Confidentiality & Privilege

Question 1

s 117

Evidence Act 1995 (NSW)

Answer 1

Definitions:
confidential communication means a communication made in such circumstances that, when it was made—
(a) the person who made it, or
(b) the person to whom it was made,
was under an express or implied obligation not to disclose its contents, whether or not the obligation arises under law.

confidential document –> same as above

Question 2

s 118

Evidence Act 1995 (NSW)

Answer 2

Advice Privilege –> evidence must NOT be adduced if it will disclose communications…
“for the dominant purpose of the lawyer or one or more of the lawyers, providing legal advice to the clients.”

Question 3

s 119

Evidence Act 1995 (NSW)

Answer 3

Litigation Privilege –> evidence must NOT be adduced if it will disclose communications…
“for the dominant purpose” of conducting litigation.

Question 4

s 120

Evidence Act 1995 (NSW)

Answer 4

Unrepresented Parties –> evidence not to be adduced if it will disclose material used by the unrepresented party to prepare for or conduct proceedings.

Question 5

Southern Cross Commodities Pty Ltd (in liq) v Crinis [1984] VR 697 at 702 per Young CJ

Answer 5

the court can’t abrogate privilege through judicial discretion

Question 6

R v Bell (1980) 146 CLR 141

Answer 6

privilege does not protect communications directed against the public interest

Question 7

Esso Australia Resources Ltd v Federal Commissioner of Taxation (1999) 201 CLR 49

Answer 7

In a 4-2 majority, the court ousted the “sole purpose” test from Grant v Downs because it was “extraordinarily narrow” and established the “dominant purpose” test now espoused in the Evidence Act 1995 (NSW) s 118 & s 119.

Question 8

Legal Profession Uniform (Solicitor’s) Conduct Rules 2015 (NSW)
r.9

Answer 8

Confidentiality

9. 1 –> must not disclose confidential information!
10. 2 –> exceptions
11. 2.1 the client expressly or impliedly authorises disclosure,
12. 2.2 the solicitor is permitted or is compelled by law to disclose,
13. 2.3 discloses the info in a confidential setting, for the sole purpose of obtaining advice about legal or ethical obligations,
14. 2.4 prevent probable commission of a serious criminal offence,
15. 2.5 purpose of preventing imminent serious physical harm to the client or to another person, or
16. 2.6 the information is disclosed to the insurer of the solicitor, law practice or associated entity.