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
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 first defendant’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 126 of Evidence Act 2008 (Vic).
EVIDENCE – client legal privilege – waiver – whether for purposes of s 122(2) Evidence Act 1995 party acted inconsistently with objecting to evidence of counsel’s advice – counsel’s advice formed part of basis for matters deposed to in affidavit but not mentioned in affidavit.
EVIDENCE – client legal privilege – waiver – whether for purposes of s 122(3) of Evidence Act 1995 party knowingly and voluntarily disclosed the substance of counsel’s advice – disclosure that counsel had recommended a course of action – no disclosure of counsel’s reasoning.
EVIDENCE – client legal privilege – wavier – where privilege in relation to other documents waived by voluntary disclosure – whether privilege waived pursuant to s 126 Evidence Act 1995 in relation to an advice of counsel because adducing evidence of it is reasonably necessary to enable a proper understanding of other documents.
PRACTICE AND PROCEDURE – Subpoena to independent expert – Inspection of documents – Client legal privilege – Express waiver of privilege in expert reports by delivery– Documentary communications between solicitor and independent expert – Whether waiver of privilege in consequence of delivery of expert reports – Inconsistency – Whether documents influence or underpin expert reports – ss 119, 122 and 126 of Evidence Act 2008 (Vict) – No waiver.
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 – 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 .
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 .
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.
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
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.
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).
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
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.
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.
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
Practice – Discovery – Production of document for inspection – Privilege – Legal professional privilege – Waiver – When imputed from conduct – Aboriginal land claim – Claim book filed and distributed to other parties – Whether waiver of privileged source materials used in preparation of book.
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.
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.
DISCOVERY AND INTERROGATORIES – discovery and inspection of documents – client legal privilege – whether documents brought into existence for the dominant purpose of providing legal advice or for use in legal proceedings.
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
 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 – 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 – 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
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 – 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 – client legal privilege – waiver – subpoena for production of documents – whether common law principles apply – relevance of the Evidence Act 1995 (Cth) to ancillary processes – adaptation of common law to take account of statute.
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.