Category Archives: !! Part 3.10

Best v Bardsley and Insurance Australia Ltd [2013] ACTSC 141 (26 July 2013)

http://www.austlii.edu.au/au/cases/act/ACTSC/2013/141.html

STATUTORY INTERPRETATION – appeal from interlocutory decision of the Master – Client Legal Privilege – Road Transport (Third-Party Insurance) Act 2008 (ACT), s 139 – procedures before compulsory conference – whether requirement to provide relevant documents extends to documents protected by client legal privilege – s 171 Legislation Act 2001 (ACT) applies: Act must be interpreted to preserve the common law privilege in relation to client legal privilege – no express displacement of privilege or s 171 – no “manifest contrary intention” or clear contradiction of s 171 – maintenance of client legal privilege in s 139 not contrary to legislative intention of Act – appeal dismissed

Bradley Phillip Ingram -v- Y Twelve Pty Limited [2013] NSWSC 928 (12 July 2013)

http://www.austlii.edu.au/au/cases/nsw/NSWSC/2013/928.html

EVIDENCE – PRIVILEGE – common interest legal privilege – whether directors of companies party to proceedings have a common interest with companies in legal advice given to the companies – held there was no common interest but only a single interest and no disclosure to the directors because in so far as the communications were with directors, they were no more than the guiding mind and will of the companies.

College of Law Limited v Australian National University [2013] FCA 492 (23 May 2013)

http://www.austlii.edu.au/au/cases/cth/FCA/2013/492.html

PRACTICE AND PROCEDURE – discovery – whether discovery should be ordered in respect of categories pursuant to r 20.16 of the Federal Court Rules 2011 – whether scope of category should be reduced – whether categories sought are relevant to the proceedings

PRIVILEGE – legal professional privilege – implied waiver – whether substance of privileged legal advice disclosed in publicly available documents – whether disclosure occurred for a commercial or other advantageous purpose which is inconsistent with maintenance of the confidentiality of the advice

NAR v PPC1 [2013] NSWCCA 25 (15 February 2013)

http://www.austlii.edu.au/au/cases/nsw/NSWCCA/2013/25.html

CRIMINAL LAW – interlocutory appeal -sexual assault communications privilege – issue of subpoena and production of documents subject to leave – inspecting subpoenaed documents for protected confidences – consent to production – whether compelled documents had substantial probative value – Criminal Procedure Act 1986, ss 295-306

CONSTITUTIONAL LAW – limits on legislative power of States – essential characteristics of State court receiving federal jurisdiction – sexual assault communications privilege – State law prohibits compelled production of counselling communications – issue of subpoena and production of documents subject to leave – repugnancy to judicial power or institutional integrity of State court – Criminal Procedure Act 1986, ss 295-306

Ensham Resources Pty Limited v Aioi Insurance Company Limited [2012] FCAFC 191 (21 December 2012)

http://www.austlii.edu.au/au/cases/cth/FCAFC/2012/191.html

PRACTICE AND PROCEDURE – application for leave to appeal interlocutory orders – whether decision at first instance attended with sufficient doubt to warrant reconsideration by Full Court – whether substantial injustice would result if leave were refused supposing decision at first instance to be wrong

PRIVILEGE – legal professional privilege – litigation privilege – whether reports provided by loss adjuster subject to legal professional privilege – whether reports created when litigation reasonably anticipated – whether reports created for the dominant purpose of use in reasonably anticipated litigation

Tan v Commissioner of the New South Wales Police [2012] NSWSC 1580 (19 December 2012)

http://www.austlii.edu.au/au/cases/nsw/NSWSC/2012/1580.html

EVIDENCE – LEGAL PROFESSIONAL PRIVILEGE – electronic and computer data records seized by police in course of executing lawfully issued search warrants – plaintiff requested forensic examiner to extract data from his Blackberry mobile phone – electronic records containing digital data stored on the mobile phone were extracted and transmitted by the expert examiner to his computer – plaintiff provided with customised reports containing limited data derived from the first generation of material transmitted to the examiner’s computer – plaintiff subsequently had electronic memory on the mobile phone wiped.

As to computer and other electronic records and customised reports seized in execution of search warrants – plaintiff claimed all such records were protected by legal professional privilege upon the basis of advice from the lawyer retained by him to obtain electronic phone data from the mobile phone – digital data initially extracted from the mobile phone was not privileged because:
(i) the whole of the stored data was not sought or required by the plaintiff’s lawyer;
(ii) the digital form of such data was in the nature of original material and was not a copy of other material;
(iii) the entirety of the stored mobile telephone data was not brought into existence for the dominant purpose of obtaining legal advice or for future use in legal proceedings.

Claim for privilege in respect of all data downloaded and transmitted in any event also failed for public policy reasons because the plaintiff deliberately wiped the phone’s memory.

The customised reports specifically sought by the plaintiff and which came into existence following instructions given by the plaintiff to the forensic expert were privileged because they were brought into existence for the dominant purpose of communicating or submitting them to plaintiff’s lawyer for use in anticipated litigation or to obtain legal advice.

Winra v Skycity Adelaide Pty Ltd [2012] FCA 1447 (18 December 2012)

http://www.austlii.edu.au/au/cases/cth/FCA/2012/1447.html

PRACTICE AND PROCEDURE – discovery – application for non-standard and more extensive discovery under Rules 20.13 and 20.14 of the Federal Court Rules 2011 (Cth) (“the Rules”) – alternative application for particular discovery under Rule 20.21 of the Rules.

PRIVILEGE – legal professional privilege – implied waiver – whether privileged legal advice put in issue by pleading – whether implied waiver on basis of partial disclosure.

Held: The first respondent has not waived legal professional privilege. Other orders for discovery made.

Armstrong Strategic Management and Marketing Pty Ltd v Expense Reduction Analysts Group Pty Ltd;Expense Reduction Analysts Group Pty Limited v Armstrong Strategic Management and Marketing Pty Limited [2012] NSWCA 430 (18 December 2012)

http://www.austlii.edu.au/au/cases/nsw/NSWCA/2012/430.html

DISCOVERY AND INTERROGATORIES – discovery and inspection of documents – legal professional privilege – where verified list of documents produced in required form and inspection granted – producing party asserted before trial that its solicitors had mistakenly failed to claim privilege over certain documents over which no privilege was claimed in the list of documents – motion to restrain Appellant from making use of any of the allegedly privileged documents and to return the documents – legal professional privilege is a means of resisting compulsory disclosure of confidential information by process of law but not a basis on which to seek injunctive relief – once disclosure has been made the party seeking recovery of the documents must rely on the equity protecting confidential information – equity will intervene where it would be unconscientious in the circumstances for the recipient to make use of the confidential information – application of principle to disclosure of privileged documents in accordance with the courts’ discovery processes means disclosure will not be reversed except in the case of fraud or mistake that is or ought to be obvious to the recipient – whether it was apparent to the solicitors for the Appellant that the producing party had made an obvious mistake in producing the documents in question – objective evidence of care and deliberation taken in selection of documents and claims of privilege – would not have been obvious to a reasonably competent solicitor that a mistake had been made – motion dismissed

DISCOVERY AND INTERROGATORIES – discovery and inspection of documents – legal professional privilege – waiver of privilege – whether disclosing parties have acted in a way inconsistent with the maintenance of their privilege – privilege belongs to client and can thus only be waived by client – engaged solicitors nonetheless hold ostensible authority to act as agent for client all matters that might reasonably be thought to arise in the conduct of a litigation including waiver of privilege – where certificate of advice provided by solicitor and verifying affidavit provided by client with list of documents – assertion of privilege inconsistent with earlier disclosure – privilege waived

WORDS AND PHRASES – “client legal privilege”, “legal professional privilege”, “confidential information”, “obvious mistake”

Lahoud v Lahoud [2012] NSWCA 401 (11 December 2012)

http://www.austlii.edu.au/au/cases/nsw/NSWCA/2012/401.html

PROCEDURE – judgments and orders – amending varying and setting aside – order for payment of interest – express reservation of further consideration – whether subsequent order may vary existing regime by removing entitlement to interest already accrued – INTEREST – order for payment of interest – rights thereunder – common law rule as to accrual of interest – APPEAL – review of factual findings – whether evaluation attended by error

Levy v Bablis [2012] NSWCA 157 (30 May 2012)

http://www.austlii.edu.au/au/cases/nsw/NSWCA/2012/157.html

PRACTICE & PROCEDURE – Interlocutory application – Application for leave to adduce fresh and further evidence on appeal

EVIDENCE – Subpoena to produce documents – Claim of legal professional privilege over subpoenaed documents – Whether the documents were privileged – Copies of documents submitted to legal advisers for legal advice are privileged – Waiver of privilege – Originals not privileged

Derbas v R [2012] NSWCCA 14 (21 February 2012)

http://www.austlii.edu.au/au/cases/nsw/NSWCCA/2012/14.html

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

Kirby v Centro Properties Limited (No 2) [2012] FCA 70 (10 February 2012)

http://www.austlii.edu.au/au/cases/cth/FCA/2012/70.html

PRIVILEGE – legal professional privilege – legal advice – whether parts of retainers which revealed or permitted to be inferred the nature of legal advice sought by a client were privileged – whether privilege can attach to communications between solicitor and a prospective client – whether communications between in-house lawyer and employing corporation and corporation and external lawyers were privileged – whether evidence from in-house lawyer and Company Secretary sufficient to discharge burden as to dominant purpose – whether communications between directors disclosing legal advice from external lawyers privileged – whether evidence from Company Secretary sufficient to discharge burden – whether adverse inference should be drawn because authors of communications were not called – whether (i) communications between solicitors and client; (ii) solicitors’ internal work product; (iii) communications between solicitor and third parties (accountants and other solicitors); were privileged – whether evidence of solicitors sufficient to discharge burden in circumstances where it was claimed the client had multiple purposes including an operational purposes – whether the claimed operational purpose involved the purpose of obtaining legal advice – claims for privilege upheld

Waiver – implied waiver – whether privileged contents of retainers waived because gist of the nature of advice sought was disclosed in furtherance of protecting retainers from disclosure – whether voluntary but limited and qualified disclosure to a third party resulted in an implied waiver as against the person seeking disclosure – whether implied waiver by reason of asserted deployment of the substance of privileged documents by directors of the privilege holder – no waiver found – application dismissed

Bromberg J
LEGAL AND PROFESSIONAL PRIVILEGE – GENERAL PRINCIPLES

PWC’s application fell to be determined under the common law rather than the Evidence Act 1995 (Cth): Esso Australia Resources Limited v Commissioner of Taxation of the Commonwealth of Australia [1999] HCA 67; (1999) 201 CLR 49 at [16] (Gleeson CJ, Gaudron and Gummow JJ). As Gleeson CJ, Gaudron, Gummow and Hayne JJ said at [9] in The Daniels Corporation International Pty Ltd v Australia Competition and Consumer Commission [2002] HCA 49; (2002) 213 CLR 543:

It is now settled that legal professional privilege is a rule of substantive law which may be availed of by a person to resist the giving of information or the production of documents which would reveal communications between a client and his or her lawyer made for the dominant purpose of giving or obtaining legal advice or the provision of legal services, including representation in legal proceedings.

Australian Crime Commission v Stoddart [2011] HCA 47 (30 November 2011)

http://www.austlii.edu.au/au/cases/cth/HCA/2011/47.html

Evidence – Privilege – Spousal privilege – Witness summonsed pursuant to s 28(1) of Australian Crime Commission Act 2002 (Cth) (“Act”) to give evidence regarding “federally relevant criminal activity” involving her husband – Witness declined to answer examiner’s questions by claiming spousal privilege – Whether spousal privilege exists at common law and, if so, whether spousal privilege extends to non-curial proceedings – If spousal privilege exists at common law, whether Act restricts or abrogates spousal privilege.

Words and phrases – “compellability”, “competence”, “spousal privilege”.

Kentish Council v Bellenjuc Pty Ltd [2011] TASSC 58 (11 November 2011)

http://www.austlii.edu.au/au/cases/tas/TASSC/2011/58.html

Procedure – Discovery and interrogatories – Discovery and inspection of documents – Production and inspection – Grounds for resisting production – Legal professional privilege – Waiver of privilege – Implied waiver – Solicitor’s instructions to expert – Proof of expert delivered – No express reference in proof to or incorporation of instructing material – Assumptions of fact set out – Rule of court requiring expert proof to contain facts, matters and assumption on which opinion expressed – Relevant principles – No implied waiver.
Supreme Court Rules 2000 (Tas), rr515 and 516(2)(d).
Mann v Carnell [1999] HCA 66; (1999) 201 CLR 1; Cole v Dyer (1999) 74 SASR 216; Australian Securities and Investments Commission v Southcorp Ltd [2003] FCA 804; British American Tobacco Australia Services Ltd v Cowell [2002] VSCA 197; (2002) 7 VR 524 applied.
Attorney-General (NT) v Maurice (1986) 161 CLR 475; Clark v Boden [2004] TASSC 119; (2004) 13 Tas R 198; Dean v More Than a Morsel Pty Ltd [2002] ACTSC 101; (2002) 170 FLR 432, considered.
Aust Dig Procedure [449]

In the matter of One.Tel Limited (in liquidation) [2011] NSWSC 1027 (19 August 2011)

http://www.austlii.edu.au/au/cases/nsw/NSWSC/2011/1027.html

CORPORATIONS – costs – interlocutory application for access to documents the subject of notice to produce – where dispute in relation to privilege – initial claim for privilege in respect of three documents not pressed and subsequently claim for access not pressed in respect of balance of documents – producing party the substantially successful party – costs should follow the event after producing party abandoned its claim for privilege in respect of the three documents and provided detailed explanation of basis of claim for balance of documents

Kentish Council v Bellenjuc Pty Ltd [2011] TASSC 58 (11 November 2011)

http://www.austlii.edu.au/au/cases/tas/supreme_ct/2011/58.html

Procedure – Discovery and interrogatories – Discovery and inspection of documents – Production and inspection – Grounds for resisting production – Legal professional privilege – Waiver of privilege – Implied waiver – Solicitor’s instructions to expert – Proof of expert delivered – No express reference in proof to or incorporation of instructing material – Assumptions of fact set out – Rule of court requiring expert proof to contain facts, matters and assumption on which opinion expressed – Relevant principles – No implied waiver.
Supreme Court Rules 2000 (Tas), rr515 and 516(2)(d).
Mann v Carnell [1999] HCA 66; (1999) 201 CLR 1; Cole v Dyer (1999) 74 SASR 216; Australian Securities and Investments Commission v Southcorp Ltd [2003] FCA 804; British American Tobacco Australia Services Ltd v Cowell [2002] VSCA 197; (2002) 7 VR 524 applied.
Attorney-General (NT) v Maurice (1986) 161 CLR 475; Clark v Boden [2004] TASSC 119; (2004) 13 Tas R 198; Dean v More Than a Morsel Pty Ltd [2002] ACTSC 101; (2002) 170 FLR 432, considered.
Aust Dig Procedure [449]

Hawksford v Hawksford; Hawksford v Hawksford [2008] NSWSC 31 (1 February 2008)

http://www.austlii.edu.au/au/cases/nsw/NSWSC/2008/31.html

PROCEDURE – Discovery and inspection of documents – Grounds for resisting production – Client legal privilege – Whether documents privileged – Dominant purpose for creation of documents – Whether two directors of company each equally entitled to maintain claims for privilege on behalf of company – Director defending claims on behalf of company entitled to maintain claims for privilege on behalf of company – Where retainer of solicitor by company invalid because director who retained services of solicitor on behalf of company acted ultra vires – Whetherbelief that retainer exists sufficient to support privilege – Privilege available where client bona fide believed on reasonable grounds that the solicitor was retained as its solicitor – Held that director with authority to defend proceedings on behalf of company entitled to maintain claim for privilege, on behalf of company, over certain communications with solicitor which were created when company believed retainer existed.CORPORATIONS – Orders previously made for inspection of documents by a director – Supplemental orders made for purpose of making more efficacious the principal orders.

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

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

http://www.austlii.edu.au/au/cases/nsw/NSWSC/2010/1323.html

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

Priceline Pty Ltd v JHY Nominees Pty Ltd & Ors [2010] VSCA 129 (9 June 2010)

http://www.austlii.edu.au/au/cases/vic/VSCA/2010/129.html

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.

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.

R (Cth) v Petroulias (No. 22) [2007] NSWSC 692 (29 June 2007)

[2007] NSWSC 692

CRIMINAL LAW – trial on indictment before Supreme Court – subpoena directed to Commonwealth Director of Public Prosecutions – seeks production of notes of conferences between prosecuting counsel and solicitors and Crown witnesses – claim of client legal privilege – whether Part 3.10 Evidence Act 1995 or common law principles apply to privilege claim – relationship between client legal privilege and prosecution duty of disclosure – whether privilege waived by prosecution calling witnesses at committal proceedings or earlier trials of Accused – claim for privilege upheld

Thomas Richard Wenkart and Anor v the Commissioner, Australian Federal Police and Ors [1996] FCA 1871 (11 November 1996)

[1996] FCA 1871

Evidence – documentary evidence – legal professional privilege – common law test – sole purpose test.

Evidence – documentary evidence – legal professional privilege – effect of purported waiver of privilege by a party on privilege claimed by others.

Evidence – documentary evidence – legal professional privilege – privilege can be claimed on document passing between legal and other advisers of a client with a view to the giving of legal advice to the client.

Evidence Act 1995  (Cth) s118 Part 3.10

Australian Competition & Consumer Commission v Lux Pty Ltd [2003] FCA 89 (18 February 2003)

[2003] FCA 89

EVIDENCE – expert’s report – objection to admission – whether danger unfairly prejudicial, misleading or confusing or result in waste of time – whether usurps ultimate function of court – whether excluded as a consequence of non-compliance with Practice Note or Guidelines for Expert Witnesses – whether Guidelines abrogate privilege – whether probative value substantially outweighed

EVIDENCE – legal professional privilege – principles applicable to experts’ reports – application to documents – rulings

EVIDENCE – witness statements – objections – whether s 51AB(4) of the Trade Practices Act 1974 (Cth) a barrier to particular evidence – whether unfairness – other objections

Evidence Act 1995  (Cth) ss 63, 64, 80, 118, 122, 135, Pt 3.10

State of New South Wales v Jackson [2007] NSWCA 279 (10 October 2007)

[2007] NSWCA 279

PRIVILEGE – client legal privilege – school accident – accident form completed by teacher – teacher obtained statements from witnesses – whether statements were confidential documents within meaning in  Evidence Act 1995  – consideration of implied obligation not to disclose contents – no obligation – not confidential documents – whether court will inspect documents for which privilege claimed – can inspect and did so because might have contained something material to confidentiality – whether dominant purpose of provision of professional legal services relating to anticipated proceedings – consideration of when proceedings are anticipated – was the dominant purpose – but statements not privileged because not confidential documents.

LEGISLATION CITED:
Evidence Act 1995, Div 1 Pt 3.10

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.

Macedonian Orthodox Community Church St Petka Inc v His Eminence Petar, the Diocesan Bishop of the Macedonian Orthodox Church of Australia and New Zealand & Anor [2006] NSWCA 160 (29 June 2006)

[2006] NSWCA 160

TRUSTS – application for judicial advice by trustee – parties given notice under s 63(4) of the Trustee Act 1925 (NSW) – whether parties given notice are entitled to privileged legal opinion obtained by trustee and provided to Court – no entitlement to privileged material
JUDICIAL ADVICE – application under s 63 of the Trustee Act 1925 (NSW) – whether proceedings adversarial – proceedings non-adversarial
PRIVILEGE – legal professional privilege –legal opinion obtained by trustee to assist court in application for judicial advice – privilege covers legal opinion in its entirety – privilege not abrogated by rules of natural justice –whether implied waiver by placing legal opinion before court – no waiver

Evidence Act 1995 (NSW) ss 4(1), 118, 122 Pt 3.10 Div 1

In the matter of Nielsen & Moller Autoglass (NSW) Pty Limited (in liq) ; Geoffrey James Rankine & Anor v John Frederick Lord & Anor [2008] NSWSC 1197 (14 November 2008)

[2008] NSWSC 1197

CORPORATIONS – PRACTICE AND PROCEDURE – Orders for production – setting aside for oppression – respondents appointed special purpose liquidators (“the liquidators”) of first defendant company with specific powers and functions (“the appointment order”) – orders for production made, ancillary to summonses for examination issued pursuant to ss 596A and 596B of the Corporations Act 2001 (Cth), on ex parte application of liquidators (“the Orders”) – applicants seek to set aside Orders in whole on the basis of oppression, or in part either on the basis that the Orders go beyond the authority given to the liquidators by the appointment order or on the basis that they compel production of privileged documents – procedure for claiming privilege where orders for production made ancillary to summonses for examination issued pursuant to ss 596A and 596B of the Corporations Act 2001 – Uniform Civil Procedure Rules 2005 (NSW) Pt 1 rr 1.8 and 1.9 considered – Meteyard v Love as Receivers and Managers of Southland Coal Pty Ltd [2005] NSWCA 444; (2005) 65 NSWLR 36 applied – Orders set aside

Australian Competition & Consumer Commission v Australian Safeways Stores Pty Ltd & Ors [1998] FCA 237 (18 March 1998)

[1998] FCA 237

EVIDENCE – legal professional privilege – interlocutory proceedings – discovery and subpoenas – whether the appropriate test is common law “sole purpose” or statutory “dominant purpose” test – whether the  Evidence Act 1995   (Cth) has impliedly repealed or abrogated the sole purpose test laid down in Grant v Downs [1976] HCA 63;  (1976) 135 CLR 674.

EVIDENCE – whether preparation and drafting of witness statements by applicant’s officer for provision of information and submission to the applicant were brought into existence for the purpose of use in prospective or reasonably anticipated legal proceedings or obtaining legal advice – whether objective or subjective factors to be considered in determining when proceedings were anticipated.

EVIDENCE – whether documents “confidential” – whether recording of non-confidential conversation in a document can be protected from production.

EVIDENCE – whether common interest privilege

EVIDENCE – waiver – express waiver by disclosure of documents to an adverse party waiver of privilege – whether waiver if documents annexed to an affidavit tendered to court waiver – whether substance of documents disclosed and was made knowingly voluntarily pursuant to s 122 Evidence Act 1974 .

Evidence Act 1995  (Cth) s 118, s 119, s 122, Pt 3.10, Div 1

Seven Network Limited v News Limited [2005] FCAFC 125 (7 July 2005)

[2005] FCAFC 125

LEGAL PROFESSIONAL PRIVILEGE – where edited version of file note produced in response to subpoena – where objection to producing unedited version taken on grounds of privilege – whether effect of O 33 r 11(5) Federal Court Rules is to extend operation of  Evidence Act 1995  (Cth) to pre-trial production – whether O 33 r 11 Federal Court Rules prevents Court from compelling pre-trial production of documents that cannot be adduced in evidence at trial

Evidence Act 1995  (Cth) Part 3.10 Division 1

R (Cth) v Petroulias (No. 22) [2007] NSWSC 692 (29 June 2007)

[2007] NSWSC 692

CRIMINAL LAW – trial on indictment before Supreme Court – subpoena directed to Commonwealth Director of Public Prosecutions – seeks production of notes of conferences between prosecuting counsel and solicitors and Crown witnesses – claim of client legal privilege – whether Part 3.10 Evidence Act 1995 or common law principles apply to privilege claim – relationship between client legal privilege and prosecution duty of disclosure – whether privilege waived by prosecution calling witnesses at committal proceedings or earlier trials of Accused – claim for privilege upheld