Privilege Flashcards
What are the main privileges that can apply?
1 - Legal professional privilege - Client and lawyer correspondence where dominate purpose of the correspondence is getting or giving legal advice (Esso v FCT) (CEA 117)
2 - Privilege against self incrimination - Can not be compelled to give evidence which may tend to incriminate (N.B. s 15(1) can not invoke if giving evidence)
3 - without prejudice communications in civil proceedings are not admissible.
Does is LLP claimed?
LLP confidential communication between a client and lawyer for the dominate purpose of providing legal advice is not required to be disclosed to the court or other party.
The onus is on the person claiming LLP to provide must prove facts showing the claim is properly made.
A claim of LLP can either happen during discovery (civil see r 213 UCPR) or a hearing (criminal for persons other than accused giving evidence).
LLP can be waived by the person who has right to it.
Crown can not claim to avoid disclosure regime.
Privileges not available in QLD as opposed to Commonwealth
1) No religion confession privilege - s 127 EAC
2) No privilege re: journalists- s 126 EAC
3) No spousal immunity - s 8 EAQ
4) No privilege re: doctors or counsellors
Are without prejudice communications in civil proceedings admissible? If no, explain the rationale…
No. Special form of privilege - ‘without prejudice’ privilege allows a party in a civil case to approach another party with an offer to resolve the matter without recourse to litigation.
Despite potential limited admissions of liability in such offers, the effect of such privilege is that there no such admission or anything else contained in the offer that may be adduced in evidence later, should the offer be rejected.
Although it may have implications for the costs. The absence of the phrase ‘without prejudice’ does not prevent the privilege operating where the offer was made with genuine intent to settle the matter.
