Privileges

Question 1

What is the legal advice privilege ? s118

Answer 1

• Evidence cannot be adduced, on objection by a client, if would result in disclosure of –
  o Confidential communication made between client and a lawyer;
  o Confidential communication made between 2 or more lawyers acting for the client; or
  o The contents of a confidential document (whether delivered or not) prepared by the client, lawyer or another person –
  For the DOMINANT purpose of the lawyer providing legal advice to the client.

Question 2

How legal advice privilege is raised?

Answer 2

by objection of a party
HOWEVER,
* A court must be satisfied that a witness or a party is aware of any right he or she has under Part 3.10 (s132)

Question 3

Who bears the onus in claiming legal advice privielege?

Answer 3

The party claiming the legal advice or the litigation privilege bears the onus of establishing the basis of the claim.

Question 4

What should be considered when determining legal advice privilege attaches to a ‘communication’?

Answer 4

For the purposes of determining whether client legal privilege attaches to particular communication:

o If a communication refers to an earlier communication, each communication must be considered separately; and
o Non-privileged material does not become privileged by later being included in a privileged communication.
* Does not apply to communications with a third party.

Question 5

What type of documents are covered by legal advice privilege? s118

Answer 5

• In all cases, the documents must be confidential and prepared for the specified purpose.

NOTE: The Act applies to documents prepared for the required dominant purpose, even if the document is a draft or is not communicated to the client (New Cap Reinsurance Corp)

Question 6

What does legal advice include in legal advice privilege?

Answer 6

• The advice must be professional advice given by a lawyer who is acting in a legal capacity to provide legal advice. The advice may go beyond formal matters of the law, but it must relate to matters of law.

Question 7

How does the court establish the purpose of a document in legal advice privilege?

Answer 7

• Communications made at the same time and in different parts of a document may have different purposes;
• The purpose is to be determined at the time the communication was made or the document was created; and
• The purpose cannot be proved by the mere assertion of a third party.

Question 8

What is the test for determining the dominant purpose of a document in legal advice privilege?

Answer 8

• There is a two step approach to determining dominant purpose (Matthews v SPI):
  o First, the subjective purpose/s of the person/s making or commissioning the particular communication must be determined; and
  o Second, if the court determines that there was more than one purpose, and at least one of those purposes was capable of attracting legal professional privilege, the court must determine whether the party claiming the privilege has established that the privileged purpose was the dominant purpose.

Question 9

What is litigation privilege? s119

Answer 9

• Evidence cannot be adduced, if on objection by a client, adducing evidence would result in disclosure of –
  o A confidential communication between the client and another person, or between a lawyer acting for the client and another person that was made; or
  o The contents of a 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 overseas proceeding (including the current proceeding), or an anticipated or pending Australian or overseas proceeding, in which the client may be, or is, or might have been, or was, a party.

Question 10

Who bears the onus when litigation privilege is claimed?

Answer 10

• The party claiming the legal advice or the litigation privilege bears the onus of establishing the basis of the claim, and the party seeking production does not bear the onus of excluding privilege

Question 11

How litigation privilege is raised?

Answer 11

by objection of a party
HOWEVER,
* A court must be satisfied that a witness or a party is aware of any right he or she has under Part 3.10 (s132)

Question 12

What documents are covered by litigation privilege?

Answer 12

• Courts have generally adopted a restrictive approach to the confidential documents covered by these provisions.
• In all cases, the documents must be confidential and prepared for the specified purpose.

Question 13

How is the purpose a document determined for litigation privilege?

Answer 13

• Communications made at the same time and in different parts of a document may have different purposes;
• The purpose is to be determined at the time the communication was made or the document was created; and
• The purpose cannot be proved by the mere assertion of a third party.

Question 14

What is the test for determining the dominant purpose of a document in claims of litigation privilege?

Answer 14

• There is a two step approach to determining dominant purpose (Matthews v SPI):
  o First, the subjective purpose/s of the person/s making or commissioning the particular communication must be determined; and
  o Second, if the court determines that there was more than one purpose, and at least one of those purposes was capable of attracting legal professional privilege, the court must determine whether the party claiming the privilege has established that the privileged purpose was the dominant purpose.

Question 15

What is public interest immunity? s130

Answer 15

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.

Question 16

Is public interest immunity an absolute immunity?

Answer 16

No

Question 17

What should the court consider when determining claims of public interest immunity?

Answer 17

S130(5)

a) The importance of the information or the document in the proceeding;
b) If the proceeding is a criminal proceeding –whether the party seeking to adduce the evidence of the information or document is an accused or the prosecutor;
c) The nature of the offence, cause of action or defence to which the information or document relates, and the nature of the subject matter of the proceeding;
d) The likely effect of adducing evidence of the information or document, and the means available to limit its publication;
e) Whether the substance of the information or document has already been published;
f) If the proceeding is a criminal proceeding and the party seeking to adduce evidence of the information or document is an accused –whether the direction is to be made subject to the condition that the prosecution be stayed.

Question 18

When a document is taken to relate to matters of state?

Answer 18

s130(4)

if adducing it as evidence would –
a) Prejudice the security, defence or international relations of Australia; or
b) Damage the relations between the Cth and a State or between 2 or more States; or
c) Prejudice the prevention, investigation or prosecution of an offence; or
d) Prejudice the prevention or investigation of, or the conduct of proceedings for the recovery of civil penalties brought with respect to, other contraventions of the law; or
e) Disclose, or enable a 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 a State (identity of an informer); or
f) Prejudice the proper functioning of the government of the Cth or a State.

Question 19

What are the two aspects of public interest immunity?

Answer 19

2. The public interest has two aspects: the protection of government from the harm which may be caused by disclosure, and the interest in ensuring that justice can be effectively administered;

Question 20

What is the rule for disclosure of confidential communication for unrepresented parties? s120

Answer 20

(1) Evidence is not to be adduced if, on objection by a party who is not represented in the proceeding by a lawyer, 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.

NOTE: Relates to THE proceeding, not a proceeding.

Question 21

Who bears the onus where there is a claim of loss legal privilege?

Answer 21

• Burden of proof is on the party who asserts privilege has been lost.

Question 22

Can evidence be adduced by consent?

Answer 22

Yes - * Per s122(1), can disclose with consent of the client.

Question 23

When is a party taken to have acted inconsistently regarding a privilege?

Answer 23

• A client or party is taken to have acted inconsistently with the maintenance of client legal privilege if (s122(3)):
  o The client or party knowingly and voluntarily disclosed the substance of the evidence to another person; or
  o The substance of the evidence was disclosed with the express or implied consent of the client or party; and
  o None of the circumstances of s122(4) or (5). Applies.

Question 24

What happens to claims of privilege in civil matters involving joint parties?

Answer 24

• Under the UEA, privilege over such evidence is lost where it is adduced by one of the joint parties in connection with the joint matter.

Question 25

What is the rule for client legal privilege over ‘related’ documents? s126

Answer 25

• If client legal privilege is lost over a communication or document, then any such privilege over other, related communications or documents is lost if those other communications or documents are reasonably necessary to enable a proper understanding of the first communication or document

Question 26

What are the pre-conditions for invoking journalistic privilege? s126J-K

Answer 26

• Following perquisites must be met:
  o Journalist made a promise to an informant;
  o That promise was made in the course of the journalist’s work; and
  o The promise made was the journalist would not disclose the informant’s identity.

Question 27

Who bears the onus in journalistic privilege claims?

Answer 27

The journalist

Question 28

What should the court consider when determining whether the public interest in disclosure outweighs the public interest in nondisclosure?

Answer 28

• o whether the proceeding is criminal or civil;
  o the seriousness of the charge in a criminal proceeding;
  o the importance of the evidence in the proceeding
  o the accused’s right to know relevant information to protect their right to a fair hearing;
  o the nature of the information obtained from the informant;
  o the manner in which the information was obtained from the informant;
  o whether the informant’s evidence can be obtained without compelling the journalist to give evidence;
  o the probative value of the information obtained from the informant, as well as the probative value of the informant’s identity; and
  o the deterrent effect of ordering disclosure.

Question 29

What is the privilege against self incrimination? s128

Answer 29

• S.128 applies if a witness objects to giving particular evidence because doing so may tend to prove the witness has committed an offence against, or arising under, an Australian law or a law of a foreign country, is liable to a civil penalty.

Question 30

What are the three potential outcomes of privilege against self-incrimination? s128

Answer 30

o Witness claims for privilege and is held by the judge to be misguided – privilege cannot be claimed and they have to answer
o Privilege is upheld and witness is not obliged to answer.
o A witness who has a legitimate claim to privilege against self-incrimination, can be required to give their answers anyway. In exchange, they can be given a certificate that protects their evidence being used against them in subsequent proceedings.

Question 31

What should the court do if it is satisfied that there are reasonable grounds for the self incrimination objection?

Answer 31

• If the court determines there are reasonable grounds for the objection, it must inform the witness:
  o that he or she need not give the evidence unless required by the court to do so under s128(4); and
  o that the court will give a certificate under s128 if:
   the witness willingly gives the evidence without being required to do so; or
   the witness gives the evidence after being required by the court to do so; and
  o of the effect of the certificate (s128(3)).

Question 32

Can a witness refuse to give evidence at all under the privilege against self-incrimination?

Answer 32

No
Applies to W in witness box giving evidence - not a ground to refuse to give evidence

Question 33

What is the effect of s128 certificate?

Answer 33

• s128(7) confers both a use and derivative use immunity with respect to evidence which is the subject of a certificate in any proceeding:
  o in a Victorian court;
  o before any person or body authorised by a Victorian law, or by consent of parties, to hear, receive and examine evidence.

Question 34

Does s128 privilege extend to accused giving evidence?

Answer 34

No
* In criminal proceedings, s128 does not apply to the giving of evidence which goes to either an act or a state of mind which is a fact in issue.

Question 35

What are examples of evidence excluded in public interest?

Answer 35

1. a) Exclusion of evidence of reasons for judicial etc. decisions (S129)
   2.b) Exclusion of matters of state (s130)

Question 36

How is evidence of judicial reasons excluded? s129

Answer 36

• Prohibits oral and documentary evidence of the reasons and deliberations of judges, jurors, arbitrators and persons under their direction or control.
• S129(1) applies to a ‘decision’ – ‘not merely an intermediate mental process but reflects a determination or judgment of a substantive or procedural issue’

Question 37

What is the exception to the exclusion of evidence of judicial reasons?

Answer 37

Certain administration of justice offences - eg. pervert course of justice offences/ bribery of public official

Question 38

Can evidence of settlement negotiations be excluded?

Answer 38

YEs
* Communication of settlement negotiations as well as documents prepared in connection with settlement negotiations are excluded (s131).
The use of the words ‘without prejudice’ is indicative but not determinative or conclusive of an attempt to negotiate a settlement (GPI Leisure).