LAWS1014 TUte 9 On call - tutorial work week 9 PDF

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LAWS1014 TUte 9 On call 1. Subpoena to produce documents served on the law firm s131A (2) (a), - a disclosure requirement Party claiming privilege bears the ons of establishing the basis of the claim (Mitsubishi Electrict Australia v Victorian WorkCOver Authhoity) (a) Issue: is whether advice for the plaintiff on whether his claim has reasonable prospects of success prepared by a law student who was on work experience at Brown’s Lawyer is privileged.

Rule:, Since the client has already filed a statement of claim that pleads negligence against the State Rail Authority signifying a real prospect of litigation (Mitsubishi Electric Aust v Victorian WorkCOver Authority), this document is subject to litigation privilege outlined in s119 of the Evidence Act. S117 is used to define the terms, specifically, confidential communication requires the person who made it or the person to whom it was made was under an express or implied obligation to not disclose its content, whether or not the obligation arises under the law. The term lawyer refers to an Australian lawyer, a foreign lawyer, or an employee or agent of either of them. For a litigation privilege to arise, s119 (a) requires the document to arise out of a professional relationship between lawyer and client, (a) and (b) require it to constitute confidential communications (either oral communications or documents) and lastly, the document should be created for the dominant purpose of the client being provided with professional legal services relating to both domestic and overseas proceedings or anticipated proceeding. 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 ( to balance both the need to protect lawyer-client communication and the efficient administration of justice.

) 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. S131A of EA- right of privilege in pre trail proceedings Application: Although the document was produced by a student, the student could be classified as an agent of the lawyer at the Brown Lawyers law firm. Therefore, a professional relationship arises. The student who made the communication was under an implied obligation to not disclose its content to others. According to Mitsubishi Electric Australia v Victorian WorkCOVoer, If a document is commissioned by solicitors, it is usually taken to be prepared for the dominant purpose of legal advice/litigation. Otherwise, to establish the dominant purpose of the document, using the dominant purpose test in Esso Australia resources v Commissioner of taxation, dominant purpose is determined objectively but the subjective intention of the person responsible for the document coming into existence was entitled to weight (Mitsubishi Electric v Victorian Workcover Authority; Qantas Sydney Airports corporation Ltd v Singapore Airlines and Qantas Airways LTd). Arguably, a

document produced by a student in the law firm on the reasonable prospect of success satisfies the dominant purpose test. Conclusion: therefore the document is privileged.

(b) Issue: is a letter from brown lawyers to the plaintiff in relation to the outcome of criminal proceeding which took place on or about February 2014 when we acted for our client when he was convicted of an assault in a pub fight? Rule above applies. Application: a professional relationship exists as this was a confidential communication between the client and another person (third party). Regarding the dominant purpose test, a client legal privilege would not arise since the document was not prepared for the dominant purpose of lawyer providing professional legal services relating to existing or contemplated litigation (page 850 textbook) That said, if the letter was submitted by the client to us for the purpose of seeking legal advice in relation to the effect of his past conduct on the current litigation, then a client legal privilege may arise. Conclusion: not privileged. ( c) a draft expert report by Mr Whistle. Application: The main issue is whether the draft expert report was created for the dominant purpose of lawyer providing professional legal service in accordance with s119, this depends on the intention behind the creation of the draft report (Esso Australia resources v Commissioner of taxation, New Cap Reinsurance Corporation Ltd (in Liq) v Renaissance Reinsurance [2007] NSWSC 258 at [30] and sections 118 and 119 of the Evidence Act 1995 (NSW) If the report was created to set out the evidence expected to be provided in the final

report and in court by the expert, privilege will not apply. However, if it was created in order to communicate the report to legal counsel for consideration and comment, privilege will apply. Assuming the latter is the case here, then, it is privileged. (d) Draft witness statements from bystanders at the station who witnessed the accident. The main issue concerns the confidentiality of the information communicated as individual witness does not owe a duty of confidentiality to the party. Application: Resorting to the definition of confidential communication in s117, confidential communication only requires one of the parties: the person who made it or the person to whom it was made to be under an express or implied obligation to not disclose its content. So the legal adviser is under an obligation to not disclose its content. Therefore, the draft witness statements could also be privileged. (e) Senior Counsel’s memorandum of advice on quantum claim. Senior counsel briefed, on behalf of the P to advise on the value on the claim. The work exp law student accidentally faxed this advice to Tran Lawyers

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Application: the professional relationship is established as this is communication between the lawyer acting for the client with a third party, the dominant purpose test is satisfied since the memorandum serves the dominant purpose of providing professional legal service to the client relating to an anticipated proceeding. The issue is that the memorandum of advice is no longer confidential, and may be considered as a waiver of privilege under s122 on the basis of inconsistency with the maintenance of communication confidentiality. According to Mann v Carnell in which the respondent, a minister, disclosed confidential communications regarding litigation against the appellant to another MP. It was held that the mere fact that a person disclosing confidential information to a third party does not always mean that they forfeited their privilege, they referred to Jordan CJ in Thomason v The Council of the Municipality fo Campbelltown in paragraph 30 of the case, “the mere fact that a person on some on one occasion chooses to impart to another or others advice which he has received from his solicitor indicated no intention on his part to waive his right to refuse on other occasions to disclose in evidence what that advice was”. Therefore in this case, email directed at a third party would not amount to an inconsistency with the maintenance of communication confidentiality. Privilege is not waived. Legal ethics

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(f) A photocopy of the plaintiff’s ATAR. The main issue is whether the photocopy of the plaintiff’s ATAR satisfies the dominant purpose test. Although the ATAR itself is non privileged, according to Commissioner Australian Federal Police v Propend Finance, copy of a non-privileged document can still be privileged if the copy itself was made for the dominant purpose of legal advice or litigation. Therefore, if the copy is produced for the dominant purpose of the client receiving legal advice from lawyer or providing professional legal service to the client, quantum claim- aspirational student the document is privileged. 2.

Defendant’s expert report,

The defendant’s solicitors, on behalf of SRA, have written to our client in the following terms. The conclusion of the expert advice, the expert advice. Have they acted inconsistently according to 122? Privilege has not being waived as there has not being details disclosed....