Opposing Disclosure - Objecting to Production and/or Access: Privilege

Question 1

What is privilege?

Answer 1

It protects key documents and information from discovery and thus from use in trial. IT arises out of relationships that rely on honesty and candor.

Question 2

Evidence Act s131A

Answer 2

Section applies in response to a disclosure requirement OR if a party that seeks disclosure pursuant to a disclosure requirement.

Question 3

Relevant legislation

Answer 3

UCPR r1.9

Question 4

Can Oral testimony be privileged information?

Answer 4

Yes, Oral testimony can be privileged information.

Question 5

What legislation is relevant when discussing the relationship that a lawyer has with others and the ability for materials to be discovered?

Answer 5

Evidence Act 1995 (NSW) ss 117-120
communications may be between;
Lawyer and client
Lawyer and a third party
"Lawyer" includes certain employees.

Question 6

Legal advice privilege

Answer 6

s118 Evidence Act

Question 7

Litigation privilege

Answer 7

s119 Evidence Act

Question 8

What are the steps of the Dominant purpose test?

Answer 8

1) it is confidential communication
2) made in connection with the provision of professional legal services to a client
3) Made for the dominant purpose of providing legal advice or for use in pending or anticipated litigation.

Question 9

What is the case citable for the Dominant Purpose Test?

Answer 9

Mitsubishi Electric Australia Pty Ltd v Victorian Work Cover Authority (2002) 4 VR 332

Question 10

Evidence Act s117

Answer 10

‘client’ is defined

Question 11

confidential communication is defined

Answer 11

The person or the person for whom it was prepared was under an express or implied obligation not to disclose it’s contents, wherever or not the obligation arises under law.

Question 12

What legislation defines a Confidential communication?

Answer 12

Evidence Act S 117(1) The person or the person for whom it was prepared was under an express or implied obligation not to disclose it’s contents, wherever or not the obligation arises under law.

Question 13

AFP v Propend Finance. (1997) 188 CLR 501

Answer 13

“Privilege can attach to a copy of an others unprivileged document if the copy is made in the course of giving legal advice for litigation.”

Question 14

What legislation provides the condition in which Client Legal Privilege is lost?

Answer 14

Evidence Act s 121,122,124,125,126

Waiver by intentional disclosure, Inadvertent disclosure, disclosure to a 3rd party.

Question 15

What is a “bundle”?

Answer 15

documents provided to the other party in a civil claim,

Question 16

What was the main take-away from ERA v Armstrong [2013] HCA 46

Answer 16

In large cases, if a document is accidentally disclosed, the disclosee has the benefit of asking for immediate return of the document unless there is an element of unfairness that arise .

Question 17

What does Evidence Act s 127 regulate?

Answer 17

Religious confession privilege.

Question 18

What does section 30(4) of the Civil Prodecure Act refer to?

Answer 18

Privilege in Court annexed mediation - evidence of anything said or any admission made in a mediation session is not admissible unless the parties consent or any of the reasons outlines in s31 of the CPA.

Question 19

Evidence Act s131

Answer 19

Exclusion of evidence of settlement negotiations

Question 20

What was the key takeaway from the case - Field v Commissioner for Railways (1957) 99 CLR 285

Answer 20

Excluding evidence from settlement negotiations. evidence that is outside the settlement is not privileged. (what is the degree of proximity)

Question 21

Azzi v Volve Car Australia Pty Ltd (2007) 71 NSWLR 140

Answer 21

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