PRACTICE AND PROCEDURE – notice to produce – expert’s reports – draft expert reports and communications between the expert and the party retaining them and their solicitors – application to set aside notice to produce
EVIDENCE – client legal privilege – privileged material – whether there is a waiver of client legal privilege for draft expert reports and communications between the expert and the party retaining the expert by the party seeking to rely on the final expert report in the proceedings
PROCEDURE – discovery and interrogatories – discovery and inspection of documents – Practice Note SC Eq 11 – disclosure after evidence filed by plaintiffs – whether relevant categories of documents ought to be disclosed – whether disclosure of relevant categories of documents is necessary for resolution of real issues in dispute in proceedings.
PROCEDURE – subpoenas – application for subpoena to be set aside – where subpoena is for reports prepared by expert in interstate proceedings involving relevant defendants – whether production of reports is sufficiently relevant to matters in issue in proceedings.
EVIDENCE – legal professional privilege – where present plaintiffs seeking access to third party reports under subpoena to produce – where reports were filed and served on opposing parties in interstate proceedings under court order – whether question of access to be determined by statute or common law – whether service of reports in accordance with court order amounted to waiver of legal professional privilege – whether plaintiffs in interstate proceedings had an express or implied obligation to preserve confidentiality of relevant reports.
PROCEDURE – application for Registrar to request production of court files in interstate courts under Uniform Civil Procedure Rules 2005 (NSW) r 33.13 – whether direction for request should be made subject to relevant defendants having right of first access to make any potential claim for confidentiality or privilege.
PRACTICE AND PROCEDURE — Application that an affidavit and exhibits be taken off the court file — Supreme Court (General Civil Procedure) Rules 2005, r 1.14(2) and r 27.07(b) — Affidavit and exhibits tending to incriminate third defendant or expose him to a civil penalty — Whether affidavit and exhibits filed by plaintiffs which reveal documents that may tend to incriminate a defendant or expose him to a penalty is scandalous.
PRACTICE AND PROCEDURE — Discovery — Privilege against self-incrimination or self-exposure to a penalty —Proceeding against director of first plaintiff for breach of fiduciary duties and directors duties under ss 180, 181 and 182 of the Corporations Act 2001 (Cth) —First plaintiff’s business ‘phoenixed’ into the first defendant — facts pleaded may also constitute offences —Documents obtained from former employee or consultant to first plaintiff — plaintiffs seek discovery and inspection by individual who is first plaintiff’s only director and secretary — Some documents already in possession of first plaintiff — whether individual excused from giving discovery or inspection on ground that giving discovery or inspection would involve individual incriminating himself —No additional jeopardy by reason of an order for inspection of documents already in possession of plaintiffs – Other discovered documents not in possession of plaintiffs are subject to the privileges.
PRIVILEGE – admissibility of evidence – patent attorney/client privilege – relationship to legal advice privilege – scope of advice privilege – waiver – admissibility of evidence of communications between patent attorney and client – where discovery and inspection given of documents recording such communications – where no claim for patent attorney/client privilege made in respect of such documents – whether such documents privileged from production – whether production of such documents voluntary – whether other evidence of communications between patent attorney and client privileged and therefore inadmissible by reason of s 200 of the Patents Act 1990 (Cth) and s 118 of the Evidence Act 1995 (Cth) – whether such privilege waived by voluntary disclosure of related documents – scope of waiver
PATENTS – patent attorney/client privilege – relationship to legal advice privilege – scope of advice privilege
PRACTICE AND PROCEDURE — Subpoenas to independent experts — Inspection of documents — Client legal privilege — Express waiver of privilege in expert reports by delivery — Documentary communications between solicitor and independent experts — Draft expert reports submitted to plaintiff’s solicitors for the provision of professional legal services relating to the current group proceeding — Whether waiver of privilege in consequence of delivery of expert’s final reports — Inconsistency — Whether documents influence or underpin expert reports — ss 119, 122 and 131A of the Evidence Act 2008 (Vic) — Whether resultant waiver of privilege — No waiver — Maintenance of the privilege not inconsistent with deployment of the final report in the proceeding.
PRACTICE AND PROCEDURE – Call for production of documents in the course of crossexamination at trial – Whether documents within the call – Whether documents produced the subject of client legal privilege – Dominant purpose test – Whether leave to crossexamine deponent should be granted – Leave granted on limited basis – rule 40.04 of the Supreme Court (General Civil Procedure) Rules 2005 – Evidence Act 2008 (Vic) ss 45, 118, 119 and 131A.
ADMINISTRATIVE LAW – Judicial review – Occupational Health and Safety prosecution – Committal proceedings – Witness summons – Summons to produce documents – Legitimate forensic purpose – Legal professional privilege – Certiorari – Whether decision in course of committal proceeding amenable to certiorari – Occupational Health and Safety Act 2004, ss 21 and 132.
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
PRACTICE AND PROCEDURE – Subpoena – Notice to Produce – objections to inspection of parts of funding agreements redacted – client legal privilege – whether reveals legal strategy expressly or by implication – no privilege in redacted parts of funding agreements.
PRACTICE AND PROCEDURE – substituted service – plaintiffs unable to locate third defendant – third defendant identified by pseudonym as informant for article published by first and second defendants – promise not to reveal third defendant’s identity – whether journalists’ privilege extends to informant – whether order for substituted service would result in disclosure of third defendant’s identity – whether order should be made
PROCEDURE – claim of privilege over documents disclosed – whether documents such as to attract privilege – whether bank waived privilege – legitimate forensic purpose – whether scope of subpoena to produce too broad
APPEAL – interlocutory decision of Associate Judge – practice and procedure – defamation – production of evidence of settlement negotiations – scope of statutory exclusion in s 131(1) of the Evidence Act – whether restricted to excluding admissions – scope of s 131(5)(b) of the Evidence Act – whether negotiations concern criminal proceedings – whether negotiations affect the right of a person – scope of s 131(2)(i) of the Evidence Act .
CRIMINAL LAW – Charge of refusing to take an oath or make an affirmation contrary to s 36(3) of the Major Crime (Investigative Powers) Act 2004 – Collateral challenge to the validity of the Act and a coercive powers order and a custody order made under the Act, pursuant to a pre-trial application under s 199(1)(c) of the Criminal Procedure Act 2009 to quash the charge.
PRACTICE AND PROCEDURE – Evidence – Subpoena – Legitimate forensic purpose – Public interest immunity – Claim that production of documents would prejudice the investigation or prosecution of an offence – Claim upheld – Evidence Act 2008 ss 130, 131A.
PRACTICE AND PROCEDURE – claim of “without prejudice” privilege by plaintiff in relation to two distinct groups of documents – substantive action for defamation – UCPR r 21.5 – Evidence Act 1995 ss 131 and 131A – defendants dispute claim of privilege – reference to an attempt to negotiate the settlement of a criminal proceeding or an anticipated criminal proceeding – claim of public interest immunity – order to produce
ADMINISTRATIVE LAW – Hearing rule of natural justice – Legal professional privilege – Whether a coroner is authorised to provide material to an interested party on condition that a copy of any report prepared for that party on that material be provided to the coroner – Such a condition undermines the hearing rule of natural justice and legal professional privilege and is invalid.
CORONERS COURT – Power of a coroner to impose conditions on the provision of material to an interested party – Whether a tissue sample taken from a body remains part of the body – Whether a coroner has control over the tissue sample – Whether legal professional privilege under the common law or under the Evidence Act 2008 applies – Coroners Act 2008 ss 22, 28, 47, 49, 56, 58, 62, 66, 67, 114, 115 and the definition of ‘body’ in s 3(1) – Human Tissue Act 1982 ss 27, 29, 30, 33; Evidence Act 2008 ss 118, 119, 131A.
PRIVILEGE – fire causing damage to crane – crane owner sues company responsible for sales and service – seller serves subpoenas to produce documents on three non-party respondent incident investigators – owners insurer claims litigation privilege or in the alternative advice privilege – HELD – documents protected from disclosure by litigation privilege – WAIVER – seller claims owners insurer by its conduct waived privilege – HELD – privilege not waived
APPEAL – criminal – appeal against interlocutory judgment or order – ruling with respect to admissibility of evidence not a judgment or order – whether ruling on objection to production of documents in answer to subpoena is amenable to appeal – Criminal Appeal Act 1912 (NSW), s 5F; Evidence Act 1995 (NSW), s 131A
EVIDENCE – public interest immunity – whether party called to produce material not the party asserting public interest immunity – discussion of State of New South Wales v Public Transport Ticketing Corporation  NSWCA 60; Derbas v R  NSWCCA 14 – Evidence Act 1995 (NSW), ss 130 and 131A
EVIDENCE – public interest immunity – offender sought material relating to conduct of suspected informer for use at sentencing hearing – whether public interest immunity capable of being overcome for the purposes of sentencing – whether appellate court is in a position to perform requisite balancing exercise – whether offender demonstrated a real and not hypothetical issue with respect to sentence – Evidence Act 1995 (NSW), s 130
EVIDENCE – privilege – journalist’s privilege – journalist’s assertion of privilege under s 126H(1) of the Evidence Act 1995 (Cth) – where journalist asserts that he or she is not compellable to produce a document in answer to a subpoena under ss 126H(1) and 131A – whether document falling within the ambit of a subpoena discloses, or enables to be ascertained, the identity of a person who provided information to the journalist in the expectation of confidentiality – where party issuing subpoena has not applied to the Court to exercise its discretion under ss 126H(2) or 131A(1A) to override journalist’s privilege on public interest grounds
Held: under s126H(1), a journalist is not compellable to produce a document that would disclose, or enable to be ascertained, the identity of the journalist’s informant as the source of the particular information for which the informant sought confidentiality – no such privilege exists if the informant’s identity as the journalist’s source of the particular information has already been disclosed or is able to ascertained
EVIDENCE – PRIVILEGE – joint privilege – material disclosed subject to joint privilege – whether jointly privileged material able to be tendered in inter partes proceedings – whether privilege waived or lost – question determined prior to trial – Evidence Act 2008 (VIC) ss 124 and 131A – whether proceedings relate to same matter as material – whether joint privilege arose out of joint retainer – loss of joint privilege at common law when parties in litigation – whether joint privilege able to be lost through party possessing material – Calcraft v Guest  1 QB 759.
CRIMINAL LAW – leave to appeal against interlocutory order – public interest immunity – application for production of a document disclosing confidential police informer – balancing exercise – common law applied – whether disclosure of identity of informer would assist accused in defence – relevance of potential consequences to informer if identity disclosed – claim to immunity from production upheld
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
CRIMINAL LAW – Appeal – where accused pleaded guilty to two counts of supplying large quantity of prohibited drug – where accused sought to ascertain role of third party in relation to his involvement in the offences to which he had pleaded guilty – where police informed Director of Public Prosecutions they held information “which might reasonably be expected to assist in the case for the prosecution or the case for the accused person” but that that material was subject to a bona fide claim of privilege, public interest immunity or statutory immunity – whether s 15A Director of Public Prosecutors Act 1986 obliged police to produce that information to Director of Public Prosecutions -
CRIMINAL LAW – prosecutor’s duty to act fairly – duty of disclosure – whether prosecutor should disclose to accused existence of material possibly relevant to accused’s defence but subject to claim of public interest immunity -
CRIMINAL LAW – sentence – stay of sentencing proceedings – prosecutor’s duty of disclosure – whether sentencing proceedings should be stayed until DPP obtains from police information in relation to third party’s role in his involvement in the offences to which he had pleaded guilty – avoidance of potential miscarriage of justice -
STATUTORY INTERPRETATION -whether permissible to use subordinate legislation to construe statute -
PRACTICE AND PROCEDURE – privilege – whether common law or Evidence Act 1995 applies – s 131A, Evidence Act – Evidence Act and not the common law applies where the objection to inspection taken by person required to produce documents on subpoena or notice to produce – s 131A, Evidence Act only applies where person objecting to disclosure on ground of privilege is same person required to produce document
PRACTICE AND PROCEDURE – privilege – waiver – no question of principle
PRACTICE AND PROCEDURE – Privilege – application for production of documents disclosed on discovery over which claim for legal professional privilege made – confidentiality – dominant purpose for which documents created
Australian Securities and Investments Commission Act 2001 (Cth) s 127
Evidence Act 1995 (Cth) ss 117, 118, 119, 131A
Evidence Act 1995 (NSW) ss 117, 118, 119, 131A
Evidence Act 2008 (VIC)
Evidence Amendment (Journalists’ Privilege) Act 2007 (Cth)
Evidence Amendment Act 2007 (NSW)
PRACTICE AND PROCEDURE – Preliminary discovery – Whether sufficient information to enable plaintiff to decide whether to commence proceedings – Whether reasonable grounds to believe that plaintiff may have right to obtain relief against defendant – Where relevant document that the plaintiff would inspect is privileged from inspection under the principles of state interest immunity – Discretionary considerations – Supreme Court (General Civil Procedure) Rules 2005 (Vic) r 32.05.
EVIDENCE – State interest immunity – Document prepared for and considered by committee of Cabinet – Business case for major State project – Whether document disclosing, or enabling to be ascertained, the existence or identity of confidential information relating to the administration of a law of a State, or disclosure which may prejudice the proper functioning of the government – Evidence Act 2008 (Vic) ss 130, 131A.
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).
PROCEDURE – Discovery and interrogatories – notice to produce – public interest immunity – whether should inspect documents – whether should read affidavit – revelation of methods of operation and identity of sources of information
EVIDENCE – privilege – client legal privilege – whether a consultant is an agent for the purposes of privilege – whether documents received in capacity as agent.
PROCEDURE – applicability of common law or UCPR and Evidence Act to question of whether documents produced in answer to a subpoena subject to client legal privilege – UCPR r 1.9 and s 131A of the Evidence Act 1995 .
PRACTICE AND PROCEDURE – ‘Without prejudice’ privilege – Evidence Act 2008 (Vic), ss 131 and 131A – Supreme Court (General Civil Procedure) Rules, r 42A.08 – Documents produced under subpoena – Objection to disclosure of documents to a party – Documents prepared in connection with an attempt to negotiate a settlement of a dispute – Requirement for evidence.
APPEAL – Leave to appeal from Associate Justice – Commercial Court – Hearing de novo – Appeal allowed.
EVIDENCE – Client legal privilege – Waiver of privilege – Where the defendant made a voluntary disclosure to the Australian Tax Office – Where an expert witness was briefed with a copy of that voluntary disclosure letter – Where the expert’s report refers to the contents of the voluntary disclosure letter – Where the defendant has served the expert report on the plaintiff – Where the defendant now claims client legal privilege over part of the voluntary disclosure letter – Whether the unredacted parts of the letter could properly be understood in the absence of the redacted parts.
EVIDENCE – Client legal privilege – Waiver of privilege – Where the plaintiff in his affidavit refers to receipt of legal advice from his solicitor in conference – Where the solicitor kept a file note of the conference – Whether the plaintiff has waived privilege over all advice received, and the entire file note of the solicitor.
PRACTICE AND PROCEDURE – Evidence – Privilege – Inspection of documents alleged to be subject to client legal privilege – Waiver of privilege – s 117, s 118, s 122, s 126, s 131A, s 133 of the Evidence Act 2008 (Vic) – Osland v Secretary, Department of Justice (2008) 234 CLR 275, Bennett v Chief Executive Officer of the Australian Customs Service  FCAFC 237; (2004) 140 FCR 101.
PRACTICE AND PROCEDURE – Whether leave to appeal should be granted from interlocutory decision dismissing application for inspection of documents – Dispute relating to waiver of client legal privilege – Decision attended with sufficient doubt – Nature of requirement that applicant demonstrate substantial injustice if decision not reversed – Leave to appeal refused.
Practice and procedure
Major litigation concerning Public Transport Ticketing contract with Integrated Transit Solutions
Dispute arising from plaintiff’s decision to terminate contract for the design, build and installation of an integrated Smartcard-based Ticketing and Fare payment system for public transport in the greater Sydney area
Claim by the State of New South Wales for an order excusing plaintiff from making available particular documents for inspection by defendants on basis that they relate to matters of State
Claim by defendants that plaintiff and State have taken a selective approach to the documents over which a claim has been asserted and that documents recording communications between plaintiff and New South Wales Government have been made available where it suits the purposes of the plaintiff to have them available in the proceedings and have been withheld where those purposes are not served
Material legal principles
Onus rests upon State to establish that material documents relate to ‘matters of State’ and that the balancing test favours non-production of material documents
Practice and procedure
Notices to produce
Legal professional privilege
Waiver of privilege
Application of Evidence Act 1995 to matters ancillary to proceedings before the court
Effect in New South Wales of changes to the rules concerning pre-trial inspection of documents including notices to produce
Legal professional privilege as a substantive right
Legal professional privilege applies to the advice of foreign lawyers-Onus for assertion of legal professional privilege