CLPwatch - Case Summaries 2010

Summaries

Clifford v Vegas Enterprises Pty Ltd (No 2) [2010] FCA 36 (3 February 2010)

In proceedings in the Family Court of Western Australia, the applicant sought to tender a third party affidavit - the affidavit of Mr Pickup. The affidavit was provided to the applicant's wife (the opposing party in that dispute) and to the Court, but the proceedings were settled before a ruling was made on its admissibility.

In the current proceedings, the applicant refused to disclose a copy of the affidavit to the second and third respondents on the basis that it is protected by litigation privilege.

The issue in these proceedings is whether the copy affidavit attracted privilege and, if so, whether privilege was waived when the applicant gave the affidavit to the opposing party - his wife.

Priceline v Vegas Enterprises Pty Ltd (No 2) [2010] FCA 36 (11 March 2010)

The applicant claimed that the respondents waived privilege in respect of a legal advice by means of disclosures made in a letter 14 July 2008, and in the pleadings of the second and third respondents.

Since questions of disclosure are a matter of degree, the reasoning in this case sought to further resolve the boundary between a reference to legal advice that waives privilege and one that does not. In order to determine whether the disclosure was inconsistent with the confidentiality of the advice, Justice Croft compared the words used in the relevant letter and pleadings to the disclosures in analogous cases to determine whether the ‘substance' of the legal advice had been revealed.

Zentai v Honourable Brendan O'Connor (No 2) [2010] FCA 252 (19 March 2010)

The delegate of the Attorney-General decided to surrender the applicant to an extradition request. The delegate was informed, in making his decision, by a Brief prepared by the Attorney-General's Department. The applicant initiated proceedings for judicial review of the decision, and the Brief was provided to the applicant but for two redacted sections dealing with earlier legal advices obtained by the Department, and over which the Department claimed client legal privilege. 

The applicant claimed that privilege did not attach the Brief because it could not properly be characterised as legal advice. In the alternative, the applicant claimed that the disclosure of the majority of the Brief was inconsistent with the confidentiality of the redacted portions of the document, and privilege was thus waived.

This judgment raises some interesting questions about what kinds of conduct may be classified as inconsistent with the maintenance of privilege, and how ‘unfairness' should inform the assessment of inconsistency.

Schulman v Abbott Tout Lawyers [2010] FCA 308 (31 March 2010)

The applicants initiated proceedings against the respondent solicitors in connection with legal advice given by the respondent. 

At the same time as the applicants were receiving legal advice from the respondent, they were also receiving legal advice from a second firm of solicitors. The respondent sought access to this separate advice, claiming that client legal privilege had been waived by reason of the applicants having acted inconsistently with maintaining the confidentiality of the advice.

The questions in this case were:

  1. whether the applicant put the content of separate legal advice into issue in pleadings that related to the legal advice of the respondent; and
  2. whether the descriptions in the applicants' List of Documents were sufficient to waive privilege.

Goldamere Pty Ltd v Metso Minerals Industries (No 2) [2010] TASSC 14 (1 April 2010)

The first respondent sought production of two privileged documents - a witness statement and report - from the third respondent. The first respondent claimed that privilege had been waived by the disclosure of two emails referring to the communications.

The question before the Supreme Court was whether the disclosure was sufficient to establish an inconsistency with the maintenance of client legal privilege in the documents.

Re Mohamed Haneef and Australian Federal Police [2010] AATA 514 (9 July 2010)

The primary issue in this case was whether the relevant communications were created for the dominant purpose of obtaining legal advice of for use in legal proceeding, or the non-privileged purpose of advancing the investigation of a crime.

The Tribunal accepted that a communication is not created for the dominant purpose of obtaining legal advice of for use in legal proceedings if there is no reasonable prospect that proceedings will occur.

The Tribunal found that the arrest and detention of an individual in connection with a terrorist offence was an event so notoriously likely to result in litigation, that one could readily infer documents created in the wake of the event were likely to have been created with the dominant purpose of legal proceedings (so long as the officers did not have an improper or collateral purpose).

This was so notwithstanding doubts about the legality of the arrest and detention, and despite the fact that the investigators had doubts that charges would ever be laid.

Ferella v Official Trustee in Bankruptcy [2010] FCA 766 (22 July 2010)

The applicant alleged that the respondent had improperly discharged its duties as a trustee. The respondent filed a Defence with the Court, stating that it was not in a position to do any of the things that the applicant alleged it should have done, or alternatively that it was not appropriate to do any of those things.

The Court rejected the applicants' contention that this Defence waived privilege over legal advice received by the respondent. Since the Defence did not plead reliance on legal advice in coming to the relevant views, and did not in fact even mention or advert to the existence of any legal advice in connection with the relevant views, the respondent could not be held to have put the contents of the advice into issue.

Griffiths v Rose [2010] FCA 964 (31 August 2010)

In this matter, the applicant sought access to communications between the respondents and their legal advisors in proceedings for judicial review of administrative decisions.
The applicant claimed that privilege could not attach to these communications because natural justice requires administrative decision makers to make available to the person affected by the decision adverse information that is credible, relevant and significant to the decision to be made.

The Court rejected the claim, finding that there was no binding authority for the proposition advanced by the applicants.

Dye v Commonwealth Securities Ltd (No 5) [2010] FCA 950 (1 September 2010)

This case dealt primarily with the question of the independence of in-house counsel.

Rich v Harrington (2007) 245 ALR 106 was distinguished on the facts, but Justice Katzmann also suggested, in obiter dictum, that this authority may have overstated the content of the requirement that legal professional privilege will arise only where the advice has an independent character.

While Rich v Harrington held that the particular allegations made against the client may have a bearing upon an in-house lawyer's capacity for independence, Justice Katzmann suggested that the High Court authority of Waterford v Commonwealth (1987) 163 CLR 54 requires nothing more than that the legal adviser be professionally qualified and acting in a professional legal capacity.

Since the respondent's lawyer had multiple responsibilities, her Honour inspected the documents to determine that he was acting in a legal capacity when the relevant communications were sent and received.

The Court also rejected the applicant's argument that the respondent had waived privilege by disclosing the communications to third parties, since these ‘third parties' belonged to the respondent's corporate group.

AED Oil Ltd & Ors v Elizabeth Back & Ors (No 3) [2010] VSC 403 (10 September 2010)

The claim for privilege in this case failed on three bases. First, the evidence submitted in support of the claims was inadequate and unacceptably general. Secondly, a number of the documents could not attract privilege because they recorded commercial exchanges, rather than legal advice. Thirdly, though some communications between the solicitor and client were found to be prima facie privileged, the privilege had been waived because a former officer of the client disclosed their contents.

This third finding was made after Judd J dismissed the defendant's argument that a former officer of the client had no authority to waive privilege over the relevant documents.

Media Ocean Ltd v Optus Mobile Pty Ltd (No 8) [2010] FCA 1049 (27 September 2010)

In this matter the respondent claimed that an affidavit filed by the applicants' solicitor put his state of mind into issue and thereby effected issue waiver over all communications evidencing matters referred to therein.

Justice Jagot established that the critical question was not whether the applicants put their state of mind in issue, but whether and to what extent they put the contents of the privileged communications in issue. It was found that the range of communications put into issue in the affidavit was much narrower than was claimed by the applicants.

Weston v Publishing and Broadcasting Ltd [2010] NSWSC 1288 (5 November 2010)

This decision looked at the circumstances in which filing evidence with the court may constitute a waiver of privilege.

The act of placing a communication before the court on a confidential basis upon an ex parte application would not normally be inconsistent with a continuing intention to maintain confidentiality. In this matter, however, the plaintiffs made their ex parte application for extension orders in the knowledge that the defendants had a right to seek - and were likely to seek - to have those orders discharged, at which time the privileged material would become the subject of an adversarial proceeding.

In these circumstances the plaintiffs' use of the material was held to be inconsistent with the maintenance of confidentiality in the material.

Brunswick Hill Apartments Pty Ltd v CGU Insurance [2010] VSC 532 (24 November 2010)

This ruling addressed the circumstances in which correspondence between an insurer and a third party in relation to an open insurance claim might be covered by litigation privilege.

Litigation privilege applies where documents are created for the dominant purpose of use in existing or reasonably anticipated litigation. The mere fact that the insurer is a loss-bearing entity that regularly litigates claims was held to be insufficient to establish that litigation is reasonably anticipated.

In light of the fact that there was no threat or insinuation of litigation in the correspondence between the parties, it was ruled that the dominant purpose for which the communications in question were created was the investigation of the indemnity claim. The possible use of the documents in litigation was merely a secondary or contingent purpose for their creation.

Allen v State of Queensland [2010] QSC 442 (26 November 2010)

This matter looked at the circumstances in which a document might be said to have been created for the dominant purpose of use in current or reasonably anticipated litigation: the litigation privilege. Notwithstanding that there had been no actual threat of litigation from the applicant when the documents were created, a number of factors showed that the respondent anticipated that there was a real prospect of litigation. These factors included the nature of the incident, the consequences suffered by the applicant, the assessment undertaken by doctors prior to engaging solicitors and the solicitors' assessment of the matter.

The judgment also considered the question of whether s 30 of the Personal Injuries Proceedings Act 2002 (Qld) should be read down in order to ensure that client legal privilege - an important common law right - was protected. The argument was rejected on the basis that the legislature clearly intended to abrogate client legal privilege in respect of, amongst other things, investigative reports.

  Gillies v Downer EDI Ltd [2010] NSWSC 1323 (3 December 2010)

The parties were in dispute over two matters involving client legal privilege.

First, the respondent resisted production of an un-redacted letter of voluntary disclosure to the ATO on the basis that it would reveal the contents of a privileged forensic report. The judgment concluded that sending the letter to the ATO did not waive privilege, because it could be regarded as a confidential communication under s 122(5)(a)(i) of the Evidence Act 1995 (NSW). It was held, however, that the respondent's use of an expert report that relied upon the ATO letter was inconsistent with maintaining privilege in the redacted part of the letter.

The second issue in contention was whether the applicant's affidavit, which referred to particular legal advice provided in a meeting with his solicitor, constituted waiver of privilege over all advice given at the meeting and the file note thereof. It was held that the affidavit affected waiver only with respect to legal advice mentioned in the deposition, and not over all advice given at the same meeting.