Category Archives: s. 126

Matthews v SPI Electricity Pty Ltd & Anor (No 4) [2013] VSC 237 (8 May 2013)

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PRACTICE and PROCEDURE – inspection of subpoenaed documents – client legal privilege – expert reports disclosed, used and relied on in pre-trial expert conclaves – express waiver of privilege in expert reports – production and inspection resisted of privileged documents subpoenaed from experts – documents produced with redactions – redactions record privileged conversations between expert and legal advisors of first defendant – whether notes redacted influencing or underpinning expert reports – whether privileged waived –- ss. 119, 122(2) and 126 Evidence Act 2008 .

Matthews v SPI Electricity Pty Ltd & Ors [2013] VSC 33 (13 February 2013)

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PRACTICE AND PROCEDURE – Discovery and inspection – Client legal privilege – expert reports disclosed, used and relied on in pre-trial expert conclaves – express waiver of privilege in expert reports – production and inspection resisted of other privileged documents – associated materials waiver – documents influencing or underpinning expert reports – whether privileged waived – whether disclosure and reliance on expert reports at experts conclaves inconsistent with maintenance of privilege over other materials – timing of any waiver – ss. 122 (2) and 126 Evidence Act 2008 .

JB v Regina [2012] NSWCCA 12 (17 February 2012)

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CRIMINAL LAW – appeal – conviction – admissions – s 90 Evidence Ac 1995 – whether the trial judge should have admitted admissions made by an accused to a community support person.

CRIMINAL LAW – appeal – conviction – misdirection in presentation of defence case to jury – whether self-defence should have been put to the jury.

CRIMINAL LAW – appeal – sentence – wrong statutory ratio of parole to non-parole period – s 44 Crimes (Sentencing Procedure) Act 1999.

CRIMINAL LAW – appeal – sentence – whether the sentence was manifestly excessive – whether trial judge considered all mitigating factors – s 21A(3) Crimes (Sentencing Procedure) Act 1999.

Evidence Act 1995 (NSW), ss 90, 118, 126, 127

Gillies v Downer EDI Limited [2010] NSWSC 1323 (3 December 2010)

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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.

Evidence Act 1995

d’Apice v Gutkovich – Estate of Abraham (No . 1) [2010] NSWSC 1336 (27 October 2010)

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PROCEDURE – privilege – where proceedings concern testamentary capacity of deceased – where documents sought under subpoena addressed to deceased’s lawyer who is also lawyer for plaintiff seeking probate – where documents prima facie privileged under Evidence Act 1995 , s 119 or common law – application of Uniform Civil Procedure Rules, r 1.9 and Evidence Act to inspection of documents – whether Evidence Act , s 121 precludes privilege claim – whether deceased is “a client” for s 121 – whether privilege waived under Evidence Act , ss 122 or 126

Evidence Act 1995 (NSW)

Priceline Pty Ltd v JHY Nominees Pty Ltd & Ors [2010] VSC 61 (11 March 2010)

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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 [2004] FCAFC 237; (2004) 140 FCR 101.

Roads Corporation v Love [2010] VSC 253 (10 June 2010)

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EVIDENCE – Legal Professional Privilege – Evidence Act 2008 s.119 – Communications with prospective witness – Evidence Act 2008 s.122(2) – Waiver of privilege upon witness giving evidence at trial – Proper practice for legal practitioners to take proofs of evidence from witnesses separately and to encourage witnesses not to discuss their evidence with others, and particularly with other potential witnesses – Meeting of expert witnesses convened in part to discuss evidence in preparation for filing reports improper – Conduct amounted to inconsistency with maintenance of privilege pursuant to Evidence Act 2008 s.122(2) – Imputed waiver at common law – Loss of client legal privilege Evidence Act 2008 s.126.

LEGAL PRACTITIONERS – Legal Professional Privilege – Evidence Act 2008 s.119 – Communications with prospective witness – Proper practice for legal practitioners to take proofs of evidence from witnesses separately and to encourage witnesses not to discuss their evidence with others, and particularly with other potential witnesses – Meeting of expert witnesses convened in part to discuss evidence in preparation for filing reports improper – Conduct amounted to inconsistency with maintenance of privilege pursuant to Evidence Act 2008 s.122(2).

Limit (No 3) Limited v ACE Insurance Limited (No 3) [2009] NSWSC 1061 (23 February 2009)

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EVIDENCE – facts excluded from proof – on grounds of privilege – waiver of privilege over documents containing legal professional advice – whether or not the gist of legal professional advice has been disclosed – whether or not the contents of that advice has any forensic purpose – whether or not privilege has been impliedly waived – whether or not it is ‘reasonably necessary’ to see advice provided to an expert in order to understand a draft report from that expert
PROCEDURE – application to rely on expert report which was served late – whether or not the expert report is of any forensic value

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

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[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

New Cap Reinsurance Corporation Ltd (In Liq) and 1 Or v Renaissance Reinsurance Ltd [2007] NSWSC 258 (26 March 2007)

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[2007] NSWSC 258

PROCEDURE – Discovery and inspection of documents – Grounds for resisting production – Client legal privilege – Whether draft expert report, letters of instruction from clients’ solicitors to expert witness, and notes prepared for preparation of final report are privileged – Waiver of privilege – Whether privilege waived by service of final expert report – Whether draft reports, letters of instruction and notes influenced content of final report so that use or service of final report inconsistent with maintaining privilege in those materials – Waiver of privilege by voluntary disclosure – Held: draft expert report and preliminary letters of instruction from clients’ solicitors to expert witness, privileged because created for dominant purpose of plaintiff being provided with legal services – Privilege not waived.
PROCEDURE – Discovery and inspection of documents – Grounds for resisting production – Exclusion of evidence of settlement negotiations – Communication of extract of document made in the course of settlement negotiations – Held that defendant not entitled to inspect balance of document.
Considered: Evidence Act 1995 (Cth), ss 117, 119, 122, 126, 131(1)
PROCEDURE – Discovery and inspection of documents – Grounds for resisting production – Relevance – Documents created during later period reflecting historical financial position of company – Oppression – Where process of giving discovery of certain class of documents would be onerous – Discovery not necessary – Utility of discovery outweighed by burden – Discovery not ordered.

Australian Securities & Investments Commission v Rich [2004] NSWSC 923 (7 October 2004)

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[2004] NSWSC 923

EVIDENCE – client legal privilege – waiver – disclosure waiver – meetings at which accounting and legal advice was given and a decision was made to commence legal proceeding – whether privilege waived over notes of all communications made at meeting, by production of notes of meetings which masked material relating to legal advice but disclosed statements about legal matters

Evidence Act 1995 (NSW); ss 118, 119, 122, 126

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

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[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.

BT Australasia Pty Ltd v New South Wales & Telstra Corp Ltd (Judgment no. 8) [1998] FCA 295 (1 April 1998)

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[1998] FCA 295

EVIDENCE – client legal privilege – loss of privilege – whether substance of confidential communication was disclosed – whether holder of privilege impliedly consented to disclosure of confidential communication – whether disclosure of confidential communication was inadvertent.

Evidence Act 1995  (Cth), ss 121, 122, 126

Fire Monitoring Services Pty Limited v Hills Industries Limited [2002] FCA 1142 (16 September 2002)

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[2002] FCA 1142

DISCOVERY – documents not made available on basis of legal professional privilege – documents referred to in subsequent communication – section 126 of the  Evidence Act 1995  (Cth) not applicable – whether there has been a waiver of privilege arising from inconsistency, informed by considerations of fairness, between conduct of person claiming privilege and maintenance of confidentiality

Australian Medic-Care Company Ltd v Hamilton Pharmaceutical Pty Limited (No 5) [2008] FCA 1979 (19 December 2008)

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[2008] FCA 1979
EVIDENCE – loss of client legal privilege under s 126 of the  Evidence Act 1995  (Cth) – document reasonably necessary to enable a proper understanding of other documents put in evidence

PLEADING – application for leave to amend reply – amendment not necessary for the pleadings properly to reflect the conduct of the trial – further cross-examination inappropriate in the circumstances – amendment sought would cause undue prejudice to the respondent

Evidence Act 1995  (Cth) ss 119, 126

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

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[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

Sydney Harbour Casino Pty Ltd v Walter Vignoli [1999] NSWCA 273 (29 July 1999)

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[1999] NSWCA 273

EVIDENCE – Pre-trial procedures – Memorandum discovered in list of documents referring to witness statements protected by client legal privilege – Derivative application of the  Evidence Act 1995  to pre-trial procedures – s126  Evidence Act 1995  – Challenge to correctness of decision in Akins v Abigroup (1998) 43 NSWLR 539 – Evidence Act made applicable by Part 24 of Supreme Court Rules

BT Australasia Pty Ltd v New South Wales & Telstra Corp Ltd (Judgment no. 7) [1998] FCA 294 (1 April 1998)

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[1998] FCA 294

EVIDENCE – client legal privilege – loss of privilege – whether holder of privilege has put in issue the legal advice received – effect of  Evidence Act 1995  (Cth) on common law principles governing loss of client legal privilege – whether implied consent to disclosure of privileged communications – whether substance of privileged communication has been disclosed.

Evidence Act 1995 (Cth) ss 118, 119, 120, 121, 122, 126,

Andrew Hammer & Ors v Anthony Sunman & Anor [1998] FCA 1254 (2 October 1998)

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[1998] FCA 1254

EVIDENCE -  Evidence Act 1995  (Cth) – client legal privilege – motion seeking orders compelling discovery and production for inspection of records of advice given by counsel to applicants – implied consent to disclosure – confidential legal advice as factor influencing state of mind – whether production of documents reasonably necessary to enable proper understanding of communication or document.

Evidence Act 1995  (Cth), ss 122, 126

David Towney v Minister for Land & Water Conservation for NSW & Ors [1997] FCA 656 (23 July 1997)

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[1997] FCA 656

EVIDENCE – client legal privilege – application for inspection of subpoenaed documents relating to the preparation of expert anthropological reports filed in native title proceedings – whether privilege lost – whether the test stated in the  Evidence Act 1995  (Cth) applies or whether the common law principles concerning implied waiver apply – whether inspection of documents reasonably necessary to enable a proper understanding of the expert reports, within s 126 of the  Evidence Act 1995   (Cth).

WORDS AND PHRASES -  Evidence Act 1995  (Cth), s 126 – “reasonably necessary” – “proper understanding”.

Evidence Act 1995  (Cth), ss 117(1), 118, 119, 122, 126.