Lecture 4 - Opposing disclosure, Objecting to

Privileges - relate the the use and admissibility of information and

documents
⁃ It is the nature of the communication that gives rise to privilege
⁃ Privilege against self incrimination
⁃ Religious discrimination privilege
⁃ Client legal privilege
⁃ Ability to maintain a strict level of confidentiality between
lawyers and clients so they can be advised properly.
⁃ Covers oral or in writing if the communication was for the
purpose of giving legal advice or for use in litigation
⁃ Privilege can also attach to an expert report.
⁃ Applies pre trial s 131 Evidence Act
⁃ Seen as a right
⁃ AFP Commissioner and Propend
⁃ Practical guarantee of fundamental, constitutional or
human rights
⁃ Identifies the tension between needing to protect
⁃ Natural corollary to the rule of law.
⁃ Type 1: Legal Advice Privilege s118 Evidence Act
⁃ Key questions to ask
⁃ Privilege protects confidential information.
⁃ It is the clients privilege, not the lawyers - only clients are
allowed to waive it.
⁃ Existence - to enchance administration of justice (Grant v
Downs HCA - see Steven J, Mason J, and Murphy J)
⁃ Promotes the public interest by facilitating -
confidentiality pushes client to retain for legal
advice.
⁃ Test to see if communication is privileged:
⁃ Dominant Purpose
⁃ Use to be the sole purpose test -> changed to DP
⁃ Adducing evidence must disclose confidential
communication - being under an express or
implied obligation to not disclo.
⁃ se the information.
⁃ See Evidence Act 1995 s117-120
⁃ Same test applies at common law (Esso Australia
Resources v Commissioner of Taxation)
⁃ Unfettered access to information.
⁃ Whether or not the person claiming privilege is a
client
⁃ s117 Evidence Act
⁃ Agent or employee of client
⁃ Includes representative of client
⁃ To decide what the dominant purpose was
⁃ Would privilege attach to an otherwise unprivileged
document - copies of UD for the purpose of legal
advice become privileged.
⁃ AFP v Propend -> yes (AFP raids lawyers office to get
documents of copies that were transferred -
won’t hold up because they were between
solicitor and clients.)
⁃ If a copy is made solely for giving to an advisor -
would be privileged.
⁃ Sole purpose v Dominant purpose
⁃ SP too narrow - DP should be preferred as it brings
both considerations in the balance.
⁃ The Evidence Act 1995 (Rules on disclosure)
⁃ s 117 - definitions
⁃ s 118 - Legal advice
⁃ s 119 - Litigation
⁃ Loss of client legal privilege
⁃ Prevent enforcement of court order (s 121)
⁃ Affects rights of person (s 121)
⁃ Third party (s 121)
⁃ Waiving privilege
⁃ By intentional disclosure (Fenwick v Wambo Coal - draft letter
to plaintiff - believed letter did not attract privilege and was
discovered and included in tender bundle in court (had been
disclosed voluntarily)
⁃ P argues that privilege had been waived on the basis that
the content had been knowingly and confidently
disclosed (had the P waived privileged of all advice by
waiving privilege to the conclusions drawn in the
letter)
⁃ Used s 122(3)(a) of EA 1995 - includes reasoning process
and conclusion of legal advice - held that the privilege
had been waived.
⁃ Disclosure of the substance of the evidence.
⁃ By inadvertent waiver
⁃ ERA v Armstrong (2013) accidental electronic disclosure
case
⁃ Inadvertent dislcosure due to a clerical error is not
knowing and voluntary (s 122 EA)
⁃ See LPULASCR 2015 s 31.1 (on inadvertent disclosure)
⁃ Waiver by disclosure to a third party
⁃ Not a waiver unless client has impliedly or expressedly
acted in a way to waive privilege.
⁃ See Mann v Carnell (1999)
⁃ Carnell writes to ACT asking for response to member
from Mann (that he originally wrote)
⁃ Purpose of privilege is to protect an organization
⁃ Will waive privilege if substance is disclosed
⁃ s 64 CPA (can apply to documents in discovery as well as
in pleadings - amendment of docs)
⁃ See UCPR 1.9 on privilege
⁃ Settlement Negotiations privilege
⁃ s131 Evidence Act 1999 (general provision)
⁃ Broadly
⁃ s 30 CPA 2005 (court ordered mediation)
⁃ Narrowly
⁃ See Azzi v Volvo (2007)
⁃ see [7], [12], [13]
⁃ In support of an application for indemnity costs, V sought
to admit evidence in regards to an indemnity
provision, argued that s 131 (2)(h) of Evidence Act
removes the bar to admissibility - s 30(4) of CPA is
better to use because it is available and evidence was
not admissible.
⁃ Negotiations privilege only applies to dispute settlement
⁃ s30 CPA
⁃ Privilege in mediation session (s25)
⁃ Follows s30(4) - does this apply to all mediation sessions
or just court ordered ones?
⁃ Only court ordered (Lewis v Lamb) [2011]
⁃ s31 Confidentiality
⁃ Field v Comissioner of Railways (1957)
⁃ P sues railway claiming that train started while getting on
 which caused him to be thrown; D argues that medical
evidence was privileged.
⁃ P’s evidence fell outside the area of protection - evidence
of doctor was admissible - see [7] and [8]
⁃ Any information that is made during negotiations to settle a
dispute is privileged can’t be disclosed to ensure good
faith.

Exam Preparation Notes

⁃ See exam tips doc on Canvas
⁃ Refer to legislation, case law, and secondary material
⁃ Need to know all material under required reading in UOS outline is
assessable
⁃ List of further reading
⁃ To assist comprehension of required reading,
⁃ Material for problem questions
⁃ Cases in UOS outline and cases from readings and cases from
lecture slides
⁃ Tutorials enforce material from lecture.
⁃ Essays
⁃ Textbook assigned from required reading
⁃ Ground essay answers in the law that will help illustrate the
answer
⁃ Legislation, case law, and secondary literature,
⁃ Cite the original author from the brown text if using textbook.
⁃ For problem questions
⁃ Cite ONLY required reading and case law (no articles or
secondary material)
⁃ No AGLC 3rd
⁃ Underline case names, use acronyms for certain legislation
⁃ Note tips
⁃ Two sets of notes
⁃ Problem question 25 marks
⁃ Preparing summaries of material in the material and
unit outline
⁃ Full outlines of legislation
⁃ Structuring exam notes by issue (whether an issue
has arisen for the procedure to be lawful)
⁃ Flowcharts for Crim Pro (potential use of power)
⁃ Essay 5 marks
⁃ Consider central themes of unit
⁃ Consider examples of procedure that illustrate
different material
⁃ Testing our comprehension of material in unit outline
⁃ Either one or multiple topics
⁃ Few key points to cover analysis.
⁃ Law in one column - broader principles in the other
⁃ Able to bring in books and notes
⁃ Spare paper for making notes during reading time
⁃ Not be given any crim pro legislation - they will give us
Schedule 1 of the Civil Procedure Act
⁃ Need all of the legislative provisions that have been referred to.
⁃ Will give us legislation that creates that offense
⁃ For civil section we will not be given any legislation - must
bring our own materials
⁃ No knowledge of substantive law
⁃ Reread and analyze the questions on the exam, make sure we
understand what its asking
⁃ Issue identification
⁃ Plan response separately
⁃ Use headings and sub headings
⁃ ID cases and legislation for use.
⁃ Attempt all parts of questions.
⁃ Necessary to attempt both sides of the argument - if asks for a
conclusion: make an assessment on which part is stronger.
⁃ Most common mistakes in answering problem questions
⁃ Apply law to facts after stating what the law is
⁃ Making a conclusion without analysis.
⁃ On answering essay questions
⁃ Define concepts in the essay
⁃ Use headings and subheadings
⁃ Marking
⁃ Must fill up the bucket.