Category Archives: s. 121

Gillett v Nelson [2014] NSWSC 115 (25 February 2014)

http://www.austlii.edu.au/au/cases/nsw/NSWSC/2014/115.html

EVIDENCE – client legal privilege – loss of privilege – whether for purposes of s121(1) Evidence Act 1995 deceased person is “a client or party who has died”

EVIDENCE – client legal privilege – loss of privilege – whether for purposes of s122(2) Evidence Act 1995 client or party acted inconsistently with objecting to disclosure of draft legal advice – advice referred to in evidence – whether for the purposes of s122(3) Evidence Act 1995 client or party knowingly and voluntarily disclosed the substance of draft legal advice – content of advice not referred to

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

Liu v Fairfax Media Publications Pty Ltd [2012] NSWSC 1352 (9 November 2012)

http://www.austlii.edu.au/au/cases/nsw/NSWSC/2012/1352.html

APPEAL – interlocutory decision of Associate Judge – practice and procedure – defamation – production of evidence of settlement negotiations – scope of statutory exclusion in s 131(1) of the Evidence Act – whether restricted to excluding admissions – scope of s 131(5)(b) of the Evidence Act – whether negotiations concern criminal proceedings – whether negotiations affect the right of a person – scope of s 131(2)(i) of the Evidence Act .

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

d’Apice v Gutkovich – Estate of Abraham (No . 1) [2010] NSWSC 1336 (27 October 2010)

http://www.austlii.edu.au/au/cases/nsw/NSWSC/2010/1336.html

PROCEDURE – privilege – where proceedings concern testamentary capacity of deceased – where documents sought under subpoena addressed to deceased’s lawyer who is also lawyer for plaintiff seeking probate – where documents prima facie privileged under Evidence Act 1995 , s 119 or common law – application of Uniform Civil Procedure Rules, r 1.9 and Evidence Act to inspection of documents – whether Evidence Act , s 121 precludes privilege claim – whether deceased is “a client” for s 121 – whether privilege waived under Evidence Act , ss 122 or 126

Evidence Act 1995 (NSW)

Director-General, Department of Community Services; Re Sophie [2008] NSWSC 1268 (3 November 2008)

[2008] NSWSC 1268

EVIDENCE – CHILDREN – admissibility of report on third defendant child prepared by medical professional – whether report prepared pursuant to (NSW) Children and Young Persons (Care and Protection) Act 1998, s 27 – whether report excluded by (VIC) Evidence Act 1958, s 28 or (NSW) Children and Young Persons (Care and Protection) Act 1998, s29

(NSW) Evidence Act 1995, ss 121(2), 119

Dubbo City Council v Patrick Joseph Barrett [2003] NSWCA 267 (24 September 2003)

[2003] NSWCA 267

The respondent was injured at Dubbo cattle saleyards, which are operated by the appellant. He commenced an action against his employers, Elders and the Council. The respondent and Elders settled. The appellant then called for production of the medical reports served by Elders on the respondent. The Plaintiff claimed legal privilege and would only produce them if ordered to do so by the Court. The trial judge held that the documents were privileged.

EVIDENCE – ss 121, 122 Evidence Act 1995 – privilege – whether privilege waived when medical expert reports served – when is privilege waived? Obligations under SCR Pt 36(13) and (13A)

R v Bell; Ex parte Lees [1980] HCA 26; (1980) 146 CLR 141 (5 August 1980)

[1980] HCA 26

Practice – Discovery – Legal professional privilege – Communication of address by client to solicitor – Whether privileged.

Infants and Children – Family Court of Australia – Custody of child of a marriage – Grant of interim custody to husband – Refusal by wife to deliver child – Concealment of child – Refusal by wife’s solicitor to disclose her address – Solicitor not party to any action – Whether compellable to disclose address – Family Law Act 1975 (Cth), ss. 70(6)*, 114(3)*. (1980) 146 C.L.R. at p. 147. (1980) 146 C.L.R. at p. 147.

Sugden v Sugden [2007] NSWCA 312 (1 November 2007)

[2007] NSWCA 312

PROCEDURE – Production of documents on subpoena – Appellant (father of respondent) gives instructions on behalf of respondent to respondent’s solicitor –Whether solicitor’s file notes of those instructions are “privileged documents” – Where investigator retained by solicitor for respondent takes draft statement from appellant – Where draft statement later settled in conference by counsel for respondent – Whether draft statement is a “privileged document” – Where appellant on own account instructs solicitor in relation to police inquiries – Whether file notes of those instructions are “privileged documents”.
EVIDENCE – Client legal privilege – Whether file notes and settled draft statement record confidential communications – Whether in any event file notes and settled draft statement are confidential documents.
EVIDENCE – Loss of client legal privilege – Related communications and documents – “Proper understanding” – Question, whether one document, is “reasonably necessary to enable a proper understanding” of another document, to be answered taking into account circumstances in which and purposes for which that “proper understanding” is required and other information available.

Dubbo City Council v Patrick Joseph Barrett [2003] NSWCA 267 (24 September 2003)

[2003] NSWCA 267

The respondent was injured at Dubbo cattle saleyards, which are operated by the appellant. He commenced an action against his employers, Elders and the Council. The respondent and Elders settled. The appellant then called for production of the medical reports served by Elders on the respondent. The Plaintiff claimed legal privilege and would only produce them if ordered to do so by the Court. The trial judge held that the documents were privileged.

EVIDENCE – ss 121, 122  Evidence Act 1995  – privilege – whether privilege waived when medical expert reports served – when is privilege waived? Obligations under SCR Pt 36(13) and (13A)

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

MENTAL HEALTH

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

BT Australasia Pty Ltd v New South Wales & Telstra Corp Ltd (Judgment no. 8) [1998] FCA 295 (1 April 1998)

[1998] FCA 295

EVIDENCE – client legal privilege – loss of privilege – whether substance of confidential communication was disclosed – whether holder of privilege impliedly consented to disclosure of confidential communication – whether disclosure of confidential communication was inadvertent.

Evidence Act 1995  (Cth), ss 121, 122, 126

In the matter of Strikers Management Pty Ltd; Australian Securities Commission v Peter Dimitri [1997] FCA 1434 (18 November 1997)

[1997] FCA 1434

EVIDENCE ) discovery – claim of legal professional privilege – whether documents should be made available for inspection – whether documents can be said to relate to communications in furtherance (on the client’s part) of an attempt to evade the requirements of an undertaking to the Court – if documents may reasonably be held to be of that kind, inspection on discovery held to be appropriate – discussion of s 121(2) of the  Evidence Act 1995  .

Green v AMP Life [2005] NSWSC 95 (16 February 2005)

[2005] NSWSC 95

EVIDENCE – facts excluded from proof – client legal privilege – whether copies of documents not themselves privileged which are provided to a solicitor for the purpose of obtaining advice are privileged under  Evidence Act 1995  – whether drafts of transaction documents prepared by a solicitor are privileged under Evidence Act 1995 – exception to privilege in section 121(3)  Evidence Act 1995  concerning “a communication or document that affects a right of a person”

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,

KC & Ors v Shiley Inc & Anor [1997] FCA 617 (11 July 1997)

 [1997] FCA 617

EVIDENCE – privilege – application for access to subpoenaed documents – legal professional privilege – principles relating to implied waiver of privilege – whether privilege waived – whether state of mind put in issue – whether disclosure of substance of legal advice – whether fairness requires waiver of privilege – client legal privilege – application of  Evidence Act 1995  (Cth) to preliminary procedures – whether privileged communication affects the rights of a person – whether knowing or voluntary disclosure of the substance of the advice – whether advice relevant to determining liability for costs

Evidence Act 1995  (Cth), ss 118, 119, 121, 122, 131