Category Archives: s. 119

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

http://www.austlii.edu.au/au/cases/nsw/NSWSC/2014/833.html

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

Re Estate Pierobon Deceased [2014] NSWSC 387 (3 April 2014)

http://www.austlii.edu.au/au/cases/nsw/NSWSC/2014/387.html

SUCCESSION – Wills probate and administration – Testamentary instruments – “suspicious circumstances rule” – Evidence – Application to set aside subpoenas – Legitimate forensic purpose – application dismissed

EVIDENCE – Facts excluded from proof – On grounds of privilege – Legal profession – Probate – Statements of witnesses to execution of will not privileged. “Rule in Re Fuld” – Claim to privilege dismissed

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

http://www.austlii.edu.au/au/cases/vic/VSC/2014/47.html

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)

http://www.austlii.edu.au/au/cases/cth/FCA/2014/200.html

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

Matthews v SPI Electricity Pty Ltd & Ors (No 10) [2014] VSC 44 (21 February 2014)

http://www.austlii.edu.au/au/cases/vic/VSC/2014/44.html

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 plaintiff’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 131A of the Evidence Act 2008 (Vic) — Whether resultant waiver of privilege — No waiver — Maintenance of the privilege not inconsistent with deployment of the final report in the proceeding.

Baker v Paul [2013] NSWCA 426 (11 December 2013)

http://www.austlii.edu.au/au/cases/nsw/NSWCA/2013/426.html

CONTEMPT OF COURT – first respondent restrained by freezing order from using his assets other than for permitted purposes – first respondent’s assets defined to include assets of third respondent – separate order made restraining third respondent from disposing of its assets – first respondent applied moneys of third respondent for permitted purposes – whether orders unclear or ambiguous – whether first respondent knowingly interfered with administration of justice by assisting in breach of orders by third respondent

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

http://www.austlii.edu.au/au/cases/nsw/NSWSC/2013/1708.html

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

Matthews v SPI Electricity Pty Ltd & Ors (No 8) [2013] VSC 628 (19 November 2013)

http://www.austlii.edu.au/au/cases/vic/VSC/2013/628.html

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).

R v Gittany (No 3) [2013] NSWSC 1670 (13 November 2013)

http://www.austlii.edu.au/au/cases/nsw/NSWSC/2013/1670.html

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

Matthews v SPI Electricity Pty Ltd & Ors (No 7) [2013] VSC 553 (18 October 2013)

http://www.austlii.edu.au/au/cases/vic/VSC/2013/553.html

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.

Matthews v SPI Electricity Pty Ltd & Ors (Ruling No 30) [2013] VSC 547 (15 October 2013)

http://www.austlii.edu.au/au/cases/vic/VSC/2013/547.html

EVIDENCE – Privilege – Issue waiver – Documents recording communications between Plaintiff’s solicitors and witnesses – Internal communications of Plaintiff’s solicitors – Communications between Plaintiff’s solicitors and counsel – Evidence Act 2008 (Vic) ss 117, 119, 122, 138.

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

http://www.austlii.edu.au/au/cases/cth/FCA/2013/998.html

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)

http://www.austlii.edu.au/au/cases/nsw/NSWSC/2013/1402.html

[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)

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).

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

http://www.austlii.edu.au/au/cases/vic/VSC/2013/422.html

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)

http://www.austlii.edu.au/au/cases/vic/VSC/2013/310.html

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)

http://www.austlii.edu.au/au/cases/nsw/NSWSC/2013/760.html

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

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

http://www.austlii.edu.au/au/cases/nsw/NSWCA/2013/152.html

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

Matthews v SPI Electricity Pty Ltd & Anor (No 4) [2013] VSC 237 (8 May 2013)

http://www.austlii.edu.au/au/cases/vic/VSC/2013/237.html

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 .

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)

http://www.austlii.edu.au/au/cases/nsw/NSWSC/2013/418.html

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)

http://www.austlii.edu.au/au/cases/nsw/NSWSC/2013/212.html

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

Cleary v Rinaudo [2012] ACTCA 61 (21 December 2012)

http://www.austlii.edu.au/au/cases/act/ACTCA/2012/61.html

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.

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

http://www.austlii.edu.au/au/cases/vic/VSC/2012/454.html

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.

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

http://www.austlii.edu.au/cgi-bin/sinodisp/au/cases/vic/VSC/2012/404.html

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.

In the matter of Idylic Solutions Pty Ltd & ors – Australian Securities and Investments Commission v Hobbs [2012] NSWSC 581 (30 May 2012)

http://www.austlii.edu.au/au/cases/nsw/NSWSC/2012/581.html

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.

Domenico Rinaudo v Nicholas Morris Cleary [2012] ACTSC 5 (31 January 2012)

http://www.austlii.edu.au/au/cases/act/ACTSC/2012/5.html

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

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

http://www.austlii.edu.au/au/cases/cth/FCA/2012/29.html

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

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

http://www.austlii.edu.au/au/cases/nsw/NSWSC/2011/1419.html

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)

http://www.austlii.edu.au/au/cases/vic/VSC/2011/594.html

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)

http://www.austlii.edu.au/au/cases/vic/VSC/2011/406.html

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.

Dura (Australia) Constructions Pty Ltd v Hue Boutique Living Pty Ltd [2011] VSC 477 (23 September 2011)

http://www.austlii.edu.au/au/cases/vic/VSC/2011/477.html

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) [2011] VSC 16 – Evidence Act 2008 (Vic) ss 118, 119 .

Australian Securities and Investments Commission v Australian Lending Centre Pty Ltd (No 2) [2011] FCA 1057 (12 September 2011)

http://www.austlii.edu.au/au/cases/cth/FCA/2011/1057.html

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)

Ingot Capital Investments Pty Ltd and Ors v Macquarie Equity Capital Markets Limited and Ors [2004] NSWSC 40 (10 February 2004)

http://www.austlii.edu.au/au/cases/nsw/NSWSC/2004/40.html

[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.

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.

Powercor Australia Ltd v Perry & Anor [2011] VSCA 239 (19 August 2011)

http://www.austlii.edu.au/au/cases/vic/VSCA/2011/239.html

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

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

http://www.austlii.edu.au/au/cases/vic/VSC/2011/308.html

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)

http://www.austlii.edu.au/au/cases/vic/VSC/2011/269.html

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.