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Privilege Notes

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This is an extract of our Privilege document, which we sell as part of our Civil Procedure Notes collection written by the top tier of University Of Sydney students.

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VIII. Privilege

Introduction

Note there are other privileges and other bases for excluding potential relevant evidence:

* Journalist privilege

* Privilege against self incrimination

* Religious confession privilege

* Professional confidential relationship privilege

* Sexual assault counselling privilege

* Statutory discretion to exclude prejudicial evidence s135--s136 Evidence Act

* Commercial confidentiality

Asserting privilege is a way for a party to resist producing documents in the discovery process. Three main types of privileges prevent disclosure of information (either oral or in writing):

* Client legal privilege (most common and important): CLP

* Public interest immunity: PII

* Negotiation privilege: NP They have different tests to determine whether privilege attaches. All policies behind the privileges are different. All derive from the common law (but are now contained in the Evidence Act 1995 (NSW)) Apply to civil and criminal cases. Context of a claim for privilege

* In response to an order for discovery:
by listing a document as a "privileged document": UCPR r 21.3
a list of documents giving discovery must identify any document that is claimed to be a privileged document and specify the circumstances under which the privilege is claimed to arise: UCPR r 21.3(2) (d)
If the party seeking discovery wishes to challenge a claim for privilege then that party needs to file and serve a notice of motion seeking an order that the relevant document be produced for inspection.

* In response to a subpoena seeking production of documents:
a privilege can be raised to avoid the production of documents to the court by seeking an order that documents need not be produced (an objection to production);
or a privilege claim can be raised to prevent the party who issued the subpoena from assessing the documents that have been produced (an objection to inspection)

* To object to answering interrogatories by privilege: UCPR r 22.2(c)
The party seeking the answer to the interrogatory could file a notice of motion for an order for a further answer to the interrogatory.

* In response to a notice to produce: r 21.11(b)(i)
resist production

68 Attendance at court and production of documents and things to court Subject to rules of court, the court may, by subpoena or otherwise, order any person to do either or both of the following: (a) to attend court to be examined as a witness, (b) to produce any document or thing to the court.

or resist access / inspection of the documentary

* To object to an order to produce or inspect documents made by the court under s 68 of the CPA

* To resist other forms of compulsory acquisition of documents e.g., search warrants and search order under the UCPR.

* In the trial, at the time when evidence is "adduced":
as the basis for an objection to the tender of a document during a hearing (this is at a time when evidence is "adduced")
as the basis for an objection to the oral examination of a witness during a hearing, Related Legislation

When do privileges in Evidence Act (ss 118, 119, 130 and 131) apply?
All these sections apply when evidence is being "adduced".

* Evidence Act

* Evidence Act provisions s 118, 119 (Client Legal Privilege), s 130 (Public Interest Immunity) and s 131 (Negotiation Privilege) were originally held to only apply to trial proceedings. 1

VIII. Privilege

s 131A expanded the operation of those section to pre-trial proceedings.

* Civil Procedure Act / Uniform Civil Procedure Rules

* Common Law

* Legislators keep trying to make it entirely legislated but judges keep applying common law.
Evidence Act covers most privilege in NSW these days. EVIDENCE ACT 1995 (NSW) Limitation about s 131A:

* s 131A defines "disclosure requirement" as a process or order of a court that requires the disclosure of information or a document.This means that s 131 A does not appear to apply to investigatory or non-curial processes.

* s 131 only applies when the "person" required by a disclosure requirement to give information or to produce a document, is the "person" who also objects (by making a privilege claim) to giving that information or providing that document: NSW v Public Transport Ticketing
[2011]: Xu Yao Gao Zhi [?] Ren He Shen Qing Wei Quan Zhe Bi
Xu Wei 1[?] Ren

* This section has also been held to apply only at the stage of objection to production under court subpoena (it does not apply at second stage where inspection is sought of document produced, in other words, access to document or photocopying documents should be dealt under common law): Waugh Asset Management v Merrill Lynch [2010].
But the case Singtel Optus Pty Limited v Weston [2010] held the different view (in this case, the judge held that the disclosure of document should extend to the entire process. In his view, where the objection to inspection is taken by the person required to produce the document on subpoena or notice to produce, the Evidence Act 1995 and not the common law, applies).

"Privileged document" or "Privileged information" is used in UCPR r 5.7, 21.5,

21.6, 21.11, 22.2

* r 5.7: Preliminary discovery and inspection (IV_3)

* r 21.5: Discovery, make documents other than the privilege documents, available: r

21.5(2) (VII_3)

* r 21.6(b): when the privilege documents is actually not a privilege documents or ceases to be a privilege document.

* r 21.11: object to Notice to Produce: r

21.11(b)(i), (VII_9)

* r 22.2: Objection to specific interrogatories, r 22.2(c), the answer to interrogatories could disclose privilege information.

131A Application of Part to preliminary proceedings of courts (1) If: (a) a person is required by a disclosure requirement to give information, or to produce a document, which would result in the disclosure of a communication, a document or its contents or other information of a kind referred to in Division 1, 1A, 1C or 3, and (b) the person objects to giving that information or providing that document, the court must determine the objection by applying the provisions of this Part (other than sections 123 and 128) with any necessary modifications as if the objection to giving information or producing the document were an objection to the giving or adducing of evidence. (2) In this section, "disclosure requirement" means a process or order of a court that requires the disclosure of information or a document and includes the following: (a) a summons or subpoena to produce documents or give evidence, (b) pre-trial discovery, (c) non-party discovery, (d) interrogatories, (e) a notice to produce, (f) a request to produce a document under Division 1 of Part 4.6. UNIFORM CIVIL PROCEDURE RULES 2005

1.9 Objections to production of documents and answering of questions founded on privilege (1) This rule applies in the following circumstances: (a) if the court orders a person, by subpoena or otherwise, to produce a document to the court or to an authorised officer, (b) if a party requires another party, by notice under rule 34.1, to produce a document to the court or to an authorised officer, (c) if a question is put to a person in the course of an examination before the court or an authorised officer. (2) In subrule (1), "authorised officer" means: (a) any officer of the court, or (b) any examiner, referee, arbitrator or other person who is authorised by law to receive evidence. (3) A person may object to producing a document on the ground that the document is a privileged document or to answering a question on the ground that the answer would disclose privileged information. (4) A person objecting under subrule (3) may not be compelled to produce the document, or to answer the question, unless and until the objection is overruled. (5) For the purpose of ruling on the objection: (a) evidence in relation to the claim of privilege may be received from any person, by affidavit or otherwise, and (b) cross-examination may be permitted on any affidavit used, and (c) in the case of an objection to the production of a document, the person objecting may be compelled to produce the document. (6) This rule does not affect any law that authorises or requires a person to withhold a document, or to refuse to answer a question, on the ground that producing the document, or answering the question, would be injurious to the public interest.

2 VIII. Privilege

Client Legal Privilege Client Legal Privilege (Legal Professional Privilege) is a privilege which attaches to confidential communications between a client and the client's legal adviser for the dominant purpose of giving or receiving legal advice, or for use in actual or anticipated litigation: Esso v Federal Commissioner of Taxation [1999]

* Legal Advice Privilege: s 118 Evidence Act

* Litigation Privilege: s 119 Evidence Act The HC in Mann v Carnell (1999) and Esso v FCT identified CLP as a fundamental human right, not just a procedural right. This elevation has unexplored possible consequences. Rationale of Client Legal Privilege:

* Adversary system

* Open communication between lawyer and client

* Protecting confidences of the client

* Public interest arguments

* Individual rights: seen as a right rather than a procedural or evidential rule: AFP Commissioner v Propend (McHugh J) Purpose of Legal Privilege

* Promotes public interest by assisting administration of justice by facilitating the representation of clients by keeping secret their communications to encourage full and frank disclosure: Grant v Downs The privilege involves a fundamental policy clash between (i) the need for all relevant information to be available before the court, such that the truth is paramount, and (ii) the need for the freedom of communication between a legal adviser and a client, because the law is complex and difficult: Baker v Campbell (1953) Test of whether the communications is for the dominant purpose of advice or litigation: Esso v FCT (see page 5) Element of Client Legal Privilege:

* Confidential communication or document

* Lawyer and client relationship

* Dominant purpose of the communication is for existing or anticipated litigation, or for legal advice. CLP for third party documents

* Legal professional privilege extends to a confidential communication prepared by a third party (regardless of the third party's relationship with the client) and provided to the client, so long as the communication was prepared and made with the dominant purpose of its being used by the client to make the necessary communication with the client's legal adviser to obtain legal advice. EVIDENCE ACT 1995 (NSW)

Whose privilege? --> Client's

* Lawyers must protect their clients' privilege

* The privilege holder owns the privilege.

* Only the privilege holder is entitled to waive the privilege

* The privilege holder (i.e., the recipient of the legal advice) isn't always a litigant.

117 Definitions (1) In this Division: "client" includes the following: (a) a person or body who engages a lawyer to provide legal services or who employs a lawyer (including under a contract of service), (b) an employee or agent of a client, (c) an employer of a lawyer if the employer is: (i) the Commonwealth or a State or Territory, or (ii) a body established by a law of the Commonwealth or a State or Territory, 3

VIII. Privilege

Not all the communications between legal adviser and client are confidential. Therefore, non-confidential communications are not protected: Packer v DCT (1984)

Examples of Confidential communication or Confidential documents:

* Communication between lawyer and client (letter to a client).

* Lawyer and a third party (lawyer's letter to expert witness)

* Third party (expert witness report)

(d) if, under a law of a State or Territory relating to persons of unsound mind, a manager, committee or person (however described) is for the time being acting in respect of the person, estate or property of a client-a manager, committee or person so acting, (e) if a client has died-a personal representative of the client, (f) a successor to the rights and obligations of a client, being rights and obligations in respect of which a confidential communication was made. "confidential communication" means a communication made in such circumstances that, when it was made: (a) the person who made it, or (b) the person to whom it was made, was under an express or implied obligation not to disclose its contents, whether or not the obligation arises under law. "confidential document" means a document prepared in such circumstances that, when it was prepared: (a) the person who prepared it, or (b) the person for whom it was prepared, was under an express or implied obligation not to disclose its contents, whether or not the obligation arises under law. "lawyer" means: (a) an Australian lawyer, and (b) an Australian-registered foreign lawyer, and (c) an overseas-registered foreign lawyer or a natural person who, under the law of a foreign country, is permitted to engage in legal practice in that country, and (d) an employee or agent of a lawyer referred to in paragraph (a), (b) or (c). "party" includes the following: (a) an employee or agent of a party, (b) if, under a law of a State or Territory relating to persons of unsound mind, a manager, committee or person (however described) is for the time being acting in respect of the person, estate or property of a party-a manager, committee or person so acting, (c) if a party has died-a personal representative of the party, (d) a successor to the rights and obligations of a party, being rights and obligations in respect of which a confidential communication was made. 118 Legal advice Evidence is not to be adduced if, on objection by a client, the court finds that adducing the evidence would result in disclosure of: (a) a confidential communication made between the client and a lawyer, or (b) a confidential communication made between 2 or more lawyers acting for the client, or (c) 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, or one or more of the lawyers, providing legal advice to the client. 119 Litigation Evidence is not to be adduced if, on objection by a client, the court finds that adducing the evidence would result in disclosure of: (a) a confidential communication between the client and another person, or between a lawyer acting for the client and another person, that was made, or (b) 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 proceeding before the court), or an anticipated or pending Australian or overseas proceeding, in which the client is or may be, or was or might have been, a party.

Mei You Lu Shi

120 Unrepresented parties (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 4

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