Further Evidence - from 05/09/24

Question 1

What is the consequence of lack of confidentiality for privilege?

Answer 1

Privilege does not attach to documents destined for public domain (wills, conveyancing instruments) but advice for this is different.

Question 2

What are the intricacies of dominant purpose?

Answer 2

> must be for getting or giving legal advice;
means more than substantial;
may need to examine intentions of communicator where disputed, subjective evidence is relevant but not conclusive
where retainer exists, is prima facie evidence to conclude legal advice is for dominant purpose
for documents, purpose at time of creation is decisive

Question 3

What does “getting or giving legal advice” mean for the dominant purpose test?

Answer 3

• Not just explaining the law but includes telling a client what they prudently should do/not do
• Does not include commercial guidance or PR advice

-A statement in a conversation between lawyer and client will not be privileged if no giving of legal advice.

Question 4

Can a lawyer’s own perceptions or real evidence be the subject of legal professional privilege?

Answer 4

No physical objects cannot be the subject of lawyer professional privilege, nor can a lawyer’s own perception (i.e. in forgery case lawyer asked; ‘did the document bear this mark when you saw it?’

Question 5

What are two examples of lawyer professional privilege being protected?

Answer 5

If it unlawfully or deceptively obtained, or escapes a client without their consent, can be protected from disclosure if application made prior to it entering evidence or the public domain.

Entitlement to protect privileged information is a reasonable excuse for refusing to comply with a search warrant.

Question 6

Does lawyer professional privilege exist where client wants advice for unlawful purpose?

Answer 6

No, civil, criminal, defeating purpose of legislation will preclude legal professional privilege.

Question 7

Can the Crown claim legal professional privilege?

Answer 7

Yeh they can, being another litigant, but cannot be used to avoid disclosure.

Question 8

What’s the go with legal professional privilege when client sues lawyer?

Answer 8

It is put aside insofar as necessary for the lawyer’s defence (can be called natural justice or implied waiver)

Question 9

What is the duration of legal professional privilege?

Answer 9

for a natural person, life, and beyond

Question 10

What is the “without prejudice” rule?

Answer 10

Rule of evidence, only available in curial proceedings, that bars its use, if bona fide attempt to settle current, or anticipate litigation.

Question 11

Can perceptions be protected by “without prejudice” label?

Answer 11

No, if a party names a potential witness in negotiation, other side can interview them.

Question 12

Do the words “without prejudice” need to actually be used to give rise to the protection?

Answer 12

No, not essential if the conduct and words show it was intended to be such; substance over form

Question 13

What is the consequence of “without prejudice” if there is no legal dispute?

Answer 13

Has no purpose and cannot be used to bar admissible evidence (very cheeky) e.g. disputed issue whether insurer honour claim and their letter had phrase “without prejudice” to try to bar the other side from adduce it.

Cannot be abused; to oppress party or mislead court.

Question 14

What is the extent to which “without prejudice” applies?

Answer 14

Only to part of a dispute that is being negotiated and can be waived by express, or implied assent of all parties.

Question 15

What happens if an agreement is ratified through “without prejudice” communications but not honoured?

Answer 15

The protection no longer applies.

Question 16

What the fuck is estoppel, generally?

Answer 16

Collection of disparate rules that excludes otherwise admissible evidence because of relationship or course of dealing between the parties.

Question 17

What are the four main types of estoppel?

Answer 17

Res judicata / estoppel by record.

Anshun estoppel - res judicata overlap

Estoppel by deed or contract

Estoppel by representation

Question 18

What is the essence of res judicata?

Answer 18

cannot relitigate issue already decided by competent court.

Question 19

How does res judicata affect Judgements by;
consent;
default;

Answer 19

Still applies for both judgements by consent and default. However where default, only the issue of liability is estopped, not contest as to quantum of damages?

Question 20

Can certain what situations avoid res judicata?

Answer 20

Cannot be avoided by splitting causes of action (i.e. debt action that overlaps with contract breach, etc)

Question 21

How does court position in court hierachy affect res judicata?

Answer 21

Doesn’t matter; Judgement of Mag court can bar proceedings in Supp Court and can based on decision of admin tribunal or commercial arbitrator.

Question 22

How does res judicata exist in crim law?

Answer 22

Autre fois convict and autre fois acquit and acquittal bars the proof of facts inconsistent with a verdict in later cim proceedings

Question 23

Are there cases where res judicata does not apply?

Answer 23

There are special cases like;

bankruptcy, debtor challenges judgement on which creditor’s petition is based

Judgement obtained by fraud can be challenged in original action in equity, rather than appeal

Question 24

What is partial res judicata or issue estoppel?

Answer 24

Analogue to res judicata; where part of an issue decided in former action arises in subsequent action.

Confined to civil proceedings.

Question 25

Do you need to plead estoppel to rely upon it?

Answer 25

You should, however absence of pleading it not fatal.

Question 26

How is issue estoppel established?

Answer 26

(a) Issue was exactly the same
(b) Previous final judgment on the merits
(c) Issue was ultimate, not merely evidential
(d) Parties where the same, suded in same capacity
(e) Issue was necessarily decided, distinct to obiter/judicial opinion
* If first case tried by jury, whether issue determined may be hard to discern
* Judgement in default or appearance, or defence is treated as judgment on merits but not dismissal for failure to disclose cause of action

Question 27

What is Anshun estoppel?

Answer 27

• Aside from res judicata; could an action been ventilated in an earlier proceeding, court can estop this
• Referred to as res judicata in the wide sense and exists to stop abuse of process, inconsistent decisions and inefficient use of court time
• Question of whether separate actions could reasonably have been joined
  o Not reasonable to expect a person in position to settle a minor court claim to delay and complicated it by including allegations of unconscionable and misleading and deceptive

Question 28

What is estoppel by deed or contract?

Answer 28

• In civil proceedings parties can vary/waiver rules of evidence and despite whatever reality is, can concede matters
• A written contact clause, excluding any other term, can create estoppel by contract; evidence contradicting this agreement is normally inadmissible

Question 29

What is estoppel by representation by fact?

Answer 29

• A reasonably relies on B’s representation of a fact, or B’s promise (explicit or implied) for future contact, A would suffer is B resiles, A can claim common law/equitable estoppel
• Sometimes referred to as promissory estoppel (for promises) but distinction not vital
• Does not give rise to proprietary interests; prevents party bound by it from departing from representations

Question 30

What are the essentials of representational estoppel?

Answer 30

1. Express or implicit representation of fact or future conduct
    Must be clear and unequivocal
2. On which the representator intends the representee to act
3. There is reasonable reliance on that; and
    Onus on person claiming estoppel to establish this and detriment
    Cannot be reasonable reliance on patently incredible or facetious statement or promise that the hearer should know cannot be true or fulfilled or flimsy
    Conditional promise may give rise to a proprietary estoppel or estoppel by encouragement
    Self induced belief is immaterial
4. Would be a potential detriment to the representee if representor permitted to resile
    Claimnant must show causal connection between reliance and detriment
    Need not be quantified in money; can be life-changing decisions