Week 5 Lecture Notes: Privilege, Witnesses, and Tribunals

Week 5 Overview: Privilege, Witnesses and Tribunals

  • Focus on three major areas regarding law and evidence: Privilege, Witness Evidence, and Tribunals.
  • Primarily based on the Evidence Act 1995 (NSW).

Privilege: Types, Purpose, and Key Concepts

  • Types of Privileges:
    • Client Legal Privilege (CLP) - most common/important.
    • Negotiation Privilege.
    • Public Interest Immunity.
  • Other types of privileges that may exclude evidence:
    • Journalist privilege
    • Privilege against self-incrimination
    • Religious confession privilege
    • Professional confidential relationship privilege
    • Sexual assault counseling privilege
    • Commercial confidentiality
    • Fair Work Ombudsman penalty privilege.

Context of a Claim for Privilege

  • Situations in which documents may be privileged:
    • Documents produced in discovery.
    • Documents produced under subpoena.
    • Responses to interrogatories or notices to admit.
    • Document requests through notices to produce.
    • Cross-examination during trial.

Governing Law for Privilege

  • Determined by:
    • Evidence Act 1995 (NSW)
    • Evidence Act 1995 (Cth)
    • Civil Procedure Act/Uniform Civil Procedure Rules
  • Laws originate from Common Law, affecting the litigation context.

Supporting Law Complexities (Section 131A)

  • Originally reviewed under trial proceedings, Section 131A extends its application to pre-trial.
  • Limitations of privilege claims defined by the interaction of sections (Singtel v Weston [2011], Griffiths v German [2017]).

Client Legal Privilege (CLP)

  • Two types:
    1. Legal Advice Privilege (s118 Evidence Act).
    2. Litigation Privilege (s119 Evidence Act).
  • Key Elements of CLP:
    1. Confidential communication or document.
    2. Lawyer-client relationship.
    3. Dominant purpose for legal advice or anticipated litigation.
Section 118 - Legal Advice Privilege
  • Prevents evidence disclosure of confidential communications with lawyers if it discloses:
    • Direct communication between client and lawyer.
    • Communication between lawyers for the client.
    • Contents of documents prepared for legal advice.
Section 119 – Litigation Privilege
  • Protects disclosures made for the dominant purpose of legal services in legal proceedings.
  • Includes communications between client, lawyers, and third parties.

Tests for Claiming Privilege

  • The purpose of the communication defines the applicability of privilege.
  • Key tests:
    • Dominant purpose for legal advice or litigation.
    • Communication cannot be remade for subsequent unrelated use.

Waiving Privilege

  • Loss of Privilege:
    • Can occur through intentional disclosure (s122 Evidence Act).
    • Inadvertent waivers recognized but generally reluctant to lose without clear intent.
  • Competitive cases demonstrating waiver include Osland v Secretary to the Dept of Justice and ERA v Armstrong.

Negotiation Privilege

  • Applies to communications created to negotiate settlement, as stipulated in section 131 Evidence Act.
  • Key exclusions (s131(2)) that annul privileges:
    • When parties consent or disclose to contradict previous doctrine.
    • If conduct reaches fraud or abuse of power.
Expert Witnesses
  • Critical in establishing facts or lending credence to the claims made in legal disputes.
  • Requirements for submitting expert reports per schedule 7(3) UCPR:
    • Clear articulation of opinion.
    • Identifiable qualifications of experts.
    • Declaration of comprehensive inquiries into the subject matter.
Tribunals and Simplified Evidence
  • Statutory bodies facilitate dispute resolution with streamlined evidence rules and likely lesser entitlements than formal courts (e.g., NCAT).
  • Jurisdiction may lead to complications, especially regarding representation and documentary evidence admission.
  • Recent jurisdictional clashes explored through Citta Hobart Pty Ltd v Cawthorn and Burns v Corbett cases emphasize the court’s oversight in ensuring tribunal boundary adherence.

Hybrid legal landscape

  • Struggles between client confidentiality (privilege) and public interest, especially in government-related cases and national security (e.g., M47 and M46 public interest immunity).
  • Ongoing challenges as seen in recent high-profile escape from privilege loss in various legal rounds and decisions through traditional and statutory interpretations.