Category Archives: s. 120

Marshall v Prescott [2013] NSWCA 152 (6 June 2013)

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

Chaina v Presbyterian Church (NSW) Property Trust (No. 9) [2013] NSWSC 212 (21 March 2013)

PROFESSIONS AND TRADES – lawyers – client legal privilege – waiver of – inconsistency between claims made and maintenance of the privilege – claim for mental harm – incapacity to conduct business or litigation alleged – documents seeking and providing instructions to solicitors in other litigation – privilege waived

Australian Crime Commission v Stewart [2012] FCA 29 (30 January 2012)

EVIDENCE – legal professional privilege – privilege claimed over documents obtained pursuant to search warrants and summons under the Australian Crime Commission Act 2002 (Cth) and Crimes Act 1914 (Cth) – whether Australian Crime Commission (ACC) entitled to inspect

EVIDENCE – whether documents subject to legal professional privilege – applicable principles – Evidence Act 1995 (Cth) not relevant – no issue of admissibility of evidence – issue to be determined under common law – legal professional privilege a fundamental common law immunity – whether reference to common law is to common law of Australia

PRIVATE INTERNATIONAL LAW – choice of law – whether right to inspect documents seized under Australian statute gives rise to choice of law question – question of statutory interpretation – no choice of law question – issue governed by Australian principles of legal professional privilege

PRIVATE INTERNATIONAL LAW – if choice of law question arises whether Australian choice of law principles apply

Perry & Anor v Powercor Australia Limited [2011] VSC 308 (4 July 2011)

PRACTICE AND PROCEDURE – Application for inspection of discovered reports on cause of fire at Coleraine on Black Saturday – Defendant’s solicitor informed that fire allegedly caused by defendant’s power line – Solicitor anticipated litigation against defendant – Solicitor consults CEO of defendant and instructed to carry out investigation – Solicitor seeks reports on cause of fire allegedly caused by defendant’s power line – Solicitor says purpose of reports was to give legal advice to defendant – defendant needed information in reports for a range of purposes – Duty of defendant to report defendant’s part in cause of fire to Energy Safe Victoria under the Electricity Safety Act 1998 – Duty of officers of defendant to act with reasonable degree of care and diligence under s 180 Corporations Act 2001 to ascertain defendant’s part in cause of fire – Failure of defendant to prove dominant purpose was covered by legal advice or legal litigation privilege – Inspection ordered – Section 180 Corporations Act 2001; Electricity Safety Act 1998; and ss 119 and 120 Evidence Act 2008 .

Hodgson v Amcor Ltd; Amcor Ltd v Barnes & Ors (No 4) [2011] VSC 269 (16 June 2011)

EVIDENCE – Legal Professional Privilege – ss 118, 119, 120 of the Evidence Act 2008 (Vic) – Whether privilege attached to document waived by delivery to 3rd party – Failure to object to document of which privilege is claimed in opening submissions – Whether acted in a manner inconsistent with the maintenance of confidentiality retained in document per s 117 of the Evidence Act 2008 (Vic) – Whether document can be adduced in evidence – Held privilege retained – Burden of proof – Whether burden of proof lies with the party asserting the privilege pursuant to s 122 of the Evidence Act 2008 (Vic) – Whether burden of proof shifts pursuant to s 122(5) of the Evidence Act 2008 (Vic)

PRACTICE AND PROCEDURE — Orders 42, 42A of the Supreme Court (General Civil Procedure) Rules 2005 (Vic) – Failure to provide subpoenaed documents directly to the Court by solicitor – Whether subpoenaed documents must be provided to the Court – Purpose of providing subpoenaed documents to Court prior to review – Subpoenaed documents received by practitioner referred to in an affidavit of documents – Conduct of the solicitor improper.

Kwan v Kang & 2 Ors [2003] NSWCA 336 (9 December 2003)

[2003] NSWCA 336

PRACTICE AND PROCEDURE – Alteration of reasons for judgment – APPREHENDED BIAS – Apprehended bias by reason of pre-judgment – Johnson v Johnson [2000] HCA 48; (2000) 201 CLR 488 test – Findings at an interlocutory stage expressed in terms of finality – Undesirability of judges supporting interlocutory evidentiary rulings by commenting on evidence. D

Evidence Act 1995, ss 118, 119, 120, 125

R v P [2001] NSWCA 473 (13 December 2001)

[2001] NSWCA 473

EVIDENCE – Privilege – Legal professional privilege or client legal privilege – Exceptions – Whether displaced in protective proceedings – Opinion evidence – Whether admissible if based on privileged communications – Protected reports

COURTS AND JUDGES – Appeal – Objection to evidence not taken below – Whether can be taken on appeal


PROFESSIONS – Lawyers – Duties to client – Privilege – Duty of confidence – Conflict of interests – Lawyer believes client incapable of giving rational instructions – Whether lawyer can take protective proceedings against client – Whether lawyer can use or disclose confidential information in such proceedings. D.

Evidence Act 1995  ss.4, 9, 119-122, 126A, 126B, 132, 134, 135

Anne Katherine Carnell v Arnold Mann [1998] FCA 1566 (4 December 1998)

[1998] FCA 1566

PRACTICE AND PROCEDURE – appeal from decision granting preliminary discovery – whether documents ordered to be produced subject to client legal privilege – whether privilege waived by disclosure to third party – consideration of s 122 of  Evidence Act 1995   – consideration of O 34A r 5 of Supreme Court Rules.

Evidence Act 1995  (Cth), ss 117, 118, 119, 120, 122

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

[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,

Tim Barr Pty Ltd v Narui Gold Coast Pty Ltd [2008] NSWSC 1070 (13 October 2008)

[2008] NSWSC 1070

EVIDENCE – admissibility and relevancy – client legal privilege under  Evidence Act 1995 , s 119 – whether lost through disclosure within s 122(2) or s 122(4) – various dealings with privileged document over a period of several years – assessment of those dealings – WORDS AND PHRASES – “disclosed”