Federal Litigation Section
Kentish Council v Bellenjuc Pty Ltd [2011] TASSC 58
(11 November 2011)
This matter determined that a disclosure in an expert report did not effect a waiver over the briefing material provided to the expert witness.
The Court found that the disclosure was voluntary in the sense that it is the party that chooses to serve and rely on a report in proceedings, and there is no sanction for a failure to do so. However, there is also a sense in which the disclosure was compelled, because the evidence would not be admissible without the relevant disclosure. The Court opined that ‘there is more of compulsion in the fact of compliance, than there is of voluntariness'. And found that ‘[t]here is unlikely to be inconsistent conduct where a proof is served which sets out matters in compliance with the rules'.
The Court further found that there was no unfairness occasioned by the partial disclosure in the proof of evidence, because the proof did not provide a misleading or partial picture, and a true understanding of what was being asserted in the proof did not require reference to further material.
Re Sumabe Pty Ltd and Minister for Health and Ageing [2011] AATA 799
(11 November 2011)
The question for the Tribunal was whether the provisions of the AAT Act abrogated client legal privilege in respect of documents relevant to the review of a decision.
The Tribunal considered the legislative provisions, which require the decision-maker to deliver all relevant documents to the Tribunal and the opposing party regardless of whether the documents are subject to client legal privilege. Notwithstanding those provisions, the Tribunal relied on Australian Prudential Regulation Authority v VBN [2005] FCA 1868 to determine that the legislation yet affords the Tribunal with scope to give effect to client legal privilege if the decision-maker applies for a confidentiality order under s 35(2). Under s 35(2) the Tribunal may give directions prohibiting or restricting the disclosure of documents or evidence received by the Tribunal if it is ‘satisfied that it is desirable to do so by reason of the confidential nature of any evidence or matter or for any other reason'.
After inspecting the documents, the Tribunal determined to make the confidentiality order for which the respondent had applied under 35(2)(b) and (c) of the AAT Act. The order was not made ‘as a matter of course', but following consideration of the parties' submissions and in light of the respondent's undisputed claim of client legal privilege over the advice.
Newtronics Pty Ltd v Gjergja and ors [2011] VSC 594
(23 November 2011)
In this matter it was determined that filing a bill of costs for taxation is inconsistent with the maintenance of confidentiality and client legal privilege in that document. This conclusion was reached by analogy with the cases of ACCC v Cadbury-Schweppes (2009) 174 FCR 547 and Liberty Funding v Phoenix Capital Ltd (2005) 218 ALR 283, which concerned the filing and service of witness statements and affidavits.
A key part of the determination was the finding that the disclosure of privileged material was not made under compulsion of law. While Seeley was obliged to submit a bill of costs to the court, the Federal Court Rules require only a simple description of the costs incurred and the disbursements made. Seeley's decision to include privileged material was entirely voluntary.
The Court rejected Seeley's argument that waiver was limited to the taxation process, finding that any disclosure of privileged material in the bill of costs went beyond what was required by that process. Further, it would be unfair for Seeley to take the benefit of reliance on the bill of costs in related proceedings while denying access to Russell Kennedy in this litigation.
Hanks v Admiralty Resources NL [2011] FCA 1464
(16 December 2011)
In this matter is was held that:
Bare v Small [2011] VSC 639
(19 December 2011)
The question for determination in this matter was whether s 125(1)(b) of the Evidence Act 2008 - which provides that client legal privilege will not apply to a communication ‘made or prepared in furtherance of a deliberate abuse of a power' - can be activated when the abuse of power is unintentional.
The Court decided that intention to abuse power is an essential element to the activation of the provision. This construction accords with the natural meaning of the words in the section; it corresponds with the underlying rationale of the privilege; it accords with the reasoning in the High Court's landmark decision of Attorney General (NT) v Kearney (1985) 158 CLR 500, which is the origin of the statutory language in s 125(1)(b); and it is faithful to the reasoning in other judgments touching the issue.
In these proceedings there was insufficient evidence to establish a prima facie or reasonable grounds case that the defendants had engaged in ‘a deliberate abuse of power' under this construction of s 125(1)(b). While the defendant's second decision may have had the effect of undermining the plaintiffs' case for judicial review, there was no evidence before the Court to show that this was the Director's intention.
