Privilege AND Immunity PDF

Preview

Summary

Download Privilege AND Immunity PDF

Description

DRE 2019

Privilege PRIVILEGE

Common law privileges and immunities from production of documents may be claimed whenever information can be compulsorily demanded as long as the common law privilege has not been expressly removed by legislation. Privilege can be claimed in response to an attempt to access documents…  pre – trial (SCR 32)  non – parties (SCR 146).  automatic disclosure (SCR 136(1)(a))  further disclosure is ordered by the court (SCR 136(1)(b) ) When claiming privilege over documents must explain the basis for the claim in Form 20 list of documents. AFP v Propend Finance “The doctrine of legal professional privilege itself represents the balance struck between the interests of disclosure to the court and the interests of confidentiality.” Once a document is defined as PRIVILEGED there is no further “balancing exercise” – ie the court does NOT have discretion to order production of a document once it is decided that it is privileged. The purpose of creation of a document will “trigger” privilege. Privilege belongs to the client – not the lawyer or any third parties. Only the client can “claim” privilege

Legal Professional Privilege Advice/Communication Privilege  covers confidential communications between lawyer and client  for purpose of litigation or non-litigious matters  The lawyer must be acting in their capacity as a lawyer  historically NOT extended to documents created by a third party unless they were an agent Litigation Privilege  covers confidential documents prepared for proceedings on foot or in anticipation of legal proceedings  historically was broad enough to INCLUDE documents created by third parties provided they were under an obligation of confidence  applies when proceedings are underway or are reasonably anticipated Privilege only extends to legal practitioners operating as lawyers and does not extend to work done in their capacities other than as legal advisors (Waterford v Commonwealth (1987) 163 CLR 54).

1

DRE 2019

Privilege

Where communication between a lawyer and client is of a professional nature it is prima facie privileged (Dalleagles Pty Ltd v ASIC (1991) 4 WAR 325) Sole Purpose or Dominant Purpose Use less stringent dominant purpose test not sole purpose test from Grant v Downs. The privilege applies when the dominant purpose of the communication was to provide or obtain legal advice or for use in anticipated of exiting legal proceedings (Esso Australia Resources Ltd v Commissioner of Taxation (Cth) (1999) 168 ALR 123). Question of fact what the ‘dominant purpose’ is. It must be the ‘ruling, prevailing or most influential purpose’ (Singapore Airlines). Singapore Airlines Ltd v Sydney Airports Corporation Ltd [2004] NSWSC 380 - Singapore Airlines plane damaged at Sydney Terminal - Senior in house lawyer for Sydney Airports Corporation commissioned a report about the incident from a third party consultant - In the letter with which she commissioned the report, she stated ‘the report is commissioned in contemplation of litigation and anticipated legal liability’ - Sydney Airports claimed legal professional privilege over the report - The court decided there was at least 4 reasons the report was commissioned, only one of which was for the purpose of obtaining legal advice, the others were operational and management purposes. - None of the 4 reasons could be described as dominant - Sydney Airport Corporation could not satisfy the court that the dominant purpose of the report was for legal advice and therefore it was held not to be privileged. Test for Dominant Purpose Would the document have been created any way? Even if the document was sought to send to lawyers, if the party would have created it in any event (ie for tax, or OHS, or insurance purposes) then it won’t be privileged.  Asahi Holdings (Australia) Pty Ltd v Pacifica Equity Partners Limited (No 4)  Kuypers v Ashton Coal Operations Pty Ltd What was the intention of the person asking for or creating the document?  Singapore Airlines Copies Asahi Holdings v Pacific Equity Partners No 2 When determining privilege of a document you must look at the particular iteration of the document. In Asahi the parties focused on the reason for creation of an ORIGINAL report, which was obtained for the insurers. However the disputed communication was a copy of that report provided by the insurers to legal advisors for the purpose of obtaining legal advice. = two separate documents created for different purposes. Redacting • A document does not lose its privileged status just because it also contains non privileged material • Privileged parts can be blacked out or excluded from documents

2

DRE 2019

Privilege

For summary of privilege see Commonwealth of Australia v Sanofi (formerly Sanofi-Aventis) (No 2) [2017] FCA 711 Confidentiality A communication that is not confidential is not privileged even though it is between a solicitor and a client (Z v NSW Crime Commission (2007) 81 ALJR 651). Privilege does not attach if the communication involves something that occurred in public (J – Corp Pty Ltd v Australian Labourers Federated Union of Workers (WA Branch) [No 1] (1992) 38 FCR 452). When a third party is involved in the communication, privilege will usually only extend when that third party owed the client a duty of confidence. This only generally occurs only when those communications related to pending litigation (Ritz Hotel Ltd v Charles of the Ritz Ltd [No 22] (1988) 14 NSWLR 132). Players v Clone  A fundamental part of privilege is that the document is confidential.  A communication that is conducted in public or between opposing parties to litigation is NOT privileged because it is NOT confidential to the party claiming privilege.  Documents produced to support TAXATION OF COSTS by a party were NOT privileged after that use, because they were no longer confidential. The other party was able to demand production of those documents for the purpose of setting aside the earlier judgment.

Collateral Facts and Privilege Client’s name is not privileged (Hamden v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 1267). Whether a mobile phone number is privileged depends on the circumstances eg. if it was provided in confidence in connection with a request for legal advice and for the purpose of obtaining that advice it would attract privilege as it is not a ‘collateral fact’ (Hamden).

Privilege and Third Parties Historically the third party needed to be regarded as an agent of the client to attract advice/communication privilege. This was not the case for litigation privilege. Pratt Holdings Pty Ltd v Commissioner of Taxation (2004) 207 ALR 217 - Involved a complex taxation issue on which Pratt took advice separately from both their lawyers and accountants - Pratt commissioned an accountant’s report directly but the report was subsequently given to its lawyers to assist them in giving informed advice which they claimed privilege over - Initial decision by Kenny J was that privilege was limited to situations where an agency relationship exists 3

DRE 2019

Privilege

- In the appeal a year later the Full Court was of the view that where the dominant purpose of commissioning the report is to obtain legal advice on it, the privilege will be created - The purpose of the document, not the ultimate reference is the deciding factor

DSE (Holdings) Pty Ltd v InterTAN Inc [2003] FCA 1191 - InterTAN owned and operated the Tandy businesses in Australia - By a share acquisition agreement, DSE (which owned Dick Smith in Australia) acquired all of the shares in InterTAN - There was a dispute over this share acquisition agreement - InterTAN claimed privilege over a number of documents, including emails and other correspondence between InterTAN, its lawyers and/or its investment bank during the course of the share sale - The court was convinced the bank was acting as an agent of InterTAN - It was held that if a person is employed as an agent on the part of a client to obtain legal advice, the person stands in the same position as the client stands in relation to privilege - However, only communications that were for a dominant privileged purpose would attract privilege Asahi Holdings (Australia) Pty Ltd v Pacific Equity Partners Pty Ltd (No 4) [2014] FCA 796 - during a complex share acquisition Asahi retained several law firms as well as other advisory companies in areas such as finance, accounting and due diligence - Asahi claimed privilege over over a number of documents on the basis that o The documents were created so Asahi could obtain legal advice o They contained or summarised legal advice already obtained o Third party advisors were subject to confidentiality agreements in relation to those communications - The court came to the consensus that each document should be reviewed separately. They found that generally… o Internal emails within the third party organisations were not privileged o Where third parties has just re – drafted attachments or had discussed broader topics than legal advice they were not privileged, even if they referred to legal topics o Emails that were initiated by Asahi’s lawyers, referred to specific legal advice of their lawyers, or were for the dominant purpose of legal advice were privileged Dominant Purpose and Third Parties Pratt Holdings  AGENT directed to prepare a document on behalf of principle and provide to lawyer = privileged  THIRD PARTY (not an employee) of the principle directed to prepare a document FOR THE PRINCIPLE and the PRINICIPAL provides to the lawyer = Privilege  THIRD PARTY (not employee) prepared document as directed by principal and provides DIRECTLY to lawyer is ONLY privileged if the communication enabled the 4

DRE 2019

Privilege

principal to make the communication NECESSARY to get the legal advice they needed. THIS WILL BE DETERMINED ON THE FACTS – it is NOT axiomatic Asahi Holdings (4) On the FACTS, dominant purpose may be readily inferred given the directness of the communication from the third party to the lawyer; EVIDENCE of the purpose can be given by the party OR the third party. Not from the lawyer, as the lawyer was not party to the arrangement.

In – house Lawyers ‘The fact that an in – house solicitor is entitled to claim privilege on behalf of his or her employer client is now well established’ (Sydney Airports Corporation Ltd v Singapore Airlines Ltd and Qantas Ltd [2005] NSWCA 47, confirmed in Commonwealth and Air Marshall McCormack v Vance [2005] ACTCA 35). Look to the company’s purpose of commissioning report rather than the in house lawyers (Singapore Airlines). Tamberline J said it is a matter of ‘fact and degree and involves a weighing of the relative importance of the identified purpose’ (Seven Network Ltd v News Ltd) Failure to hold a practicing certificate is not fatal to a claim of privilege, however it could be a very ‘relevant fact’ to take into account when determining whether an in – house lawyers was ‘acting in accordance with appropriate professional standards and providing the independant professional legal advice such that would attract a claim for privilege’ (Commonwealth and Air Marshall McCormack v Vance [2005] ACTCA 35) AG for NT v Kearney In house lawyers are in the same position as private practitioners provided:  They are INDEPENDENT from client pressure  The conduct their relationship like a lawyer/client relationship Gaynor v Chief of the Defence Force (No 2) [2015] FCA 817 Summary of Law: - Privilege can attach to internal and external communications prepared for litigation and can include strategic advice of legal officers within the Defence Force relating to the management of the legal issues - All legal officers held current practicing certificates and met the tests for exercising independent legal judgement set out in Waterford v Commonwealth - It was a matter of fact to determine if the officers and exercised that degree of independence which was determined both by their status as lawyers and by examination of their actual role within the organisation

Continuum of Advice

5

DRE 2019

Privilege

A group of communications, some of which contain legal advice, some of which contain comments or information can collectively attract privilege as a ‘continuum of information’ (Balabel v Air India [1968] Ch 317) This sentiment was echoed in BHP Billiton Olympic Dam Corporation v Bluestone Apartments Pty Ltd [2013] SASC 64 in relation to documents created during the drafting of the deed governing a major project that included communications between senior BHP executive and their in – house legal lawyers. Continuum argument deals “one to one” links between lawyer and client. If non legal advisors are interposed in multidimensional communicators, the continuum is likely to be broken ( Asahi No 4)

Anticipation of Legal Proceedings Litigation privilege can attach to documents prepared for litigation which has commences or prepared because a party has reasonable apprehension of being sued even if the case has not yet commenced (Alfred Crompton Amusement Machines Ltd v Customs and Excise Commissioners (No 2) [1974] AC 405). Requires an objective assessment that there is a reasonable likelihood that litigation will be initiated (ACCC v Aust Safeway Stores (1997) 153 ALR 393). Litigation is anticipated if there is a ‘real prospect’ of it rather than a ‘mere possibility’, it must be ‘more likely than not’ (Mitsubishi Electric Australia Pty Ltd v Victorian Workcover Authority (2002) 4 VR 332). Singapore Airlines  There was a collision between an air bridge and a plane.  The on site manager of the Sydney Airport did an investigation. The Airport claimed PRIVILEGE because the report was obtained in anticipation of litigation.  The Court did not uphold. Said that there were other reasons for the investigation, to find out what happened, for insurance purposes, and that it was too soon to anticipate litigation. Yes litigation MIGHT ensue, but far too early to say.

Waiver of Privilege Disclosure beyond the confidential lawyer client relationship often gives rise to arguments for waiver of privilege.

Behaviour Inconsistent with Privilege Goldberg v Ng (1995) 185 CLR 83 - Respondents were former clients of Goldberg

6

DRE 2019 -

-

Privilege

Claimed they had paid him $100,000 for his services and subsequently initiated proceedings in the Supreme Court of NSW to recover this amount on the basis that Goldberg had failed to account for it They also filed a complaint with Law Society of NSW which was investigated and dismissed The respondents later issued a subpoena to the Law Society in response to the complaint Goldberg claimed these documents were subject to legal professional privilege Majority held there was an imputed waiver of legal professional privilege and therefore the documents were subject to production Fairness the central consideration in determining whether privilege has been waived Not fair for Goldberg to seek to rely on the documents in relation to one proceeding but rely on privilege to prevent their production in another Operative question – whether conduct of the client can be regarded as inconsistent with continued maintenance of the privilege.

Mann v Carnell [1999] HCA 66 - Test is not a general principle of fairness but instead an evaluation of inconsistency between the conduct of the client and the continued maintenance of confidentiality - Dr Mann applied to the Supreme Court of the ACT for pre – trial discovery of documents - Dr Mann wanted to evaluate a potential defamation claim against the Chief Minister of the ACT - This defamation was meant to have arisen when the Minister have copies of legal advice concerning Dr Mann to a member of the Legislative Assembly of the ACT - These documents had legal professional privilege so the question was whether that privilege by the Minister to Mr Moore - Majority found no inconsistency with the continued maintenance of privilege - if parties have a common legal interest it may be inappropriate to hold that disclosure amount to waiver of privilege Mann v Carnell test was confirmed by Allsop J in DSE (Holdings) Pty Ltd v Intertan Inc [2003] FCA 384. Revealing Privileged Content ‘[I]n order to ensure that the opposing litigant is not misled by an inaccurate perception of the disclosed communication, fairness will usually require that waiver as to one part pf a protected communication should result in waiver as to the rest of the communication on that subject matter’ (Mason and Brennan JJ in Attorney – General (NT) v Maurice [1986] HVA 80) ‘there are…no considerations of fairness which require that compliance by a party with a procedural requirement that he prepare and make available a document setting forth the case which he proposes to make before a court or quasi – judicial tribunal should be treated as a waiver of his right to claim legal professional privilege in respect of all the material upon

7

DRE 2019

Privilege

which he has relied in the preparation of that document’ (Deane J in Attorney – General (NT) v Maurice [1986] HVA 80)

Publicising the Content of a Document The disclosure of the substance or gist of the advice through publication is not necessarily inconsistent with the maintence of the conflidentiality which privilege protects (Osland v Secretary, Department of Justice [2008] HCA 37) pg. 239 – 240 TB

Disclosure Beyond Lawyer Client Relationship If a common legal interest is not shared between the party to the litigation and the third party, the disclosure to the third party was voluntary and the party has no control over how the document will be used privilege is not maintained ( Asahi Holdings) If documents are distributed to executives within the company party to the proceedings privilege is maintained as they are ‘directing mind and will’ of the party ( BHP Olympic Dam)

Reference to Privileged Material in Court If a document is used by a witness to refresh their memory is privileged then the privilege is lost once the relevant evidence is given. If the document is not privileged opposing counsel is entitled to call for it and inspect it (Mancorp Pty Ltd v Baulderstone Pty Ltd (t/a Baulderstone Homibrook (1991) 57 SASR 87) A witness revealing legal advice in cross examination does not amount to a waiver of privilege when that legal advice has not contributed to their state of mind (Gough) If the material is adduced in evidence or disclosed in a statement, then the confidentiality of that material no longer exists, and fairness dictates that communications dealing with that subject matter no longer attract legal professional privilege, as there had been an imputed waiver in respect of them (R v Haydon (No 5) [2005] SASC 19)

Tendering of Privileged Documents Once access has been gained to a privileged document that material can be used, for example tendered as admissible evidence. If privileged documents are mistakenly given to an opponent the rules of legal professional privilege no longer apply even though there has been no waiver (R v Tompkins) Where a party makes partial disclosure of privileged material because it is required by law there may be an imputive waiver of the privilege over other parts of the material where fairness requires that the court or the other party should be able to check that proper disclosure as required by law has been made ( R v Haydon (No 5) [2005] SASC 19)

8

DRE 2019

Privilege

Privilege and Taxing of Costs In a taxation of costs if you want to recover costs for any particular work done you must produce the documentation supporting it (Giannarelli v Wraith (1991) 171 CLR 592)

Equitable Application for Return of Privilege May make an application to the court for an injunction preventing the use of the privileged document, and for the return of the privilege. 


<...