Week 5 Lecture Notes: Privilege, Witness Evidence and Tribunals

Week 5 Overview: Privilege, Witnesses, and Tribunals

  • Focus on privilege, witness evidence, and tribunal procedures.
  • Emphasis on Evidence Act 1995 (NSW).

Privilege: Key Types

  • Client Legal Privilege (CLP): Most common and important.
  • Negotiations Privilege: Protects settlement negotiations.
  • Public Interest Immunity (PII): Balances secrecy vs. public interest.
Other Relevant Privileges
  • Journalist privilege
  • Privilege against self-incrimination
  • Religious confession privilege
  • Professional confidential relationship privilege
  • Special privilege types (e.g., sexual assault counseling privilege).
  • Statutory discretion to exclude prejudicial evidence (ss 135-136 Evidence Act).
  • Commercial confidentiality and penalty privilege (Fair Work Ombudsman v Hu).

Context for Claiming Privilege

  • Relevant for documents produced in:
    • Discovery exams
    • Subpoenas
    • Interrogatories or Notices to Admit
    • Notices to Produce

Applicable Law for Privilege

  • Governed by the Evidence Act 1995 (NSW) and Evidence Act 1995 (Cth).
  • Interrelated with Civil Procedure Act and Uniform Civil Procedure Rules.
  • Common law continues to influence the application despite legislative efforts.

Complexities Introduced by Section 131A

  • Sections s118 (CLP), s130 (PII), and s131 (NP) applied only to trial proceedings until s131A.
  • Now includes pre-trial applications where the producer of a document can claim privilege.
  • Affirmed by cases like Singtel v Weston and Griffiths v German.

Client Legal Privilege (CLP)

  • Comprised of two types:
    1. Legal Advice Privilege (s118, Evidence Act): Protects confidential communications with a lawyer for legal advice purposes.
    2. Litigation Privilege (s119, Evidence Act): Protects communications for the purposes of existing or anticipated litigation.
Elements of Client Legal Privilege
  1. Existence of a confidential communication or document.
  2. Lawyer-client relationship must be established.
  3. The dominant purpose for the communication must be for legal advice or litigation.
Test of Privilege Based on Purpose
  • Dominant Purpose Test: Determines applicability of privilege; the communication's purpose must be for legal advice or use in litigation.

Waiving Privilege

  • Waiver can occur through:
    • Intentional disclosure (case reference: Osland v Secretary to the Dept of Justice).
    • Inadvertent waiver: Courts generally reluctant to find waiver unless clear.
    • Issue waiver due to inconsistency in claiming privilege (Hine v NSW Land and Housing Corp).

Negotiations Privilege

  • Protects communications made during attempts to settle disputes (s131, Evidence Act).
  • Does not apply to negotiations unrelated to dispute settlement (e.g., commercial negotiations).
Key Cases Related to Negotiations Privilege
  • Field v Commissioner for Railways: Admission made during negotiations not protected.
  • Kelly & Lomax: Application of negotiations privilege where communications were attempts to defraud creditors, thus not privileged.

Public Interest Immunity (PII)

  • Protects information from disclosure where it serves the public interest to keep it secret.
  • Balancing test critical, weighing public interest in disclosure against the reasons for non-disclosure.
Examples of Public Interest Immunity Cases
  • M47 v DG of Security: Case involving national security and confidentiality.
  • Glencore International v CT: Discusses the limits of privilege in the context of documents obtained illegally.

Witness Evidence Preparation

  • Affidavits and expert reports are crucial in court proceedings; must adhere to evidence rules to avoid hearsay.
  • Importance of direct speech in affidavits to ensure accuracy and prevent misrepresentation.
Special Considerations for Witnesses
  • Lay witnesses provide fact evidence, while expert witnesses provide opinion evidence based on expertise.
  • Challenges include expense and perceived bias in expert testimony.

Tribunal Procedures and Their Distinctions

  • Statutory tribunals operate under reduced rules of evidence and lack of entitlement to costs in most cases.
  • The NSW Civil and Administrative Tribunal (NCAT) covers numerous dispute areas with varied jurisdiction.
Recent Developments
  • The Administrative Review Tribunal (ART) replaced the Administrative Appeals Tribunal as of October 14, 2024.
  • Importance of tribunal jurisdiction in deciding disputes, as clarified by cases like Burns v Corbett.

Legislative Framework and Policy Considerations

  • Privilege laws serve to support open communication between lawyers and clients, promoting fair legal processes.
  • Ongoing balance necessary between confidentiality and public interest needs in legal contexts.