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Privilege Notes

Law Notes > Evidence and Criminal Procedure Notes

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

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PRIVILEGE Client Legal Privilege X will argue that [evidence] is privileged under section 118 and 119 of the Evidence Act. Under this section [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 confidential communication made between [client and lawyer/2 or more lawyers acting for the client] or the contents of a confidential document prepared by the [client/lawyer or other person]. This information, in order to be subject to privilege must be for the dominant purpose of [the lawyer/one or more of the lawyers] providing legal advice to [client]. Dominant purpose will mean the purpose which was the ruling, prevailing or most influential purpose (Fed. Comm. Tax v Spotless Services). Confidential communication means a communication which was made when the person who made it or the recipient was under an express or implied obligation not to disclose its contents. Has the lawyer sought advice of a third party?
In situations where a lawyer seeks advice from a third party in order to provide legal advice for their client, if the communication is for the dominant purpose of legal advise then it is privileged.

Carter v Managing Partner (1995) 153 CLR 500 Held: The principle reason the law recognises this privilege is to protect the frankness of the relationship between a client and a lawyer. It is there to encourage clients to be honest with their lawyers and to encourage lawyers to be honest with their clients. The High Court held that the defendant on a criminal charge cannot compel the production of privileged documents even though they may establish his innocence or materially assist his defence. McHugh J said at 166: "It is the communication and not the document that needs and is given protection." Kennedy v Wallace (2004) FCAFC 337 Facts: The client in this case made notes when he was outside of Australia. He was going to seek advice from a lawyer in Switzerland. Held: At first instance the Federal Court held that this was not privileged as the notes were not made for the dominant purpose of legal advice. The Federal Court also held that communication with foreign lawyers was not privileged. On appeal to the full federal court it was upheld that whilst the notes were not made for the dominant purpose of legal advise they disagreed that communication with a foreign lawyer was not privileged. They held that this privilege is not limited to communication with Australian lawyers Is the client selfrepresented?
Under section 120, the same applies to a litigant who is selfrepresented in that the communication between the litigant and another person will be privileged where the dominant purpose is for preparing for or conducting the proceeding. Has client legal privilege been waived?

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