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
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).
CRIME – evidence – where accused served notice of intention to call evidence that deceased had a tendency to act in a particular way – call by Crown for production of any statements taken by solicitor for accused from persons identified in notice – whether client legal privilege lost upon service of notice – whether client legal privilege lost upon calling witnesses to give evidence in the case for the accused
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.
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
[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
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).
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.
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.
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
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.
EVIDENCE – production of documents – application to be excused from producing documents – client legal privilege – police seeking advice from internal Operational Legal Advice Unit – whether advice provided by lawyer – whether pending or anticipated proceeding – Commissioner excused from production
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 .
PROCEDURE – claim of privilege over documents disclosed – whether documents such as to attract privilege – whether bank waived privilege – legitimate forensic purpose – whether scope of subpoena to produce too broad
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
APPEAL – application for leave to appeal – appeal from interlocutory order – interpretation of Civil Law (Wrongs) Act 2002 (ACT) ch 5 – whether ch 5 continues to apply after originating process filed – extent of statutory abrogation of common law privilege – where only quantum at issue in Supreme Court proceedings – where clarity in the Court of Appeal resolving the issue would be of substantial benefit to litigants – where prejudice to the respondent able to be ameliorated by costs order – leave granted.
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.
PRACTICE AND PROCEDURE – subpoena to non party – claim for legal professional privilege and common interest privilege – onus of establishing matters relevant to either claim – whether either claim made out
PRACTICE AND PROCEDURE – subpoena to non party – claim for legal professional privilege and common interest privilege – onus of establishing matters relevant to either claim – whether either claim made out
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.
CASE MANAGEMENT – interlocutory applications regarding affidavit evidence, vacation of the hearing date and request for a referral for pro bono legal assistance – HELD – application to vacate dismissed but commencement date deferred – limited order for pro bono assistance – other applications dismissed.
PRACTICE AND PROCEDURE – personal injury action – provision of medical reports by defendant to plaintiff – Civil Law (Wrongs) Act 2002, ch 5- whether of continuing application after commencement of court proceedings
STATUTES – Civil law (Wrongs) Act 2002 – disclosure of medical reports under ch 5 – whether obligation continues after commencement of court proceedings
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
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
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).
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.
PRACTICE AND PROCEDURE – Legal advice privilege – Litigation privilege – Joint legal privilege – No joint advice or legal privilege found – Definition of ‘Australia or overseas proceeding’ and ‘Australian Court’ under the Evidence Act 2008 (Vic) – Krok v Szaintop Homes Pty Ltd (No 1)  VSC 16 – Evidence Act 2008 (Vic) ss 118, 119 .
PRACTICE AND PROCEDURE – Privilege – application for production of documents disclosed on discovery over which claim for legal professional privilege made – confidentiality – dominant purpose for which documents created
Australian Securities and Investments Commission Act 2001 (Cth) s 127
Evidence Act 1995 (Cth) ss 117, 118, 119, 131A
Evidence Act 1995 (NSW) ss 117, 118, 119, 131A
Evidence Act 2008 (VIC)
Evidence Amendment (Journalists’ Privilege) Act 2007 (Cth)
Evidence Amendment Act 2007 (NSW)
[Client Legal Privilege] – Motion for access to documentsproduced on subpoena – Objection to access on ground that documents consisting of pleadings, affidavits and particulars filed and served in other proceedings are privileged and were filed and served under compulsion of law (s.122 (2) (c) – Claim that pleadings and/or affidavits are not privileged so that s122 (2) (c) does not apply – Alternative application for access pursuant to Part 65 rule 7 and Practice Note 97.
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.
PRACTICE AND PROCEDURE – Leave to appeal – Interlocutory order – Legal professional privilege – Whether judge erred in finding documents were not prepared for the dominant purpose of providing legal advice – Whether CEO’s purpose is of central relevance to assessment of dominant purpose – Whether applicant’s failure to call CEO at hearing could be regarded as significant – Application refused
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 .
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.
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.
PRACTICE AND PROCEDURE – Legal Professional Privilege – Claim by injured worker – Appeal from order by Magistrates’ Court to provide copy of medical report – Whether Magistrate compelled to find that dominant purpose of obtaining report was for legal advice – Self-insurer appointing agent to carry out its functions – Whether s.104B(2)(g) of Accident Compensation Act 1985 abrogated legal professional privilege.
DISCOVERY AND INSPECTION – Litigation privilege – Claim for indemnity under insurance policy – Appointment of assessor by insurer – Whether litigation was contemplated – Whether contemplation of litigation accounts for documents having been made – Question of fact – Test to be applied – Order for inspection made.
25 What does the law look to in an application such as this?
26 We are here concerned with the aspect of professional privilege known as litigation privilege. The law will regard as privileged from production the confidential communications that pass between the defendant and third parties that are made for the dominant, if not sole, use in litigation that is then existing or might reasonably be expected, anticipated or reasonably in contemplation: see Esso Australia v FCT and see s 119 Evidence Act 2008 (Vic). The underlying rationale of the common law of legal profession privilege was stated in Baker v Campbell and reaffirmed in Esso Australia Resources and FCT. That is, a person is entitled to seek legal advice in the conduct of his affairs and legal assistance for the purpose of conducting actual or anticipated litigation without being prejudiced by having to disclose those communication But against that, there lies the policy and the desirability in the interests of justice in obtaining access to the facts relevant to the issues in order to get to the truth of the matter. Thus, claims for privilege ought to be carefully examined to ensure the integrity of the discovery process.
27 Thus, there are two questions to be asked. First, was litigation either pending or in contemplation? Secondly, did the communication or documentation come into existence for use in or in relation to pending or contemplated litigation? These are questions of fact.
BANKRUPTCY – sequestration – whether order should have been made – judgment entered pursuant to terms of settlement – application to set aside unsuccessful – appeal from that judgment dismissed – applicant wishing to pursue application for special leave to appeal to High Court – whether federal magistrate bound to decline to make sequestration order until all avenues of appeal exhausted – whether exercise of discretion miscarried
APPEAL AND NEW TRIAL – application for leave to appeal out of time – whether special reasons – whether adequate explanation of delay – whether absence of prejudice from delay – whether sufficient prospect of success on appeal
EVIDENCE – affidavit – affidavits filed and relied on – claim to legal professional privilege as to exhibits – whether partial waiver of privilege possible – whether affidavits and their exhibits should be available for inspection
Evidence Act 1995 (Cth) ss 119, 122, 122(1), 122(2), 122(3)