Part 3.10 - Privileges Flashcards
131A - Application of Part to preliminary proceedings of courts
131A(1)(a)-(b) This Part applies where person obliged to comply with disclosure requirement; if person objects, the court must determine the objection by applying the provisions of this Part (other than sections 123 – loss of CLP = accused and 128 – self-incrimination priv) with any necessary modifications as if the objection to giving information/producing the document were objection to giving/adducing of evidence.
(2) DR = (a) summons (b) pre-trial discovery (c) non-party discovery (d) interrogatories (e) notice to prod (f) request to prod 4.6 doc (g) search warrant
132 - Court to inform of rights to make applications and objections
If it appears to court that witness or party may have grounds for making an application or objection under a provision of this Part, the court must satisfy itself (if there is a jury, in the absence of the jury) that the witness or party is aware of the effect of that provision.
133 - Court may inspect etc. documents
If a question arises under this Part relating to document, court may order that the document be produced to it and may inspect the document for the purpose of determining the question
117 - Definitions
Client (a) client generally person/body who engages lawyer to provide legal services / who employs lawyer (including under K of service – ie, e’ment contract) (b) e’ees/agents of clients (c) employer if e’er is Cth/State/Terr body; (d) manager, comm’ee/person acting re unsound mind person (e) personal reps of dead client (f) successor to rights/obligations of client, being rights/obs in respect of which confidential communication was made
Confidential communication = communication where, when it was made, (a) person who made it, OR (b) person to whom it was made, was under an obligation not to disclose its contents, whether obligation arises under law or otherwise (express or implied obligation).
Confidential document = document where, when it was prepared, (a) person who prepared it, OR (b) person from whom it was prepared, was under an obligation not to disclose its contents, whether obligation arises under law or otherwise (express or implied obligation).
Lawyer = (a) Oz lawyer (b)-(c) foreign lawyer (d) employees and agents of those lawyers
Party = includes (a) employee or agent of a party (b) unsound mind manager/committee/person (c) personal rep of party if party died (d) successor to rights/obligations of client, being rights/obs in respect of which confidential communication Was made
(2) reference in this Division to commission of act includes a reference to a failure to act.
118 - Legal Advice (always applies re: confidences between lawyer and client, even when proceedings on-foot)
ON objection by client, evidence not to be adduced if the court finds that adducing evidence would result in the disclosure of:
● (a) A confidential communication between a lawyer and a client
(whether first tele convo – litigation comprehended, on foot and in the running)
● (b) Confidential communication BW 2 or more lawyers acting for the client
(eg, barrister speaking w. colleague – two e’ee sollies conferring); or
● (c) Contents of a confidential document (whether delivered or not) prepared by the client, lawyer or another person
for dominant purpose of providing legal advice to client (equal purposes won’t suffice)
119 Litigation (not b/w client and lawyer, but client/lawyer and third/fourth parties)
ON objection by client, evidence not to be adduced if court finds that adducing the evidence would result in disclosure of:
● (a) A confidential communication between the client and another person or between a lawyer acting for the client and another person; or
● (b) Contents of confidential document (whether delivered or not) that was prepared -
For the dominant purpose of the client being provided with professional legal services relating to an Australian or OS proceeding or an anticipated or pending Australian or OS proceeding, in which the client is or may be or was or might have been, a party.
120 Unrepresented parties
(1) Evidence is not to be adduced if, on objection by a party who is self-represented, the court finds that adducing the evidence would result in disclosure of—
(a) a confidential communication between the party and another person; or
(b) the contents of a confidential document (whether delivered or not) that was
prepared, either by or at the direction or request of, the party—
for the dominant purpose of preparing for or conducting the proceeding.
121 Loss of client legal privilege - generally
This Division does not prevent the adducing of evidence where:
● (1) relevant to question concerning intentions, or competence in law, of client/party who has died.
● (2) Division does not prevent the adducing of evidence if, were the evidence not adduced, the court would be prevented, or it could reasonably be expected that the court would be prevented, from enforcing an order of an Australian court.
● (3) Division doesn’t prevent the adducing of evidence of a communication or document that affects a right of a person.
122 Loss of client legal privilege - consent and related matters
This division does not prevent the adducing of evidence where:
● (1) Consent is given by the client or party concerned (ie, the holder of the privilege)
● (2) If client or party has acted inconsistent with maintenance of the privilege
○ (3)(a) Eg, without limitation, if client/party knowingly and voluntarily disclosed the substance of the evidence to another person; or
○ (b) Substance of the evidence has been disclosed with the express or implied consent of the client or party
(4) Reference in subsection (3)(a) to a knowing and voluntary disclosure does not include a reference to a disclosure by a person who was, at the time of the disclosure, an employee or agent of the client or party or of a lawyer of the client or party unless the employee or agent was authorised by the client, party or lawyer to make the disclosure.
(5) Not taken to have acted in a manner inconsistent merely because:
■ (a) Substance of evidence has been disclosed:
● (i) In course of making confidential doc or comm
● (ii) As a result of duress or deception
● (iii) Under compulsion of law
● (iv) To the responsible minister if client/party is body established by Australian law
■ (b) Disclosure to another person if it concerns a matter where they share lawyer providing professional legal services
■ (c) Disclosure to person with common interest relating to the proceeding or an anticipated or pending proceeding in an Australian court or a foreign court.
(6) Division doesn’t prevent the adducing of evidence of a document that a witness has used to try to revive the witness’s memory about a fact or opinion or has used as mentioned in s 32 (Attempts to revive memory in court) or s 33 (Evidence given by po pos).
123 Loss of client legal privilege - accused
In criminal proceeding - Does not prevent accused from adducing evidence unless it is evidence of (a) confidential communication made between associated accused and lawyer acting for that person in connection with their prosecution, (b) confidential document prepared by an associated accused or their lawyer in connection with their prosecution.
NOTE s131A doesn’t apply to this section. So it would only be if A happened to somehow have that information.
124 Loss of client legal privilege - joint clients (think about the ethics here)
(1) section applies to civil proceedings only, in connection with which 2+ parties have, before commencement, jointly retained lawyer in relation to same matter.
(2) This Division does not prevent one of those parties from adducing evidence of
(a) a communication made by any one of them to the lawyer (b) document prepared by or at the direction or request of any one of them, In connection with the joint matter.
125 Loss of client legal privilege—misconduct
(1) Division does not prevent adducing of evidence of (a) comm made or document prepared by client/lawyer/both or by self-rep party, in furtherance of the commission of a fraud or offence or act that renders a person liable to a civil penalty OR
(b) a communication/document client/lawyer or party knew/ought reasonably to have known was made or prepared in furtherance of a deliberate abuse of power.
(2) (a)-(b) If xyz above is fact in issue and there are RG for finding the above, the Court may find that the communication was so made or the document so prepared.
(3) Power here means power conferred by/under an Australian law.
126 Loss of client legal privilege—related communications and documents
If, because of the application of ss 121, 122, 123, 124 or 125, this Division does not prevent the adducing of evidence of a communication or the contents of a document, those sections do not prevent the adducing of evidence of another communication or document if it is reasonably necessary to enable a proper understanding of the communication or document.
128 Privilege in respect of self-incrimination in other proceedings
(balancing: getting all the relevant evidence versus person should not be required to contribute to their own prosecution)
(1) 128 applies if W objects to giving evidence (globally or particularly) on grounds that evidence tends to prove W committed an (a) offence (Oz/Foreign) or (b) liable to civil penalty
(2) Court must determine whether there are RG for objection (at voir dire ideally)
(3) If Court determines RG exists, not to require witness to give evidence and is to inform W
(a) that W need not give evidence unless (4) requires it
(b) Court will give certificate if (i) witness willingly gives (ii) forced under (4)
(c) effect of such a certificate
(4) Court may require witness to give evidence if satisfied (a) evidence does not tend to prove that they have offended under foreign law / are CP liable under foreign law; and
(b) interests of justice require that the witness give evidence.
(5) if W willingly/forced to give evidence, court must cause witness to be given certificate
(6) Court must also give certificate if (a) objection has been overruled, (b) after the evidence has been given, the court finds that there were reasonable grounds for the objection.
(7) Effect = in proceedings in Vict. Court/body authorised to hear receive examine evidence
(a) evidence given by that W in respect of which the cert. was given, and (b) any evidence obtained directly or indirectly from person having given that evidence, cannot be used.
However, does not apply to a CP in respect of falsity of the evidence.
(8) Subsection (7) has effect despite any challenge, review, quashing or calling into question on any ground of the decision to give, or the validity of, the certificate concerned.
(9) If an accused in a CP for an offence is given a certificate under this section, subsection (7) does not apply in a proceeding that is a retrial of the accused for the same offence or a trial of the accused for an offence arising out of the same facts that gave rise to that offence.
(10) this section doesn’t apply to A giving evidence in CP, being evidence the A (a) did an act which is fact in issue or (b) had state of mind the existence of which is a fact in issue.
(11) Reference in this section to doing an act includes a reference to failing to act.
(12) -(14) SF.
130 Exclusion of evidence of matters of state
(1) If the public interest in admitting into evidence information or a document that relates to matters of state is outweighed by the public interest in preserving secrecy or confidentiality in relation to the information or document, the court may direct that the information or document not be adduced as evidence.
(2) Court can give such a direction on its own motion or on application of any person
(3) In its consideration, court can inform itself in any way it thinks fit.
(4) without limitation, info/document relates to matters of state if its admission would
(a) prejudice the security, defence or international relations of Australia;
(b) damage relations b/w the Cth and a State or between 2 or more States;
(c) prejudice the prevention, investigation or prosecution of an offence
(d) ‘’ ‘’ proceedings for recovery of civil penalties
(e) disclose, or enable person to ascertain, the existence or identity of a confidential source of information relating to the enforcement or administration of a law of the Cth or State
(f) prejudice proper functioning of the government of the Commonwealth or a State.
(5) Factors to take into account
(a) Importance of information/document in the proceeding
(b) if proceeding is criminal proceeding—whether party seeking to adduce evidence of information or document is an accused or the prosecutor;
(c) Nature of offence, COA/defence to which info/document relates, and the nature of the subject matter of the proceeding
(d) likely effect of adducing that evidence, and means available to limit its publication?
(e) Whether substance of info/document has already been published
(f) If proceeding is a CP and the party seeking to adduce evidence of the info/doc is an A, whether the direction is to be made subject to the condition that the prosecution be stayed.
(6) State includes State/Territory.
