Attorney-General to preserve criminal intelligence may create difficulties in relation to a subpoena seeking material capable of being tendered in evidence to demonstrate a lack of jurisdiction in the Attorney-General. But the rule restricting access to criminal intelligence overlaps with similar common law rules of public interest immunity[396]. The general problem exists in many fields in relation to documents for which public interest immunity may be claimed without depriving the court of capacity to entertain administrative law challenges[397]. Section 13(2), like s 21(1) and (2)(a), considered below[398], is simply an illustration of the difficulty created by the existence of immunities or privileges from production. The form which these immunities or privileges take represents the result of legislative or judicial choices between conflicting interests or principles. This Court itself has gone so far as to strike the balance between the public interest in clients being able to have confidential consultations with lawyers and the interests of accused persons in seeking to raise a reasonable doubt about their guilt by holding that there is no common law right in an accused person to the production of, or access to, documents protected by legal professional privilege[399]. In some other jurisdictions, legislation came into force around that time which took a different course ( Evidence Act 1995 (Cth), s 123 and Evidence Act 1995 (NSW), s 123). If the choice this Court made is open to a court administering the common law, it is hard to see why the legislative choice reflected in ss 13(2) and 21 is a ground of constitutional invalidity.
270 In any event, a subpoena seeking production of documents which were before the Attorney-General when consideration was being given to the making of the declaration would not be set aside if it had a legitimate forensic purpose. While the party issuing the subpoena could not look at criminal intelligence, the court could examine the relevant material to see whether it was in fact criminal intelligence, for s 13(2) prohibits disclosure of it to “any person”, but not to a court[400].
271 The respondents submitted that seeking review for jurisdictional error would be a very difficult and unproductive enterprise. The enterprise is difficult, but not necessarily unproductive. It may be that strait is the gate, and narrow is the way, and few there be that find it. That is a common feature of attempts to obtain judicial review of administrative action. But a person bringing a claim that the Attorney-General has acted beyond the power conferred by s 10 can do so without hindrance from s 41. The Full Court’s excessive discounting of possible judicial review is revealed by its description of the Attorney-General’s declaration as a “certificate”. There is no statutory warrant for this dismissive expression. Its use reveals an erroneous assumption that the Magistrates Court proceedings are no more than a mere formality.

Singapore Airlines v Sydney Airports Corporation and Anor [2004] NSWSC 380 (7 May 2004)

[2004] NSWSC 380

EVIDENCE – discovery – where corporate counsel commissioned expert report into accident soon after accident occurred – claim for discovery of expert report – whether report privileged – s 119 Evidence Act 1995 – Pt 23 r 1(c) Supreme Court Rules – whether dominant purpose and existence of anticipated proceedings to be assessed at time report commissioned or when report brought into existence – where report had multiple purposes – whether there was a dominant purpose -where report commissioned by corporate counsel on behalf of company within the scope of employee’s authority – whether relevant dominant purpose is that of corporate counsel or company – distinction between employee’s purpose in commissioning report and company’s purpose – whether at time report was commissioned there was an anticipated legal proceeding – if privilege existed, whether subsequently lost – ss 122 and 123 Evidence Act 1995 – whether common law of waiver relevant – whether privilege lost by voluntary disclosure – distinction between disclosure of substance and effect relating to an expert report – whether disclosure of substance

Jovanovic v Law Society of Tasmania & Ors [2003] TASSC 11 (19 March 2003)

[2003] TASSC 11

Equity – General principles – Fiduciary obligations – Conflict of interest and duty – Solicitor acting for more than one party to a proceeding – Applicant’s right to challenge opponents representation.

Mullins v Rothschild [2001] TASSC 76, Kingston v State Fire Commission 140/1998, followed.

Legal Profession Act, 1993 (Tas)

Rules of Practice, 1994, r12, (Tas)

Aust Dig Equity [35]

Professions and Trades – Lawyers – Solicitor and client – Potential risk of use of privileged material – Privileged material of a company obtained when plaintiff a director

Farrow Mortgage Services Pty Ltd (in liq) v Mendell Properties Pty Ltd & Others [2000] VSCA 16; [1995] 1 VR 1, Rakusen v Ellis, Munday v Clarke [1912] 1 Ch 831, considered.

Evidence Act 2001  (Tas), ss118, 123, 124.

Aust Dig Professions and Trades [72]

Williams v The Queen [2000] FCA 1868 (20 December 2000)

 [2000] FCA 1868

PRACTICE & PROCEDURE – application to file and serve notice of appeal out of time – need for “special reasons” pursuant to O 52 r 15 of the Federal Court Rules – appellant not granted legal aid funding – delay not caused by mere inadvertence or procrastination -appellant always wished to appeal – good prospects of success – prejudice to the Crown less than in other cases.

CRIMINAL LAW – application at trial to discharge jury – application refused on basis that a direction to the jury would be sufficient – individual juror dismissed because he overheard a court officer discuss the appellant’s prior criminal record – no evidence that other jurors did not also overhear comments about the appellant’s prior criminal record – serious risk of prejudice to the appellant which a direction may not overcome – failure to discharge a miscarriage of justice.

EVIDENCE – application at trial by appellant for access to privileged documents under s 123 of the  Evidence Act 1995  (Cth) (“the Evidence Act”) – application refused – interrelation between the provisions of that Act and Legal Aid Act 1977 (ACT) – privileged documents were forensically relevant and interests of justice would generally require such documents to be produced to defence counsel – application at trial for adjournment to recall Crown witness after Crown case closed to prove the documents – application refused – appellant had every reasonable opportunity to defend himself – refusal of adjournment did not alter this – as Crown witness could not be recalled there was no use that appellant’s counsel would have made of the privileged documents – refusal to grant access to privileged documents not the crucial decision – no appellable error.

EVIDENCE – statement of a deceased Crown witness admitted at trial as exception to hearsay rule under s 65 of the Evidence Act – meaning of “shortly after” in s 65(2)(b) – s 65(2)(b) principally concerned with excluding concocted evidence – memory of the person making the statement not the key concern -meaning of “in circumstances that make it unlikely that it is a fabrication” in s 65(2)(c) – onerous requirements – need to consider not only whether the evidence appears to the judge to be reliable but all the circumstances as to the making of the statement – admission of such evidence was unfairly prejudicial under s 137 of the Evidence Act.

EVIDENCE – failure to give “accomplice” direction under s 165 of the Evidence Act – admission of evidence accompanied by failure to give such a direction amounts to a miscarriage of justice.

Evidence Act 1995  (Cth), ss 8(1), 65(2)(b), 65(2)(c), 123, 137, 164(3), 165

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.

Singapore Airlines v Sydney Airports Corporation and Anor [2004] NSWSC 380 (7 May 2004)

[2004] NSWSC 380

EVIDENCE – discovery – where corporate counsel commissioned expert report into accident soon after accident occurred – claim for discovery of expert report – whether report privileged – s 119  Evidence Act 1995  – Pt 23 r 1(c) Supreme Court Rules – whether dominant purpose and existence of anticipated proceedings to be assessed at time report commissioned or when report brought into existence – where report had multiple purposes – whether there was a dominant purpose -where report commissioned by corporate counsel on behalf of company within the scope of employee’s authority – whether relevant dominant purpose is that of corporate counsel or company – distinction between employee’s purpose in commissioning report and company’s purpose – whether at time report was commissioned there was an anticipated legal proceeding – if privilege existed, whether subsequently lost – ss 122 and 123  Evidence Act 1995  – whether common law of waiver relevant – whether privilege lost by voluntary disclosure – distinction between disclosure of substance and effect relating to an expert report – whether disclosure of substance

Esso Australia Resources v Commissioner of Taxation [1999] HCA 67; 201 CLR 49; 168 ALR 123; 74 ALJR 339 (21 December 1999)

[1999] HCA 67

Practice and procedure – Discovery – Legal professional privilege – Whether test for privilege is “dominant purpose” test or “sole purpose” test.

Evidence – Legal professional privilege – Client legal privilege – Test for – Whether “dominant purpose or sole purpose”.

Statutes – Influence on common law –  Evidence Act 1995  – Applicable in three Australian jurisdictions – Whether enactments affect development of common law – Significance of non-enactment in other jurisdictions – Relevance (if any) of Act to application to review past authority of High Court.

Words and phrases – “client legal privilege”.

Evidence Act 1995  (Cth), ss 118, 119.