Category Archives: s. 118

Buchanan v TAL Life Limited [2015] FCA 42 (6 February 2015)

PRACTICE AND PROCEDURE – Rule 30.01 Federal Court Rules 2011 – application for particular questions arising in proceeding to be heard separately from any other questions – guiding principles – application of principles to particular circumstances – where hearing of separate questions has capacity to bring proceedings to finality

EVIDENCE – ss 118 and 119 Evidence Act 1995 (Cth) – whether redacted portions of discovered documents privileged under either provision – whether adducing evidence of redacted portions would result in disclosure of confidential communications or contents of confidential documents brought into existence for either of the respective dominant purposes referred to in these provisions

El-Zayet v The Queen [2014] NSWCCA 298 (10 December 2014)

JURISDICTION – Court of Appeal – Supreme Court Act 1970, s 17 – Whether Court of Appeal has jurisdiction to hear appeal from decision under Costs in Criminal Cases Act – Whether interlocutory order is part of proceedings

JURISDICTION – Court of Criminal Appeal – Criminal Appeal Act 1912, s 5F – Whether Court of Criminal Appeal has jurisdiction to hear appeal from decision under Costs in Criminal Cases Act – Whether decision under Costs in Criminal Cases Act is interlocutory

PRIVILEGE – client legal privilege – applicability of Evidence Act 1995 , ss 118 and 119 – where evidence not adduced

PRIVILEGE – client legal privilege – waiver – imputed waiver – whether conduct was plainly inconsistent with maintenance of confidentiality

AGENCY – implied or apparent authority – whether authority to compromise proceedings carried authority to waive privilege

Stewart v State of Victoria & Ors [2014] VSC 601 (2 December 2014)

PRACTICE AND PROCEDURE – Further and better discovery – claim for indemnity under policy of insurance that has not been located – previous similar claims accepted – relevance of documents evidencing acceptance of indemnity in the earlier claims –common interest privilege – whether instructions given by one party to a person likely to be a witness and notes of interview of that person are discoverable even if not admissible– whether the instructions and notes are the subject of litigation or advice privilege – ss 118 and 119 Evidence Act 2008 .

Wilson v Mitchell [2014] VSC 280 (13 June 2014)

PRACTICE AND PROCEDURE – Inspection of documents held on court file – application for confidentiality order – whether appellant would be seriously compromised or adversely affected if intervener not prevented from inspecting and/or copying the relevant documents – application for confidentiality order refused – Supreme Court (General Civil Procedure Rules) 2005, r 28.05.

DPP (Cth) v Galloway (a pseudonym) & Ors [2014] VSCA 272 (30 October 2014)

EVIDENCE – Criminal proceedings – Legal professional privilege – Evidence sought to be elicited by accused in cross-examination – Whether witness can refuse to answer on ground of legal professional privilege – Whether statutory provision abrogated common law right – Principle of legality – No indication that legislature intended to abrogate right – Witness not required to answer – Baker v Campbell [1983] HCA 39; (1983) 153 CLR 52, R v Barton [1973] 1 WLR 115, R v Ataou [1988] QB 798, R v Craig [1975] 1 NZLR 597 considered – Carter v Northmore Hale Davy & Leake (1995) 183 CLR 121 applied – Evidence Act 2008 ss 118, 119, 123, 131A.

STATUTORY INTERPRETATION – Abrogation of common law rights – Principle of legality – Criminal proceedings – Legal professional privilege – Evidence sought to be elicited by accused in cross-examination – Whether witness can refuse to answer on ground of legal professional privilege – Whether statutory provision abrogated common law right –– No indication that legislature intended to abrogate right – Witness not required to answer – Evidence Act 2008 ss 118, 119, 123, 131A.

WORDS AND PHRASES – ‘Adducing evidence’.

AusNet Electricity Services Pty Ltd v Liesfield [2014] VSC 474 (23 September 2014)

PRACTICE AND PROCEDURE – Class action proceedings against the appellant arising out one of the Black Saturday bushfires (‘the Murrindindi fire’) – Appellant claimed legal professional privilege in relation to a bundle of reports it had prepared (‘the technical analysis documents’) – Documents produced shortly after the appellant was advised by the Victoria Police that the police were investigating whether the appellant was responsible for the start of the fire – Associate Judge ruled that the technical analysis documents were not privileged – Appeal against the decision of the Associate Judge – Instruction for production of the documents given by a sub-committee of the board of directors – Member of the sub-committee giving the instruction not called to explain purpose in seeking production of the technical analysis documents – Consideration of the dominant purpose of the sub-committee – Consideration of possible purposes of the sub-committee other than privileged purposes – Consideration of inferences that could be drawn from the appellant’s failure to call evidence that was available to be called – Blatch v Archer considered – Appeal dismissed.

PRACTICE AND PROCEDURE – Appeal from a decision of an Associate Judge on findings of fact – nature of appeal – test to be applied on appeal to findings of fact.

In the matter of Petrolink Pty Ltd; Smith v Boné [2014] FCA 1024 (22 September 2014)

PRACTICE AND PROCEDURE – interlocutory process – application for summary dismissal on the basis the interlocutory process is an abuse of process – whether the predominant purpose of the interlocutory process was to obtain a collateral advantage or was otherwise improper

PRACTICE AND PROCEDURE – words and phrases – “abuse of process” – relevant principles – application of ss 11(2), 131(1) and 131(2)(k) of the Evidence Act 1995

Domain Paper (Australia) Pty Ltd v Galloway [2014] FCA 936 (28 August 2014)

EVIDENCE – legal professional privilege – advice privilege – dominant purpose of giving or obtaining legal advice or the provision of legal services – whether legal advice provided to individual in personal capacity or in capacity as director of company – onus of proving claim for privilege – whether onus of proving privilege discharged

Bailey v Director General Department of Natural Resources (formerly known as Department of Land and Water Conservation) [2014] NSWSC 1012 (25 July 2014)

MALICIOUS PROSECUTION – whether institution and maintenance of criminal proceedings for illegal clearing of native vegetation in the Land and Environment Court and by a case stated to the Court of Criminal Appeal was malicious and without reasonable and probable cause – misfeasance in public office – negligent misrepresentation – interference in trade or business – principle in Jones v Dunkel – claim of client legal privilege – whether plaintiffs exempt from the need to obtain development consent prior to clearing native vegetation – whether clearing part of “designated development” under s 12(f) Native Vegetation Conservation Act 1997 – whether plaintiffs entitled to rely on “rural structures” or “farm dam exemption” – whether any valid or conforming application under Part 8 of the Water Act 1912

Asahi Holdings (Australia) Pty Ltd v Pacific Equity Partners Pty Limited (No 4) [2014] FCA 796 (1 August 2014)

PRACTICE AND PROCEDURE – subpoenae – legal professional privilege – advice privilege – common law principles – whether communications made for the dominant purpose of legal advice – communications made by or disseminated to third party non-legal advisers – distinction between legal advice and commercial, financial or other advice

Wilson v Mitchell (No 2) [2014] VSC 332 (8 July 2014)

EVIDENCE – Appeal from Magistrates’ Court decision to release documents – Client legal privilege – Exceptions for documents produced in the furtherance of a fraud – Hearsay – Whether open to conclude that it would result in undue expense or delay to call author of hearsay evidence on bar table assertion that author lived in Malaysia – Admissions – Evidence Act 2008 ss, 64, 75, 118 and 125.

Sprayworx Pty Ltd v Homag Pty Ltd [2014] NSWSC 833 (24 June 2014)

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 PROCEEDURE – Inspection of documents held on court file – application for confidentiality order – whether appellant would be seriously compromised or adversely affected if intervener not prevented from inspecting and/or copying the relevant documents – application for confidentiality order refused – Supreme Court (General Civil Procedure Rules) 2005, r 28.05.

Ubertini v Saeco International Group SpA (No 4) [2014] VSC 47 (18 March 2014)

CORPORATIONS – Oppression – compulsory acquisition of minority shareholdings – parent company majority shareholder in subsidiary – demands for payment by parent company – non-supply of new range of stock to subsidiary – alleged failure or refusal by parent company to fill stock orders of subsidiary – appointment of administrators to subsidiary by parent company’s nominee directors on board of subsidiary – charging of penalty interest by parent company on outstanding debts of subsidiary – whether deliberate course of conduct by parent company to remove minority shareholder of subsidiary from management and acquire minority shareholdings in subsidiary without payment – whether parent company’s nominee directors on board of subsidiary failed to properly assist subsidiary – whether conduct of parent company contrary to the interests of members of subsidiary as a whole, or oppressive to, unfairly prejudicial to or unfairly discriminatory against minority shareholders of subsidiary – applicable legal principles – whether conduct of parent company conduct in the affairs of the subsidiary – prevention of board meetings – whether unauthorised transfer of funds, related party transfers and improper incurring of adviser fees by minority shareholder of subsidiary – whether alleged conduct of minority shareholder oppressive conduct – whether alleged failure by minority shareholder to cause subsidiary to pay debts to parent company oppressive conduct – whether oppressive conduct of minority shareholder should disentitle relief sought – Corporations Act 2001 (Cth), ss 53, 232, 233.

Australian Mud Company Pty Ltd v Coretell Pty Ltd [2014] FCA 200 (13 March 2014)

PRIVILEGE – admissibility of evidence – patent attorney/client privilege – relationship to legal advice privilege – scope of advice privilege – waiver – admissibility of evidence of communications between patent attorney and client – where discovery and inspection given of documents recording such communications – where no claim for patent attorney/client privilege made in respect of such documents – whether such documents privileged from production – whether production of such documents voluntary – whether other evidence of communications between patent attorney and client privileged and therefore inadmissible by reason of s 200 of the Patents Act 1990 (Cth) and s 118 of the Evidence Act 1995 (Cth) – whether such privilege waived by voluntary disclosure of related documents – scope of waiver

PATENTS – patent attorney/client privilege – relationship to legal advice privilege – scope of advice privilege

Sexton v Homer [2013] NSWCA 414 (5 December 2013)

APPEAL – challenge to findings of fact – challenge to contingent finding of contributory negligence – retrial required

EVIDENCE – client legal privilege – whether statement of defendant obtained by investigator for use by insurer is privileged – whether trial judge correctly assessed dominant purpose of statement – whether document a confidential communication – Evidence Act 1995 (NSW), ss 117, 118

NEGLIGENCE – motorcycle accident – damages agreed – whether question of liability was correctly determined – trial judge reasons do not record process of resolving disputed facts – erroneous fact-finding process

Hannaford v The Royal Society for the Prevention of Cruelty to Animals NSW [2013] NSWSC 1708 (21 November 2013)

PROCEDURE – notice of motion – legal professional privilege – documents – s 118, s 119 Evidence Act – whether documents disclosed – some documents not confidential – whether solicitor’ and counsel independent – dominant purpose – waiver – waiver established – s 122 Evidence Act does not apply – orders

EVIDENCE – privilege – legal professional privilege – privileged claimed under s 118 and s 119 of Evidence Act

Asahi Holdings (Australia) Pty Ltd v Pacific Equity Partners Pty Limited [2013] FCA 998 (3 October 2013)

PRACTICE AND PROCEDURE – claim of privilege by certain respondents over communications with legal and financial advisers in connection with sale of shares in second applicant to first applicant – where legal and financial advisers also retained by, and provided advice to, second applicant – whether second applicant entitled to share jointly in privilege claim over relevant communications – whether certain respondents entitled to claim privilege over relevant communications to the exclusion of second respondent – whether process employed for determining privilege and evidence given in support sufficient to sustain claim of privilege

Hancock & Anor v Rinehart & Ors [2013] NSWSC 1402 (23 September 2013)

[PRIVILEGE] – documents produced in answer to subpoena served on accountants who had provided accounting advice to trustee that included reference to legal advice – where issues include trustee’s state of mind and specific beliefs at time of sending letter the subject of claims for trustee’s removal – whether privilege waived

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

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).

Matthews v SPI Electricity Pty Ltd & Ors (No 6) [2013] VSC 422 (15 August 2013)

PRACTICE AND PROCEDURE – Call for production of documents in the course of crossexamination at trial – Whether documents within the call – Whether documents produced the subject of client legal privilege – Dominant purpose test – Whether leave to crossexamine deponent should be granted – Leave granted on limited basis – rule 40.04 of the Supreme Court (General Civil Procedure) Rules 2005 – Evidence Act 2008 (Vic) ss 45, 118, 119 and 131A.

Zmak v TCB Trans Pty Ltd [2013] VSC 310 (17 June 2013)

ADMINISTRATIVE LAW – Judicial review – Occupational Health and Safety prosecution – Committal proceedings – Witness summons – Summons to produce documents – Legitimate forensic purpose – Legal professional privilege – Certiorari – Whether decision in course of committal proceeding amenable to certiorari – Occupational Health and Safety Act 2004, ss 21 and 132.

Aouad v R; El-Zayet v R [2013] NSWSC 760 (14 June 2013)

EVIDENCE – client legal privilege – internal document handed up in court to confirm decision of no further proceedings (s 7(2)(b) Director of Public Prosecutions Act 1986 (NSW)) – whether document privileged under s 118 and s 119 of Evidence Act 1995 (NSW) – whether Director of Public Prosecutions is “client” and Deputy Director is “Australian lawyer” – whether client legal privilege waived by act of Crown Prosecutor handing document up in court to be filed with the court file – whether consent imputed to client – whether court functus officio at time of handing up of document

Tabcorp Holdings Ltd v State of Victoria [2013] VSC 302 (13 June 2013)

EVIDENCE – Privilege – Legal professional privilege – Adequacy of evidence in support of claim.

EVIDENCE – Privilege – Legal professional privilege – documents and communications with third parties – Evidence Act 2008 (Vic) s 118.

EVIDENCE – Privilege – Joint privilege – Evidence Act 2008 (Vic) s 124.

EVIDENCE – Privilege – Waiver of privilege.

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

Traderight (NSW) Pty Ltd (ACN 108 880 968) v Bank of Queensland Limited (ACN 009 656 740) (No 16) and 13 related matters [2013] NSWSC 418 (26 April 2013)

EVIDENCE – privilege – client legal privilege – whether an adequate description of documents, over which privilege is claimed, has been provided – Uniform Civil Procedure Rules 2005 (NSW) rr 21.3 and 21.4 – whether privilege properly claimed – inspection of privileged material – DISCOVERY – relevance – Uniform Civil Procedure Rules 2005 (NSW) r 21.1(2).

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

Danne v The Coroner [2012] VSC 454 (2 October 2012)

ADMINISTRATIVE LAW – Hearing rule of natural justice – Legal professional privilege – Whether a coroner is authorised to provide material to an interested party on condition that a copy of any report prepared for that party on that material be provided to the coroner – Such a condition undermines the hearing rule of natural justice and legal professional privilege and is invalid.

CORONERS COURT – Power of a coroner to impose conditions on the provision of material to an interested party – Whether a tissue sample taken from a body remains part of the body – Whether a coroner has control over the tissue sample – Whether legal professional privilege under the common law or under the Evidence Act 2008 applies – Coroners Act 2008 ss 22, 28, 47, 49, 56, 58, 62, 66, 67, 114, 115 and the definition of ‘body’ in s 3(1) – Human Tissue Act 1982 ss 27, 29, 30, 33; Evidence Act 2008 ss 118, 119, 131A.

A J Lucas Operations Pty Ltd v CPW Trailer Sales & Repairs Pty Ltd [2012] NSWSC 1052 (10 September 2012)

PROCEDURE – claim of conversion and detinue – discovery – application by plaintiff to cross-examine third defendant in relation to alleged insufficient discovery – application by defendants for discovery of documents – claim of legal professional privilege by plaintiff – application to file cross-claim – HELD – grant plaintiff’s application to cross-examine third defendant – grant defendants’ application for discovery – grant application to file cross-claim

Wilson & Anor v Harrison & Anor [2012] VSC 404 (7 September 2012)

JUDICIAL REVIEW – Review of ruling of magistrate holding that notes made between lawyers for a party and a witness were subject to legal professional privilege – Notes produced before hearing for judicial review – Issue in question moot – Relief sought in respect of magistrate’s ruling not granted – Further application to amend originating motion to seek order prohibiting the hearing of the Magistrates’ Court prosecution until assurances made by prosecutor of compliance with duty of disclosure – Relief sought not within Court’s supervisory jurisdiction – Application to amend dismissed.

Melrose Cranes and Rigging Pty Ltd v. Manitowoc Crane Group Australia Pty Ltd [2012] NSWSC 904 (17 August 2012)

PRIVILEGE – fire causing damage to crane – crane owner sues company responsible for sales and service – seller serves subpoenas to produce documents on three non-party respondent incident investigators – owners insurer claims litigation privilege or in the alternative advice privilege – HELD – documents protected from disclosure by litigation privilege – WAIVER – seller claims owners insurer by its conduct waived privilege – HELD – privilege not waived

McKenna bhnf Upton v Australian Capital Territory and Others [2012] ACTSC 115 (27 July 2012)

PROCEDURE – discovery and interrogatories – whether witness statements form part of an investigator’s report – witness statements were obtained at the same time and prepared by the same person as the investigator’s report – witness statements are the basis for the investigator’s report – found that the witness statements are part of the investigator’s report

Evidence Act 2011 (ACT), s 118

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

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

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

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

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).

In the matter of Creditors Trust Deed Established in the Administration of Bevillesta Pty Ltd [2011] NSWSC 1419 (25 November 2011)

PROCEDURE – civil – privilege – common interest privilege – communication between administrators’ lawyers and former lawyers of company in administration relating to litigation brought by plaintiff against company- anticipated proceedings by plaintiff if its proof of debt rejected – raise same issues – administrators and company have common interest in relation to proceedings

Newtronics Pty Ltd (in liq) v Gjergja & Ors [2011] VSC 594 (23 November 2011)

EVIDENCE ― Client legal privilege ― Loss or waiver of privilege ― Delivery of bill of costs for party/party taxation ― Descriptions by item of charges and disbursements ― Whether description is privileged as revealing confidential communication ― Sufficiency of evidence establishing privilege in description ― Whether revelation of description and delivery of bill amounts to waiver of putative privilege ― Waiver for limited purpose ― Whether disclosure occurred by “compulsion of law “under taxation process ― Evidence Act No 47 of 2008 (Vic), s 118, 119, 122(3), (5).

Dura (Australia) Constructions Pty Ltd v Hue Boutique Living Pty Ltd (formerly SC Land Richmond Pty Ltd) & Ors [2011] VSC 406 (26 August 2011)

Client legal privilege – subpoenas

19 The plaintiff submitted that the initial response to progress payment claims was merely contract administration and fell within the ambit of administration of the trust. However, in light of the transmission of 5 May 2006 it is not possible to characterise the resolution of the claims as anything other than an anticipated or pending Australian proceeding. Albeit that by virtue of s 4, the Evidence Act applies to all proceedings in a Victorian court as defined by the dictionary, s 9 sets out that the Evidence Act does not affect the operation of common law “except so far as this Act provides otherwise expressly or by necessary intendment.” Accordingly, I am not constrained to conclude that disputes with respect to progress claims not heard in a Victorian court are necessarily excluded from either the common law principles of legal professional privilege nor the statutory principles of client legal privilege.