Privilege Flashcards
The original test in Australia for privilege was whether a communication was made for the sole purpose of seeking legal advice.
Grant v Downs [1976] HCA
Incident report - patient escaped - to be created anyway.
The doctrine of privilege is not confined to judicial or quasi judicial proceedings - it is a substantive rule of the common law.
Baker v Campbell [1983] HCA
Warrant - solictors records - sales tax liability scheme.
It is inconsistency between the conduct of the client and maintenance of the confidentiality which effects a waiver of the privilege.
Mann v Carnell [1999] HCA
Chief Minister - gave legal advice to MLA - no waiver to TP.
The test at common law is now a dominant purpose test.
Esso Australia v Commissioner of Taxation [1999] HCA 67
Challenged assessment - privileged claimed - dominant purpose.
The discredited view that the common law must “mold” itself to the new statutory environment of the Evidence Act 1995 (Cth).
Adelaide Steamship Co Ltd v Spalvins [1998] FCFCA.
Subpoena - concurrent operation of UEA - ‘judicial pragmatism’.
Communications between Crown and in house council can be privileged.
Waterford v Commonwealth [1987] HCA
FOI - legal advice on budget papers - unemployment benefits.
A copy of a non-privileged document sent to a lawyers becomes privileged as it is evidences the ‘communication’.
Commissioner AFP v Propend Finance Pty Ltd (1996) HCA
Search warrants - solictor - suspected tax evasion involving overseas subsidiaries of Best and Less.
Legal professional privilege does not cover instances of fraud, which extends to anything that might be described as a fraud on justice.
A G (NT) v Kearney (1985) HCA
Advice - declare as towns to defeat land title claims - deliberate abuse of statutory powers.
The former test for common law waiver is whether the conduct in question makes the maintenance of the privilege ‘unfair’.
Goldberg v Ng (1996) HCA
Solicitor accussed of misconduct - disclosed privileged communications to exonerate themselves - waiver as would be unfair to maintain waiver in civil proceeding.
A pragmatic approach, consistent with CPA and with a desire to avoid ‘satellite litigation’, will govern inadvertent disclosure to ones opponent.
Expense Reduction Analysts Group Pty Ltd v Armstrong Strategic Management and Marketing Pty Limited [2013] HCA 4
Mass discovery - inadvertent disclosure - immediate request to return.
Which section of the UEA states that privilege can be waived by consent?
s 122(1) Evidence Act 2008 (Vic)
‘This Division does not prevent the adducing of evidence given with the consent of the client or party concerned.’
Which sections of the UEA adopts the common law inconsistency test of waiver from Mann v Carnell [1999] HCA?
s 122(2) Evidence Act 2008 (Vic)
‘acted in a way that is inconsistent with the client or party objecting’
What does s 122(5)(a)(i)-(iv) Evidence Act 2008 provide?
Privilege is not waived (i.e. there is no inconsistency) if:
(i) disclosure is confidential; (ii) is made under duress; (iii) is made under compulsion of law; (iv) internal government communications.
Which section of the UEA provides there is no waiver if you provide documents to a co-client?
s 122(5)(b) Evidence Act 2008
‘the same lawyer is providing… professional legal services to both the client and the other person.’
Which section of the UEA provides there is no waiver if you provide the material to a person with a sufficient “common interest” in the litigation?
s 122(5)(c) Evidence Act 2008
‘had, at the time of the disclosure, a common interest relating to the proceeding in an Australian or foreign court…’
Which section provides that the existence of a joint interest privilege does not prevent one client from unilaterally waiving that privilege?
s 124 Evidence Act 2008
‘This Division does not prevent one of those parties from adducing evidence of…[privilege]’
Which section provides that if privilege is waived over a document (i.e. by voluntary disclosure) this will waive privilege over any related document?
s 126 Evidence Act 2008
“reasonably necessary to enable a proper understanding…”
A communication or document made in an attempt to resolve a dispute is inadmissable.
s 131 Evidence Act 2008
Without prejuice privilege.
Which section of the UEA provides for the extension of the Evidence Act to pre-trial matters?
s 131A Evidence Act 2008
‘Application of Part to preliminary proceedings of courts’
Which section provides that the courts may inspect a document to determine its privileged status?
s 133 Evidence Act 2008
“…inspect the document for the purpose of determining the question.”
Which section of the Uniform Evidence Act provides for the fraud exception?
s 125 UEA
Misconduct - in “furtherance of fraud or offence or civil penalty” - “furtherance of deliberate abuse of power”.
“One does not lose privilege on a note made as an aide-memoire for the asking of legal advice by putting ten other notes on the same page to remind one to ask about ten other topics.”
See also Pt 2 Dictionary - document includes part of a document.
Kennedy v Wallace [2004] FCFCA
Handwritten note - Ritz Hotel London - Swiss lawyer.
Having regard to the importance of the evidence and the gravity of any allegation, the existence of privilege under s 118 / s 119 must be proven on the balance of probabilities.
s 142 Evidence Act 2008
Under the UEA, if a draft report or notes are prepared for the dominant purpose of “being furnished for comment or advice by the lawyer, then it is privileged.”
Applies equally to that precise draft and later intended drafts.
New Cap Reinsurance Corp Ltd (in Liq) [2006] NSWSC per White J
Insolvent trading - expert report on solvency - drafts.
At common law, an experts internal working notes are not privileged as they are not in the nature of, nor do they evidence, communications.
ASIC v Southcorp Limited (2003) FCA per Lindgren J
How do government regulators view legal professional privilege?
They view it as obstructive.
In the US, the SEC will sometimes consider the maintenance of legal professional privilege as uncooperative and seek a higher penalty.
“It should not be thought that the privilege is necessarily or conclusively established by resort to any verbal formula or ritual”.
Barwick CJ in Grant v Downs [1976] HCA
“The only difference is they act for one client only, and not for several clients”
Denning LJ in Alfred Crompton Amusement Machines Ltd v Commissioners of Customs and Excise [1972] EWCA
Commissioner investigations - in house counsel advised - privileged.
The litigation privilege extends to documents prepared in contemplation of an adjudication under Security of Payment Legislation.
Dura Australia Constructions P/L v Hue Boutique Living P/L [2011] VSC
Security of payment legislation - receive evidence and submissions - “patently litigious”
Which section of the Uniform Evidence Act means privilege does not apply to documents that affect the rights of parties, such as oral or written contracts?
s 121 (3) Evidence Act 2008
’ adducing evidence of communication or document that affects a right of a person.’
Whether a limited disclosure of the existence, and the effect, of legal advice is inconsistent with maintaining confidentiality in the terms of advice will depend upon the circumstances of the case.
Osland v Secretary to the Department of Justice [2008]
Petition for mercy - legal advice - press release.
Which section provides that privilege will be waived when there is a knowing and voluntary disclosure of the substance?
s 122(3)(a) Evidence Act 2008
‘knowingly and voluntarily disclosed the substance of the evidence to another person’
Statute can only overrride legal professional privilege by clear words or necessary implication.
ACCC v The Daniels Corporation (2001) HCA
s 155 TPA - alleged breach of Act - privilege not abbrogated.
In the UK, the ‘client’ can be narrower than the client organisation as a whole.
Three Rivers District Council v Bank of England [2002] EWCA
Bingham Inquiry Unit - legal advice privielege - other employees third parties.
The dominant purpose means without this purpose the communication would make “no sense”.
FCT v Spotless Services Ltd [1996] HCA
Funds - deposit in Cook Islands - without tax benefit transaction made ‘no sense’
Legal advice extends to advice on what should be sensibly done in a given legal context.
AWB v Cole (No 1) [2006] FCA
Crisis management consultant - draft statement of contrition - sent to lawyer for comment.
All communications passing in the handling of a transaction are privileged (if they further legal advice) since solicitors are employed to ensure that the client ‘steers clear of legal difficulties’.
Balabel v Air India [1988] EWCA
Commercial leasing transaction - too and fro between client and solictor - no need to be pendantically expressed as for legal advice.
Which case expoused the former position that documents created by a third party for the purposes of legal advice were not privileged?
Wheeler v Le Marchant (1881) EWCA
Precise legal boundaries for advice - surveyors - report not privileged.
Which case found that third party reports for the purpose of legal advice could be privileged at common law?
Pratt Holdings Pty Ltd v Commissioner of Taxation [2004] FCAFC
Legal advice - taxation consequences of significant losses - PWC instructed to quantify.
Why did the ATO agree to introduce an accountant’s concession in the 1980s?
Accountants comlpained legal professional privilege gave lawyers an unfair competitive advantage in taxation matters.
Drafts may be privileged because they tend to disclose the character of confidential communications passing between solictor and client.
AG NT v Maurice [1986] HCA per Dawson J
Native Title Claim book - source material - no waiver.
There is no waiver in disclosing the existence of, or the identifying features of, a privileged communication.
State of Victoria v Davies [2003] VSCA
Surveillance - listing dates and locations in court book index - no ‘inconsistency’.
Confidentiality as against the other side is essential. Service of witness statements is a complete waiver.
ACCC v Cadbury Schweppes P/L [2009] FCAFC
ACCC prosecution - price fixing - later civil claim from Cadbury.
Which section of the CPA requres (subject to privilege) that you disclose the existence of critical documents in your possession?
s 26 Civil Procedure Act (2010) (Vic)
Except for trade rivals, mere confidentiality is not a ground for withholding relevant documents, as the greater public interest in disclosure prevails.
Mobil Oil Australia Ltd v Guina Developments P/L [1996] VSCA
Trade rivals - confidential trade secrets - impossible to forget.
Litigation is reasonably anticiapted if there is a real prospect of litigation (not mere possibility), but it does not have to be more likely than not.
Mitsubishi Electric Australia P/Lv VWA [2002] VSCA
swicthboard exploded - inherently likely to litigation - ordinary course of human affairs.
At common law though the requirement for confidentiality in litigation privilege is unsettled, a draft witness statement in witness’ hands is to be under an implied obligation of confidence.
Public Transport Authority of Western Australia v Leighton Contractors Pty Ltd [2007] WASCA
Perth-Mandurah railway - witness statement from ABS employees - inferred would remain private.
Narrations in a timesheet can be privileged if they disclose the existence of privileged communications.
Hodgson v Amcor Ltd [2011] VSC per Vickery J
memoranda or bills of costs - disclose, directly or indirectly - privilege.
Does the Evidence Act 2008 (Vic) apply to VCAT?
No.
- s 98(1)(b) VCAT Act - rules of evidence not applicable.
- also, not a “court” under s 4 Evidence Act 2008 - see Subway Systems Australia v Ireland and Ireland [2014] VSCA 142 per Maxwell P and Beach JA - depends on context.
In review matters, which section of the VCAT Act abbrogates legal professional privilege?
s 80(3) VCAT Act 1998
‘…requiring a party to produce a document or provide information …despite…any rule of law relating to privilege …’.
For civil proceedings, which section of the VCAT Act adopts the Evidence Act 2008 protection for legal professional privilege?
s 106 VCAT Act 1998
‘…a person is excused from answering a question or producing a document …if the person could not be compelled…in proceedings in the Supreme Court.’
Which section in Victoria provides for the medical practitioner privilege?
s 28(2) Evidence (Miscellaneous Provisions) Act 1958
‘No physician or surgeon shall without consent … divulge … any information … acquired in attending the patient and which was necessary to … prescribe or act for the patient.’
At common law, to trigger the litigation privilege proceedings must be truly advesarial / within the “adversarial system of justice”.
Outside the adversarial system, the “notion of a fair trial between opposing parties assumes far less importance”.
Ingot Capital Investments Pty Ltd v Macquarie Equity Capital Markets Ltd [2006] NSWSC
Australian Prudential Regulation Authority decision - appeal to AAT - subpoena for documents prepared in contemplation.
Which section provides that a court must make a person aware of their rights to claim privilege?
s 132 Evidence Act 2008
‘the court must satisfy itself … that the witness or party is aware of the effect of that provision…’
No common interest arises in a disclosure to a potential adversary.
Asahi Holdings (Australia) Pty Ltd v Pacific Equity Partners Pty Limited (No 2) [2014] FCA
Allegations of MDC in relation to share value - report provided to insurer - insurer had not yet accepted claim.
With legal professional privilege, the privilege is that of the client, but it is the duty of the client’s lawyer to claim the privilege if it exists.
Spalding v Radio Canberra Pty Ltd [2009] ACTSC 26 at [17].
Document to revive memory - waiver - obiter comment.
At Federal level, ss 118 and 119 of the Evidence Act do not apply to such interlocutory matters as discovery of documents.
- Northern Territory of Australia v GPAO and Ors* (1999) HCA
- Community Welfare Act* (NT) required no documents produced on subpoena - s 109 inconsistency with UEA? - UEA not applicable to subpoenas.
Which section of the Corporations Act prevents a ‘director, officer or employee of a company’ from improperly using information obtained from the company to the company’s detriment or for their benefit?
s 183 Corporations Act 2001
When taking a witness statement from a witness for the opposition, what must you bear in mind?
You may be liable for the tort of inducing breach of contract by asking questions liklely to involve a breach of the witness’s contractual confidentiality obligations.
See AG Australia Holdings Ltd v Burton (2002) 58 NSWLR 464.
Which section provides that the other side can see any document used to revive a witness’ memory?
s 34 Evidence Act 2008
‘The court may, on the request of a party, give such directions as are appropriate to ensure that specified documents and things used by a witness otherwise than while giving evidence to try to revive his or her memory are produced to the party for the purposes of the proceeding…’
While filing documents in court will waive privilege, there is an implied undertaking that documents filed in court will not be misused for a collateral purpose.
Home Office v Harman [1982] UKPC
Young solictor - documents read in open court - provided to journalist.
The implied undertaking is a substantive common law rule, which also applies to third parties who access documents.
Hearne v Street [2008] HCA
Luna Park nuisance - lobbied government to bar - forwarded affidavits and expert reports.
The rule relating to legal professional privilege is confined to the adducing of evidence. It does not prevent the drawing of inferences about the knowledge of a party, even if the probable source of such knowledge is a privileged communication.
Mead v Mead [2007] HCA
Court order freezing property - wife executed mortgage - could existence of legal advice mean wife was aware of order.
Instructing a lawyer to draft legislation is an implied request for legal advice - it relies on their legal skill and knowledge to draft valid and effective legislation.
State of New South Wales v Betfair [2009] FCFCA
Fees on field information - Betfair alleged unconstitutional - sought discovery of instructions to Parliamentary Counsel.
An inconsistency will arise when the substance or effect of external legal advice is deployed for forensic advantage.
Rich v Harrington [2007] FCA
Former PWC partner - discrimination - ‘we have at all times acted in accordance with advice’.
What is a Markus direction?
Orders non-privileged material not disclosed because:
- It will not assist the other party’s case; and
- It might tempt the other party to tailor their evidence.
A client may give a third party agency by specifically empowering them to communicate with their legal advisors.
See also s 117(1)(b) - employee or “agent” of a client.
Tabcorp Holdings v State of Victoria [2013] VSCA
State hired consultants - authorised to communicate with lawyer - lawyer/consultant communications privileged.
While the Uniform Evidence Acts do not define legal advice, how is it defined elsewhere?
Under the Legal Profession Uniform Law (Vic) it includes:
‘work done, or business transacted, in the ordinary course of a legal practice’.
Claiming costs does not waive privilege over source documents, though it may limit the evidence available to the taxing officer.
Giannarelli v Wraith (No 2) (1991) HCA per McHugh J
Barrister’s immunity test case - insurer allegedly indemnified costs - correspondence with insurer privileged.
A clients name and address, as facts, are ordinarily not privileged.
Z v New South Wales Crimes Commission [2007] HCA
Informant - solictor directed to disclose name - statute overrode privilege.
Secondary material can be privileged.
Fenwick v Wambo Coal Pty Ltd (No. 2) [2011] NSWSC
Draft letter -‘this is legal advice received’ - privilege should have been claimed.
Privilege does not attach to facts observed in the course of a retainer.
Brown v Foster (1857)
Client’s book of account - barrister inspected - later asked about particular entry.
Ascertaining the dominant purpose may require examination of the entire corporate hierarchy.
The necessary purpose is the corporation’s.
Powercor Australia v Perry [2011] VSCA
Bushfires - in-house counsel aranged reports - CEO not called to rebut inference of multiple purposes (i.e. reporting to regulator, Royal Commission etc).
Ascertaining the dominant purpose will often require consideration of the ‘surrounding facts and circumstances’, particularly previous dealings between the parties.
McHugh J in Esso Australia v Commissioner of Taxation [1999] HCA.
When reporting legal advice at a meeting, what must you be careful of?
The presence of third parties or other guests that might destroy the confidentiality of the advice.
Litigation privilege allows parties to prepare their case “without adversarial interference and without fear of premature disclosure”.
Blank v Canada (Minister of Justice) [2006] SCC
Director - wrongfully prosecuted - sued and sought litigation documents from Government.
Which section of the Uniform Evidence Act provides for the self incrimination privilege?
s 128 Evidence Act 2008
“may tend to prove the witness…has committed an offence…or is liable to a civil penalty.”
The protection against self incrimination is not available to companies.
See also s 187 Evidence Act 2008.
Environment Protection Authority v Caltex Refining Co Pty Limited (1993) HCA
EPA prosecution - Caltex directed to produce documents - claimed privilege.
Victoria has a journalist source privilege, subject to a prevailing public interest test in disclosure.
s 126K(1) Evidence Act 2008
‘if a journalist … not) compellable to give evidence that would disclose the identity of the informant.’
Spousal privilege is not a common law right.
But see compellability provisions under s 18 Evidence Act 2008.
Australian Crime Commission v Stoddart [2011] HCA
Gold Coast accountant - market tax exploitation schemes - wife no basis to resist summons.
At common law, a document prepared for use in a communication was privileged, although not in fact used.
Southwark Water Co v Quick (1878)
Documents prepared - to be laid on company solictor - not used.
Privilege does not attach when used in furtherance of a crime.
R v Cox and Railton (1884)
Judgement debtors - sought advice - backdate partnership dissolution to frustrate creditor.
Privilege will not attach to attempts to frustrate execution of court order.
R v Bell; ex parte Lees (1980) HCA
Interim custody order - wife disappeared with child - instructed solictor with her whereabouts.
A person cannot be compelled to produce privileged documents, even if it may assist the accussed in a criminal defence.
Carter v The Managing Partner Northmore Hale Davy and Leake (1995) HCA
Accountant - misleading audit of Rothwells - intent to deceive.
What has been described as “one of the most misused phrases in legal jargon”?
Without prejudice.
WIthout prejuice privilege is not available if withholding the evidence would mislead the court.
s 131(2)(g) Evidence Act 2008
See also Pitts v Adney (1961) - no reply received - admission by silence.
Without prejudice privilege does not apply to a document relevant for determining costs.
s 131(2)(h) Evidence Act 2008
“Calderbank” exception.
Without prejudice privilege does not apply if making the communication, or preparing the document, affects a right of a person.
s 131(2)(i) Evidence Act 2008
Without prejudice privilege does not apply to proceedings to enforce the settlement agreement.
s 131(2)(f) Evidence Act 2008
What is the justification for the litigation privilege?
Uninterrupted case preperation.
What did Sydney Airports v Singapore Airlines [2005] hold in relation to the dominant purpose of seeking an expert report after an incident?
The dominant purpose is that of the corporation, not the in house counsel.
If you need to communicate for a privileged and non-privileged reason, what is it prudent to do?
Create seperate documents.
cf ‘crisis management’ advice in AWB per Young J
If litigation is possible, what should a client be wary of in relation to its internal processes?
Internal investigations before engaging lawyers.
(common in insurers, large corporates)
Though barristers and litigation lawyers rarely need to worry about privilege, who might need to?
Transactional lawyers engaged in non-legal advice work.
Why should you interact with experts as if the court was looking over your shoulder?
After the expense, client is very unlikely not to use report.
Pleading you have “obtained QC advice and have reasonable prospects” waives privilege, even if it is a condition precedent to claiming.
Lactalis v Jindi Cheese [2013] VSC
The Harman implied undertaking extends to arbitrations.
s 27E Commercial Arbitration Act 2011 (Vic)
must not disclose confidential information in relation to the arbitral proceedings…
Can a party consent to a release of the Harman implied undertaking?
No.
The implied undertaking is given to the Court, only the Court may release a party from its obligation pursuant to it.
In what circumstances will a court release a party from a Harman implied undertaking?
If there are “special circumstances”.
(Documents are commonly sought for “second proceedings”).
Is the Harman undertaking is a defence against subpoenas, discovery or inspection?
No. It must yield.
There is no implied duty of confidentiality in an agreement to arbitrate, since confidentiality is not “an essential attribute” of a private arbitration.
Esso Australia Resources Ltd v Plowman [1995] HCA
Third party - wanted access to arbitration documents - Harman defence raised.
