Privilege

Question 1

118 – Legal advice privilege

Answer 1

Evidence is not to be adduced if, on objection by a client, the court finds that adducing the evidence would result in disclosure of:

• confidential communication BETWEEN CLIENT AND LAWYER;
• confidential communication BETWEEN LAWYERS acting for the client;
• confidential DOCUMENTS prepared by a client, lawyer or third party;

for the DOMINANT PURPOSE of the lawyer (or one or more lawyers) providing LEGAL ADVICE to the client.

Question 2

119 – Litigation privilege

Answer 2

Evidence is not to be adduced if, on objection by a client, the court finds that adducing it would result in disclosure of:

• confidential communications between a) CLIENT and A THIRD PARTY or
  b) client’s LAWYER and A THIRD PARTY, made for; and
• confidential DOCUMENTS prepared for (whether delivered or not),

the DOMINANT PURPOSE of providing the client with LEGAL SERVICES which relate to an Aus or OS PROCEEDING (current, pending or anticipated) in which the client is, or might be, a party.

Question 3

128 – Privilege in respect of self-incrimination in other proceedings

Answer 3

128 applies if a W objects to giving particular evidence or evidence on a particular matter because doing so may tend to prove the W:

• has committed an offence against, or arising under, an Aus or foreign law, or
• is liable to civil penalty.

If court determines there are REASONABLE GROUNDS for objection, court is to inform the W:

• they don’t have to give the evidence unless required by the court to do so, BUT
• the court will give a CERTIFICATE under s 128 if the witness willingly gives the evidence without being ordered to do so; and
• of the effect of an evidentiary certificate.*

BUT Court may require the witness to give the evidence (notwithstanding risk of self-incrimination) IF satisfied that:

• the evidence does NOT tend to prove that the witness has committed an offence or is liable to civil penalty; AND
• the interests of justice require that the witness give the evidence.

Question 4

128A – Privilege re self-incrimination: exception for search / freezing orders

Answer 4

128A provides a process for dealing with objections on the grounds of SELF-INCRIMINATION when complying with a DISCLOSURE ORDER (an order made by a court in a civil proceeding requiring a person to disclose information as part of/in connection with a FREEZING OR SEARCH ORDER under the SCR).

If a person subject to a disclosure order objects to providing the information, that person must:

• prepare a PRIVILEGE AFFIDAVIT containing the information to which objection to compliance with search or freezing order is taken, AND
• deliver it in a SEALED ENVELOPE to the court, AND
• file and serve on each other party a SEPARATE AFFIDAVIT which sets out the BASIS of the objection.

If court finds there ARE REASONABLE GROUNDS for the objection on grounds of self-incrimination, must not require disclosure of the info in the privilege affidavit AND must return privilege affidavit to the relevant person.

If NO REASONABLE GROUNDS of objection, applicant must disclose the information if required by the search / freezing order.