Category Archives: s. 133

HRF Nominees Pty Ltd (In Liq) & Ors v Man Civil Constructions Pty Ltd & Ors [2014] VSC 93 (14 March 2014)

http://www.austlii.edu.au/au/cases/vic/VSC/2014/93.html

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.

Shea v TruEnergy Services Pty Ltd (No 5) [2013] FCA 937 (5 September 2013)

http://www.austlii.edu.au/au/cases/cth/FCA/2013/937.html

PRACTICE AND PROCEDURE –– production sought during trial of draft expert reports and expert’s correspondence with solicitors – whether client legal privilege subsisted and if so waived – relevant provisions of Evidence Act 1995 (Cth) and applicable legal principles – call for production too late – moreover, evidence indicated that documents had client legal privilege which was not waived

22. The present case is not governed by common law principles of legal professional privilege but rather is governed by the Evidence Act (see s 4(1) of that Act).

Bare v Small & Ors [2011] VSC 639 (19 December 2011)

http://www.austlii.edu.au/au/cases/vic/VSC/2011/639.html

EVIDENCE ― Client legal privilege ― Legal advice privilege ― Loss of privilege where communication “was made or prepared in furtherance of a deliberate abuse of power” ― Advice sought from counsel by statutory decision maker ― Subsequent decision alleged to constitute an abuse of power ― Subpoena to produce legal advice ― Whether privilege lost ― “Deliberate abuse of power” requires knowledge of unlawful end ― No loss of privilege ― Evidence Act (No 47 of 2008), s 125(1)(b).

Octagon Inc v Hewitt & Anor (No 2) [2011] VSC 373 (10 August 2011)

http://www.austlii.edu.au/au/cases/vic/VSC/2011/373.html

PRACTICE & PROCEDURE – inspection of documents – redaction – whether justified – relevance and confidentiality asserted – whether further inspection by court warranted – whether discovering party has justified redaction – Civil Procedure Act 2010 (Vic) ss 54, 55, 56 – Supreme Court (General Civil Procedure) Rules 2005 r 29.11.

PRACTICE & PROCEDURE – appeal from associate justice – nature of rehearing de novo – special leave to rely on further affidavit – whether unreasonable advantage being taken of rehearing de novo – whether judge bound by prior conduct of application – Civil Procedure Act 2010 (Vic) ss 7, 8, 9, 26, 27 – Supreme Court (General Civil Procedure) Rules 2005 r 77.06.

Amcor Limited & Ors v Barnes & Ors [2011] VSC 341 (26 July 2011)

http://www.austlii.edu.au/au/cases/vic/VSC/2011/341.html

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).

Hodgson v Amcor Ltd; Amcor Ltd v Barnes & Ors (No 5) [2011] VSC 295 (21 June 2011)

http://www.austlii.edu.au/au/cases/vic/VSC/2011/295.html

EVIDENCE – Business Records – Whether solicitor’s file (or part thereof) admissible as a business record – Inter office memorandum – Internal file note – s.69 Evidence Act 2008 – Inspection of document under s. 133 Evidence Act 2008 – Refusal to admit document into evidence because it is confusing – s. 135 Evidence Act applied.

Hodgson v Amcor Ltd; Amcor Ltd v Barnes & Ors (No 2) [2011] VSC 204 (16 May 2011)

http://www.austlii.edu.au/au/cases/vic/VSC/2011/204.html

PRACTICE AND PROCEDURE – Legal professional privilege – Legal principles applied – No necessity to identify Third Parties communicated with – Solicitor’s memorandum of costs and time ledger – Crime/Fraud exception – Inspection of documents for the purpose of determining the question – Ruling sustaining privilege in relation to some documents and rejecting privilege in relation to others in a redacted form – Rule 29.13 of the Supreme Court (General Civil Procedure) Rules 2005 – Evidence Act 2008 (Vic) ss.118, 119 and 133.

Commissioner of Police v Sleiman & AVS Group of Companies Pty Ltd & Ors [2011] NSWCA 21 (21 February 2011)

http://www.austlii.edu.au/au/cases/nsw/NSWCA/2011/21.html

ADMINISTRATIVE LAW – revocation of security licence by Commissioner of Police – application for review of decision to the Administrative Decisions Tribunal (“ADT”) – ADT required by s 29(3) of Securities Industries Act 1997 (NSW) (“SI Act”) to ensure that it does not disclose the existence or content of “criminal intelligence” without approval of the Commissioner – Commissioner relied on criminal intelligence – whether ADT bound or empowered to adopt a “special advocate” procedure to represent the review applicant’s interests – whether the Commissioner’s refusal to approve disclosure of the criminal intelligence was amenable to judicial review – whether the Commissioner was bound to consider the review applicant’s request for approval to disclosure – powers and duties of the ADT to afford procedural fairness in face of confidentiality regime.

CONSTITUTIONAL LAW – whether s 29(3) of the SI Act is unconstitutional because it purports to deny the supervisory jurisdiction of the Supreme Court – whether the constitutional issue is premature – application of principles in Kirk [2010] HCA 1; (2010) 239 CLR 531 – difficulties facing applicant for judicial review do not establish a denial of the supervisory jurisdiction

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

http://www.austlii.edu.au/au/cases/vic/VICSC/2010/61.html

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.

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.

Kang v Kwan and 2 Ors [2001] NSWSC 697 (16 August 2001)

[2001] NSWSC 697

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.

ACTS CITED:
Evidence Act s122, s133, s135

Singapore Airlines v Sydney Airports Corporation and Anor [2004] NSWSC 380 (7 May 2004)

[2004] NSWSC 380

EVIDENCE – discovery – where corporate counsel commissioned expert report into accident soon after accident occurred – claim for discovery of expert report – whether report privileged – s 119 Evidence Act 1995 – Pt 23 r 1(c) Supreme Court Rules – whether dominant purpose and existence of anticipated proceedings to be assessed at time report commissioned or when report brought into existence – where report had multiple purposes – whether there was a dominant purpose -where report commissioned by corporate counsel on behalf of company within the scope of employee’s authority – whether relevant dominant purpose is that of corporate counsel or company – distinction between employee’s purpose in commissioning report and company’s purpose – whether at time report was commissioned there was an anticipated legal proceeding – if privilege existed, whether subsequently lost – ss 122 and 123 Evidence Act 1995 – whether common law of waiver relevant – whether privilege lost by voluntary disclosure – distinction between disclosure of substance and effect relating to an expert report – whether disclosure of substance

Michael Wilson and Partners Limited v Robert Colin Nicholls & Ors [2009] NSWSC 763 (10 August 2009)

[2009] NSWSC 763

Practice and procedure
Notices to produce
Legal professional privilege
Waiver of privilege
Weighing exercise
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

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

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”