Evidence Act 1995, Pt 3.10 (ss 117–126)
A judge is, sometimes at short notice, confronted with an issue about privilege. In a civil trial, more often than not, the privilege claimed will arise in connection with legal professional privilege, as it is known in the common law. Such a privilege has existed since Elizabethan times, although its derivation and nature altered during the 18th century: J D Heydon, Cross on Evidence at .
This section of the Evidence chapter is principally concerned with “client legal privilege”, the terminology by which legal professional privilege is described in the Evidence Act 1995 (NSW) (“the Act”). The legislation, however, also concerns itself with other kinds of privilege: professional confidential relationships (Pt 3.10 Div 1A), sexual assault communications (Div 1B), religious confessions (s 127), self-incrimination (s 128), judicial and jury reasons (s 129), matters of state (s 130), and negotiations for settlement (s 131).
The common law of privilege concerning confidential communications passing between a client and a legal adviser is now largely absorbed by and reflected in the Act, ss 118 and 119: S Odgers, Uniform Evidence Law, 10th edn at [1.3.10340]. See also the decision of Campbell JA in Armstrong Strategic Management and Marketing Pty Ltd v Expense Reduction Analysts Group Pty Ltd (2012) 295 ALR 348. This decision, although containing a useful and scholarly history of the development of legal professional privilege to “client legal privilege”, did not survive the High Court’s pragmatic and practical approach to a classic example of inadvertent disclosure of privileged material: Expense Reduction Analysts Group Pty Ltd v Armstrong Strategic Management and Marketing Pty Ltd (2013) 250 CLR 303.
A judge, facing such an issue, normally will need to address two fundamental questions:
Has the claim for privilege been established?
If so, has the privilege been waived?
The first question is dealt with by ss 118 and 119 of the Act (note: the important definition section s 117); the second question is resolved by the application of ss 122–126 of the Act.
Before these matters are addressed, however, the judge must take into account the proper procedure for production of the documents sought. The documents will be brought to court usually as a consequence of the subpoena process. What happens when a party or third party objects to production?
In Hancock v Rinehart (Privilege)  NSWSC 12, Brereton J refined the procedure to be adopted where a claim of legal professional privilege is taken to documents sought on subpoena. In so doing, his Honour re-examined the traditional common law authorities and the impact of the UCPR. At issue was the plaintiff’s contention that she could simply tender the relevant documents and (absent their production to the other parties) ask the judge to inspect them and determine privilege. Brereton J rejected this proposition, and held:
Generally, the court must rule on the privilege objection before production can be compelled. This is so both at common law and pursuant to the UCPR. The privilege is a privilege against production. The claims should be made before the documents are produced to the court.
It is inconsistent with the maintenance of privilege for a party to voluntarily put them before the court, even for the limited purpose of inspection by the judge.
The claimant must establish the privilege by admissible direct evidence on oath. The claim may be tested by cross-examination. The court’s power to inspect documents — and to require their production for that limited purpose — is not intended to detract from the requirement that a person claiming privilege prove, by admissible evidence, the grounds of the claim.
The NSWCA heard and dismissed an urgent application for leave to appeal from Brereton J’s decision: Rinehart v Rinehart  NSWCA 58. The court acknowledged that the primary judge recognised the existence of a discretionary power to inspect documents, and that there was no power on the part of a person claiming privilege to require the court to inspect documents in the course of the hearing of an application making a claim for privilege. The court thought it “neither necessary nor appropriate” to express views as to all the propositions enunciated by the primary judge. This should only occur, it said, where “something will turn on the outcome”: . The present case was “highly unusual” in that at issue was not the existence of privilege, but whether or not any privilege was maintainable by Mrs Reinhart in her personal capacity as opposed to her capacity as trustee. The primary judge’s decision was made in the context of a claim unsupported by any evidence at all. His Honour has been correct to find, in that context, that the UCPR in question was not intended to subvert the ordinary obligation upon a party to support a contested claim for privilege by evidence.
The general proposition has been stated as follows:
In civil and criminal cases, confidential communications passing between a client and a legal adviser need not be given in evidence or otherwise disclosed by the client and, without the client’s consent, may not be given in evidence or otherwise disclosed by the legal advisor if made either (1) to enable the client to obtain, or the advisor to give legal advice, or assistance, or (2) with reference to litigation that is actually taking place or was in the contemplation or anticipation of the client. … The relevant time for a assessing whether the conditions antecedent to a valid claim of privilege are satisfied is the time when the communication was made. …
Documents prepared by or communications passing between the legal adviser or client and third parties need not be given in evidence or otherwise disclosed by the client and, without the consent of the client, may not be given in evidence or otherwise disclosed by the legal adviser if they come within (2) above.: J D Heydon, Cross on Evidence at .
The first aspect of client legal privilege (as described above) is often called “advice privilege”. The second aspect is referred to as “litigation privilege”. Section 118 deals with the first; s 119 is concerned with the second.
Section 118 creates a privilege for, in general terms, confidential communications made, and confidential documents prepared, for the dominant purpose of a lawyer providing legal advice: S Odgers, Uniform Evidence Law, 10th edn at [1.3.10340]. As originally framed, the section did not permit the extension of “advice privilege” to third party communications made for the purpose of obtaining legal advice where litigation was not pending or anticipated. However, the 2007 amendments to the Act ensured that the privilege attached to any confidential document prepared for the dominant purpose of legal advice being provided. It did not extend, however, to all communications with a third party, (ALRC Report 102 at 14.122) only those prepared with the relevant dominant purpose in mind.
Evidence that must not be adduced in a proceeding (ss 118 and 119) is not admissible in the proceedings: s 134. Equally, a document to which the provision applies may not be tendered in evidence.
The common law in relation to legal professional privilege is complicated and highly technical. It may be said that the Evidence Act’s attention to the subject (and to litigation privilege) brings with it its own range of technicalities and unresolved problems. However, the following broad propositions (emerging from relatively recent decisions) may be of assistance to trial judges faced with a claim for this type of privilege:
“the purpose” referred to s 118 is the purpose which, at the time, led to the making of the communication or the preparation of the document: Carnell v Mann (1998) 159 ALR 647.
It will not always or necessarily be the understanding or motive of the person who made the statement that determines the issue, although this will be relevant (Esso Australia Resources Ltd v The Commissioner of Taxation (Cth) (1999) 201 CLR 49 at ) — and in some cases decisive: Sydney Airport Corp Ltd v Singapore Airlines Ltd  NSWCA 47 at  per Spigelman CJ.
It is important to recognise that particular communications may combine a number of different purposes. An in-house lawyer, for example, may provide in the one document legal advice to the client and, in addition, commercial advice. The former will attract privilege; the latter will not: Kennedy v Wallace (2004) 213 ALR 108 per Allsop J.
The dominant purpose test has been suggested as involving these questions: “would the communication have been made or the document prepared even if the suggested dominant purpose had not existed? If the answer is ‘yes’, the test is not satisfied. If the answer is ‘no’, the test will be satisfied, notwithstanding that some ancillary use or purpose was contemplated at the time”: S Odgers, Uniform Evidence Law, 10th edn at [1.3.10520] citing Sparnon v Apand Pty Ltd (1996) 138 ALR 735 at 741 per Branson J; Australian Competition and Consumer Commission v Australian Safeways Stores Pty Ltd (1998) 153 ALR 393; Pratt Holdings Pty Ltd v Commissioner of Taxation (2004) 207 ALR 217 per Finn J.
As to dominant purpose — “In its ordinary meaning, dominant indicates that purpose which was the ruling, prevailing or most influential purpose”: Federal Commissioner of Taxation v Spotless Services Ltd (1996) 186 CLR 404 at 416.
A practical illustration of some of these principles is provided in the decision of Schmidt J in Banksia Mortgages Ltd v Croker  NSWSC 535. In that case, an in-house solicitor (who also had a private practice) provided an email advice to the plaintiff’s risk manager concerning an application for a loan by the defendant. An issue in the proceedings was whether the contents of the email were privileged.
Schmidt J determined that the contents of the email were confidential; that the major portion of the document contained legal advice for the client; and that the in-house solicitor’s role was not such as to suggest he lacked the necessary independence to prevent him providing an uncompromised legal opinion.
Consequently, her Honour held that the major portion of the email (with the exception of two paragraphs) attracted privilege.
This provision creates a privilege for confidential communications and confidential documents made or prepared for the dominant purpose of a lawyer providing professional legal services relating to existing or contemplated litigation: S Odgers, Uniform Evidence Law, 10th edn at [1.3.10700]; J D Heydon, Cross on Evidence at . As with s 118, the privilege is that of the client.
the width of the definition of “Australian Court” in the Dictionary to the Act. It extends to certain tribunals that are not required to apply the rules of evidence; see also the definition of “foreign court”.
The reference to “another person” in s 119(a), in contrast to its absence in s 118, indicates that communications between third parties and the lawyer or the client are protected only where the dominant purpose is the provision of professional legal services in litigation, as distinct from legal advice: J D Heydon, Cross on Evidence at .
Examples of privilege within s 119 include:
In Newcastle Wallsend Coal Co Pty Ltd v Court of Coal Mine Regulations (1997) 42 NSWLR 351 at 389, a record of interview between a solicitor for the coal company and an employee about a mine accident was held to be within s 119.
Similarly with communications between the party and an expert witness called by that party: Tirango Nominees Pty Ltd v Dairy Vale Foods Ltd (No 2) (1998) 156 ALR 364 at 365.
s 119 has been held to apply to documents recording communications between prosecution lawyers and prosecution witnesses for the dominant purpose of pending legal proceedings against the accused: R v Petroulias (No 22) (2007) 176 A Crim R 309 per Johnson J.
s 119 (and s 118) protect equally both original documents and copies of them: Carnell v Mann, above, at 254; Commissioner of Australian Federal Police v Propend Finance Pty Ltd (1997) 188 CLR 501.
A document prepared as an originating process of legal proceedings or pleadings (as distinct from a draft witness statement or affidavit) is not privileged because it was not made for the dominant purpose of providing legal services: Ingot Capital Investments Pty Ltd v Macquarie Equity Capital Markets Ltd  NSWSC 40.
See also White J in New Cap Reinsurance Corp Ltd (In Liq) v Renaissance Reinsurance Ltd  NSWSC 258, and also in Buzzle Operations v Apple Computer Australia (2009) 74 NSWLR 469 for the more complicated situation in relation to witness statements, affidavits and documents or reports prepared by experts. A finalised proof of evidence or affidavit created for the purpose of serving it on the opposing party may not be “confidential” and privilege may never have attached to it.
See also Sexton v Homer  NSWCA 414. The NSW Court of Appeal analysed the circumstances in which a report concerning possible litigation furnished by an accident investigator to an insurance company attracted privilege. It also examined the circumstances in which such a report attracts the concept of confidentiality for the purposes of securing the protections of litigation privilege.
Somewhat anomalously, s 120 of the Act protects from tender certain confidential communications and the contents of a confidential document where objection is taken by a party to litigation who is not represented in the proceedings by a lawyer. It was clearly considered that fairness should protect confidential communications prepared for the “dominant purpose of preparing for or conducting the proceedings”. Trial judges dealing with unrepresented persons should be astute to draw this protection to the attention of the parties.
Section 122(1) provides that “this Division does not prevent the adducing of evidence given with the consent of the client or party concerned”.
Odgers suggests that, in view of recent amendments to the Division, this apparently simple (but historically complex) provision “now appears otiose and a source of potential confusion”: S Odgers, Uniform Evidence Law, 10th edn at [1.3.11040].
The reference is to amendments made following upon the High Court’s decision in Mann v Carnell (1999) 201 CLR 1. In that case the High Court changed the focus of the common law (Odgers, above): the test for waiver at common law became whether the conduct of the client was, bearing in mind “considerations of fairness”, “inconsistent with maintenance of the confidentiality of communications between lawyer and client”.
ALRC Report 102 (Recommendation 14-5) proposed that s 122(2) should be amended to provide that evidence may be adduced where a client or party has acted in a manner inconsistent with the maintenance of the privilege. Attention thus focused on the behaviour of the holder of the privilege as opposed to his or her intention.
Section 122(2) now provides:
Subject to subs (5), this Division does not prevent the adducing of evidence if the client or party concerned has acted in a way that is inconsistent with the client or party objecting to the adducing of the evidence because it would result in a disclosure of a kind referred to in section 118, 119 or 120.
Section 122(3) provides:
Without limiting subs (2), a client or party is taken to have so acted if:
The client or party knowingly and voluntarily disclosed the substance of the evidence to another person, or
the substance of the evidence has been disclosed with the express or implied consistent of the client or party.
Subsection 5 outlines circumstances in which a client or party will not be taken to have acted in a manner inconsistent with the client or party objecting to the adducing of the evidence. He or she will not be taken to have so acted “merely because” of those circumstances. They include where:
[T]he substance of the evidence has been disclosed:
In the course or making a confidential communication or preparing a confidential document; or
As a result of duress or deception; or
Under compulsion of law... : s 122(5)(a).
Similarly, a disclosure by a client to a person for whom a lawyer is providing professional legal services to both regarding the same matter (s 122(5)(b)); or to a person with whom the client or party had, at the time of the disclosure, a common interest in an existing, anticipated or pending proceeding: s 122(5)(c).
Section 122(6) provides that, notwithstanding a claim for privilege, a document that has been used to try to revive a witness’s memory about a fact or opinion (or by a police officer under s 33) may be adduced in evidence.
A useful example of the correct approach to the concept is provided for in Osland v Secretary to the Department of Justice (2008) 234 CLR 275. (This case involved, however, the application of the common law, not the Evidence Act.)
In Osland, above, the Victorian Government had obtained confidential legal advice concerning a petition for mercy. The Attorney-General issued a press release which said that the advice had recommended that the petition be refused. The High Court unanimously held that there was no inconsistency between disclosing the fact of, and the conclusions of, the advice for the purpose of informing the public that the Government’s decision was based on independent legal advice, and its desire to maintain the confidentiality of the advice itself. It is necessary, the court said at , that the question of inconsistency should depend “upon the circumstances of the case ... questions of waiver are questions of fact and degree”. S Odgers, Uniform Evidence Law, 10th edn at [1.3.11070], suggests this approach is likely to be adopted by the courts in application of s 122(2): Bailey v Department of Land and Water Conservation (2009) 74 NSWLR 333.
More recently, the NSW Court of Appeal considered waiver of privilege under the Evidence Act: Cooper v Hobbs  NSWCA 70. This was a case where the issue before the District Court had been a simple one: had the respondents to the appeal lent $150,000 to the appellant (as they claimed); or had they invested that sum in a company recommended by the appellant (as he claimed)? The primary judge had found in favour of the respondents, preferring their version of the facts to the appellant’s version. This was notwithstanding the existence of a letter from the respondent’s then solicitor to a third party in which the transaction was plainly referred to as an investment not a loan.
The Court of Appeal held that there had been an error in the fact-finding process, particularly in light of the fact that the respondents had not called the solicitor to give evidence as to the circumstances in which he had written the letter.
A central issue in the appeal was whether the respondents, by giving evidence as to the solicitor’s advice to them (as to why the letter was written referring to an investment rather than a loan) had effectively waived privilege. The Court of Appeal found that it was inconsistent for the respondents to “deploy the substance” of the solicitor’s advice “for forensic purposes” while maintaining a claim for privilege. This was so whether the test in Mann v Carnell (1999) 201 CLR 1 was applied or that arising under s 122(2) Evidence Act.
These provisions result in the loss of the ss 118–120 privileges. Some illustrations of “disclosure” follow:
In general terms, a statement of a potential witness is protected by privilege. Delivery of it to the witness, provided its confidentiality is maintained, will not destroy the privilege. However, once it is filed and served, it loses its characteristic of confidentiality and no privilege remains for it: J D Heydon, Cross on Evidence at .
In Banksia Mortgages Ltd v Croker, above, a second aspect of the litigation involved the plaintiff’s claim that the defendant had waived privilege in relation to certain emails delivered by the defendants to their former solicitor. The documents were clearly privileged under s 119. The issue as to waiver arose because of the contents of an affidavit sworn by the solicitor in an earlier application where summary judgment had been sought by the plaintiff. The affidavit had referred directly to the emails and their content, stressing their importance to the defendant’s rights to resist summary judgment. Schmidt J held that this earlier disclosure of part of the contents of the emails was inconsistent with the later attempt to maintain privilege. The disclosure was voluntary and the situation was governed by both ss 122(2) and (3). Production of the documents was ordered.
For privilege to be lost, the disclosure must be both “knowing” and “voluntary”. However, a disclosure made under a mistaken belief as to what is being disclosed will not be one made “voluntarily” and will not necessarily result in the loss of privilege: Ampolex Ltd v Perpetual Trustee Co (Canberra) Ltd (1996) 40 NSWLR 12 at 22 per Rolfe J. Further, if the mistake is “obvious”, and should have been appreciated by the party to whom the document is disclosed, privilege may not be lost: Meltend Pty Ltd v Restoration Clinics of Australia Pty Ltd (1997) 145 ALR 391 at 405 per Goldberg J.
Counsel’s failure to object to the disclosure of privileged material during a witness’s cross-examination may satisfy the “knowing” and “voluntary” limbs of the disclosure test to waive privilege. For example, in Divall v Mifsud  NSWCA 447, a witness called by a party was asked in cross-examination to reveal the substance of a privileged statement and counsel for the party who called the witness failed to object. The substance of the statement was subsequently disclosed in the witness’s answers. Ipp JA (McColl JA agreeing) held at  that failure to object to those questions meant that the substance of the statement had been “knowingly and voluntarily disclosed to another person”: S Odgers, Uniform Evidence Law, 10th edn at [1.3.11080].
Disclosure on the mistaken basis that privilege is unavailable has been held to be irrelevant to the assessment whether privilege has been lost: Fenwick v Wambo Coal Pty Ltd (No 2)  NSWSC 353 per White J at .
Whether disclosure amounts to disclosure of the substance of a privileged communication is a question of degree. The balance of authority suggests that, at the least, an express or implied summary of the subject legal advice is required. In this regard, the conclusions of the advice may not sufficiently be “the substance of the evidence”, without disclosure of relevant factual bases and a reasoning process proceeding from those bases to the conclusions reached. For example, in Fenwick v Wambo Coal Pty Ltd (No 2), above, after referring to authorities on the point, White J concluded that a draft letter disclosed the substance of the legal advice as it disclosed the reasoning. His Honour, at , appeared to consider the inclusion of reasoning to be determinative.
“[C]onfidential communication” and “confidential document” are defined in s 117 of the Act. Both incorporate a requirement of “an express or implied obligation not to disclose [the communication’s or document’s] contents, whether or not the obligation arises under law”. There is a need to examine carefully the terms on which the communication is made. The Full Court of the Federal Court in Carnell v Mann (1998) 159 ALR 647 has observed (at 659, per Higgins, Lehane and Weinberg JJ) in relation to this phrase that it should not be read narrowly and should not be confined to “the type of obligation which arises in the course of a solicitor/client relationship”. It is important to note that the provision is expressed in terms that a client or party objecting to the adducing of the evidence “merely because” the substance of the evidence has been disclosed on a confidential basis. It follows that circumstances may arise where privilege is lost notwithstanding disclosure of the substance of the evidence on a confidential basis: S Odgers, Uniform Evidence Law, 10th edn at [1.3.11140].
The effect of this provision changed with amendments made following ALRC Report 102, and although the issue is yet to be tested before the NSW Court of Appeal, the preferable approach may prove to be that suggested by Garling J in Gillies v Downer EDI Ltd  NSWSC 1323 at . In that case, his Honour posited that if a party objects to the disclosure of a document on the basis of privilege in the pre-trial gathering of evidence — for example, during discovery, interrogatories, or the production of documents under a subpoena or Notice to Produce — the court is to apply forthwith the principles expressed in Pt 3.10 of the Evidence Act 1995 (NSW): s 131A. (See, for the contrary view, Harrison J in Actone Holdings Pty Ltd v Gridtek Pty Ltd  NSWSC 991.) There had been a line of authority suggesting such a determination was to be reserved until the document/evidence imputed to support the waiver was tendered at trial or otherwise used in such a way on the hearing of those proceedings as would make it unfair not to treat the privilege as having been waived: Sevic v Roarty (1998) 44 NSWLR 287; Akins v Abigroup Ltd  43 NSWLR 539. These cases however did not have the benefit of s 131A which was introduced by the Evidence Amendment Act 2007 and only came into force on 1 January 2009. The effect of this provision, it is suggested, coheres with modern case-management practices, in particular, the more efficient running of trials.
Section 122(5) does not itself confer privilege. Where applicable, it only prevents privilege being lost by a particular disclosure. Under s 122(5), a client is not taken to have acted in a manner inconsistent with the client objecting to the adducing of the evidence “merely because” of a disclosure by the client to “another person” concerning a matter in respect of which they are joint clients of the same lawyer (s 122(5)(b)) or the client and the other person share a “common interest” in current or anticipated legal proceedings (s 122(5)(c)): S Odgers, Uniform Evidence Law, 10th edn at [1.3.11180].
The concept of common interest for the purposes of s 122(5(c) is not rigidly defined. Examples of situations where the provision may apply include disclosure by insured to insurer, partner to partner, and co-tenant to co-tenant. Each case must be considered on its own facts. It has been suggested that a mere common interest in the outcome of litigation will be sufficient to enable any party with that interest to rely upon it: Marshall v Prescott (No 4)  NSWSC 992 per Bellew J at . In that case, a deceased’s de facto partner and workers’ compensation insurer succeeded in establishing a common interest in relation to proceedings concerning the entitlement to damages from class action litigation in the United States against the manufacturer of the engine of a plane that crashed, killing the deceased. The de facto had succeeded against the insurer in prior proceedings in the Compensation Court. The common interest stemmed from s 151Z(1)(b) of the Workers Compensation Act 1987 (NSW) which permitted the insurer to recover compensation already paid to the de facto from the damages. For another example, in Rickard Constructions Pty Ltd v Rickard Hails Moretti Pty Ltd  NSWSC 234, Bergin J (as her Honour then was) found at  that since a “litigation funder” had “an interest in the most advantageous conduct of [those] proceedings by the plaintiff” and that interest “[was] identical with that of the plaintiff”, the “funder in [that] case [had] a ‘common interest in relation to’ the proceedings”.
In Armstrong Strategic Management and Marketing Pty Ltd v Expense Reduction Analysts Group Pty Ltd (2012) 295 ALR 348, the NSW Court of Appeal considered the situation where, in a complicated and lengthy pre-trial discovery process, a number of documents (apparently privileged) were listed as non-privileged, produced (on compact disc), and inspected by the other side. Some three months later, a demand was made that the documents be returned and that an undertaking be given that they not be used. Both requests were refused. The primary judge issued an injunction on the parties who had received the privileged material from making any further use of it and ordered the delivery up of the documents.
The Court of Appeal granted leave on the principal issues and allowed the appeal. The principal judgment was given by Campbell JA (McFarlan JA agreeing). The third member of the court (Sackville AJA) agreed with the orders, reversing those made by the primary judge. However, his Honour reserved his position on several matters.
In the course of his reasons, Campbell JA made the following important points:
There is at present no High Court decision that makes clear the principles to be applied when deciding whether privileged documents provided on discovery by an apparent mistake should be returned; or whether any restriction should be placed on the use of information contained within those documents.
The claims in the present case for injunctions based upon the existence of legal professional privilege were misconceived. The primary judge had erred in treating the principal issue as one of waiver of privilege.
Common law concerning legal professional privilege does no more than provide a ground on which a person entitled to the privilege may restrict or seek to restrict what would otherwise be a legal demand for the disclosure of the privileged material. It did not provide a foundation for injunctive relief in the present matter.
Similarly, in so far as reliance had been placed on client legal privilege under ss 117 and 118 of the Evidence Act, this also could not provide a basis for the injunctions sought and granted at first instance. Sections 117 and 118 might provide a basis at an eventual trial for preventing the privileged documents going into evidence. They did not, however, give the party claiming that a mistake had been made any right to receive the documents back either at the discovery stage or at all.
Further, s 131A did not advance the discovering party’s case. The task of the court under s 131A is to determine whether an objection to the production of a document pursuant to a “disclosure requirement” is well founded. The court’s task did not extend to the granting of injunctive relief.
In the course of his reasons, Campbell JA made an erudite and exhaustive analysis of a number of United Kingdom and Australian cases bearing on the one basis which might have sustained the injunctions granted by the primary charge. These were cases dealing with the law of confidential information and equity’s protection of such information. His Honour paid particular attention to recent Australian decisions where the protection of confidential information had been considered in the context of the modern discovery process.
Campbell JA enunciated a simple proposition: in the circumstances of the present case, the question needed to be asked whether a reasonable solicitor (in the position of the solicitor who had received the documents) would have realised that the documents had been disclosed by an obvious mistake. If the answer to this question is yes, then, depending on the overall circumstances, equity might impose an obligation on the solicitor to return the documents in much the same way as the court might order the return of documents obtained by fraud. Of course, had the receiving solicitor in fact realised that the documents were confidential and that they had been disclosed by mistake, that also might suffice to impose an obligation.
His Honour made a detailed analysis of the facts surrounding the discovery process in the case before the court. His conclusion was that a reasonable solicitor in the position of the solicitor receiving the documents would not have considered that the disclosure had been made as a result of an obvious mistake. Consequently, there was no basis on which the injunctions should have been made. Campbell JA stressed that the case had been wrongly decided at first instance on a waiver of privilege basis rather than by the correct consideration of the law of confidential information.
If, contrary to his views, the availability of the injunctions had depended upon whether privilege had been waived, his Honour said that he would hold, applying s 122 of the Evidence Act, that it had been waived on the basis of the inconsistency test. Once again, his Honour conducted a thorough analysis of the facts in coming to this conclusion. (Sackville AJA reserved his decision on this point on the basis that the matter had not been fully or adequately argued either at first instance or on appeal and that it was an issue that might arise, if at all, only at trial.)
During the course of his obiter analysis of the waiver issue, Campbell JA made an obvious but important point. Section 122 inhibited a finding a waiver where documents were produced under “compulsion of law”. However, the solicitors were never compelled by the discovery process to produce privileged documents for inspection. The fact that they did so occurred at best as a result of their own mistake. Consequently, s 122(5)(a)(iii) did not assist their argument.
On appeal, Expense Reduction Analysts Group Pty Ltd v Armstrong Strategic Management and Marketing Pty Ltd (2013) 250 CLR 303, the High Court, while not doubting Campbell JA’s analysis, in relation to injunctive relief concerning confidential information, held in effect that the litigation in the courts below had missed the point. This was simply a case in which an inadvertent and unintentional mistake had been made. As such, it should have been promptly corrected either by the parties themselves or by a simple court order amending the discovery lists and directing the return of the documents listed by mistake as non-privileged material. Where disclosure has been inadvertent, then, absent a compelling reason, a court will ordinarily correct the mistake and make orders for the return of the documents. The ordinary case is one in which the party claiming privilege has acted promptly and the other party has not been placed, as a result of the disclosure, in a position which would make an order to return the documents unfair. In such a case, no issue of waiver arises.
The High Court reminded the Supreme Court and, in particular, practitioners that the purpose of the powers in the Civil Procedure Act 2005 is to facilitate the overriding purpose of the legislation. A prompt direction and order to amend the list of documents in the present case would have satisfied the dictates of justice and avoided the complex and lengthy litigation which followed the discovery of the original mistake. There was a duty cast upon solicitors to support the objectives of the proper administration of justice by avoiding unnecessary and costly interlocutory applications.
For a case on “mistaken” production of privileged documents, see Bendigo and Adelaide Bank Limited v Stamatis  NSWSC 248. It was held that the documents were not privileged; if they had been, their production to the respondent’s solicitors would have been reasonably seen as intentional, and not as a mistake.
Privilege does not apply to a document that a witness has used to try to revive his or her memory about a fact or opinion under s 32 of the Act, or that a police officer has read or been led through under s 33 of the Act. The success of the attempt to revive memory is irrelevant to the operation of s 122(6).
By contrast, in El-Zayet v R (2014) 88 NSWLR 534;  NSWCCA 298 an undoubtedly privileged document (the Deputy DPP’s advice as to why a prosecution should be discontinued) was inadvertently handed up to the court. The CCA unanimously held that the DPP’s privilege had not been waived either expressly or by implication. The Crown Prosecutor, who had mistakenly handed up the document had no authority to waive privilege.
The general effect of this provision is that privilege is lost if evidence is adduced by a defendant in criminal proceedings, unless the evidence derives from an associated defendant.
An “associated defendant” is defined in the Dictionary to the Act as follows:
“[A]ssociated defendant”, in relation to a defendant in a criminal proceeding, means a person against whom a prosecution has been instituted, but not yet completed or terminated, for:
An offence that arose in relation to the same events as those in relation to which the offence for which the defendant is being prosecuted arose; or
An offence that relates to or is connected with the offence for which the defendant is being prosecuted.
The term “adducing evidence” as it appears in the provision does not encompass a “call” made by a defendant on the prosecution for production of documents during the hearing of a criminal proceeding: S Odgers, Uniform Evidence Law, 10th edn at [1.3.11340]. The provision would apply, for example, where the defendant, in actual possession of the documents, seeks to tender them in the proceedings: R v Wilkie  NSWSC 885, per Grove J at .
The effect of this provision is that privilege under ss 118 or 119 is lost if, in civil proceedings where “2 or more parties have, before the commencement of the proceeding, jointly retained a lawyer in relation to the same matter”, evidence of a communication made by any of the parties to the lawyer, or a confidential document prepared by or for any of the parties, in relation to the same matter, is adduced by one of the parties. Whether there is a communication made to, or from, a solicitor in his or her joint capacity is decided by objective evidence about whether the occasion for the communication was one where the solicitor was being asked to advance the purpose for which he or she was jointly consulted: Doran Constructions Pty Ltd (in liq), Re (2002) 194 ALR 101 at  per Campbell J.
In Feridun Akcan v Cross  NSWSC 403, Rein J held that s 118 did not prevent a barrister giving evidence (said by the plaintiff to have been jointly retained by himself and the defendants) as to what the defendants said at a conference at which they all attended. The issue was whether the plaintiff was a silent partner with the defendants in a restaurant venture at the Drummoyne Sailing Club. The barrister’s evidence was that the defendants, during the conference, confirmed that this was the situation.
Rein J first examined the position at common law. His Honour considered that the better view was not that there had been a waiver of privilege; rather the more coherent view was that no privilege arose as between the three persons in the first place.
Rein J found that s 124 operated in the same manner as the common law position notwithstanding its somewhat infelicitous expression.
In general terms, this provision results in loss of privilege if a communication or document was made or prepared by a client, lawyer or party in furtherance of a fraud, an offence or an act that renders a person liable to a civil penalty. Further, the privilege will be lost if the communication or document was known, or should reasonably have been known, by the client, lawyer or party, to have been made or prepared in furtherance of a deliberate abuse of statutory power: s 125(1)(a) and (b): S Odgers, Uniform Evidence Law, 10th edn at [1.3.11620]–[1.3.11640].
In Kang v Kwan  NSWSC 697, the plaintiff had carried out work on certain property at Castlecrag owned by the second and third defendants. There was evidence to show that the first defendant colluded with the others to create a false mortgage, participated in a sale of the property to a third party, received “payment” of the mortgage monies and dissipated the funds overseas. The privilege argument centred on legal advice and other confidential communications passing between various lawyers and the defendants. Santow J held that there were reasonable grounds to hold that both limbs of s 125 were established and that privilege had been lost. His Honour made a useful list of propositions relevant to the operation of “fraud” and “abuse of power” loss of privilege. In particular, Santow J stated at , :
a person asserting that legal professional privilege does not apply to a communication has the onus of proving it. Where fraud is asserted, there must be evidence to support the assertion
the standard of proof is not required to the level of proof on the balance of probabilities. There must, however, be some evidence at a prima facie level — “something to give colour to the charge”
the court itself may inspect the documents: s 133. It may do so for the purpose of determining whether privilege has been lost,
“fraud” in s 125, requires an element of dishonesty; some level of “sharp practice”. Similarly with “abuse of power”, especially because of the word “deliberate” in s 125(1)(b).
This effect of this provision is to permit the adducing of “evidence of another communication or document” if it is reasonably necessary to do so to enable a prior understanding of a communication or document before the court. Sackville J has made the following helpful observations about the operation of s 126 of the Act in his judgment in Towney v Minister for Land & Water Conservation (NSW) (1997) 147 ALR 402:
Though s 126 does not specify whose understanding is to be considered when determining whether or not a source document is reasonably necessary “to enable a proper understanding” of a document in respect of which client legal privilege has been lost by reason of voluntary disclosure, an objective standard is contemplated: Towney v Minister for Land & Water Conservation (NSW), above, at 412 per Sackville J; cited with approval in Sugden v Sugden (2007) 70 NSWLR 301 at  per McDougall J (Mason P and Ipp JA agreeing).
The meaning of “proper understanding” is not narrow. If a privileged document is voluntarily disclosed for forensic purposes, and a thorough apprehension or appreciation of the character, significance or implications of that document requires disclosure of source documents, otherwise protected by client legal privileged, ordinarily the test laid down by s 126 of the Act will be satisfied: Towney, per Sackville J at 413–414.
Mere reference to a privileged source document, of itself, does not necessarily result in loss of the privilege attaching to the whole or even part of that document. It is plausible that a source document may be divided clearly into discrete parts, with only one part relevant to gaining a proper understanding of a document. In such circumstances, it could not be said that inspection of other portions of the source document is reasonably necessary to enable a proper understanding of the report: Towney, per Sackville J at 413–414.
In Galafassi v Kelly (2014) 87 NSWLR 119 the Court of Appeal analysed the section and its important “exception” in s 131(2)(g). The principal section (excluding settlement negotiations) does not apply where “the court would be likely to be misled as to the existence or contents of an excluded communication or document, where those matters are in issue in the proceedings.”
In the instant case, an important issue was whether the purchasers of a Paddington property intended to continue to repudiate the contract for sale after equity proceedings had been commenced. The correspondence in question showed that this was plainly the case — the email from the purchasers made it clear that they would never be in a position to complete. Hence, even if the document were capable of being viewed as an attempt to negotiate a settlement, the exception provision in s 131(2)(g) made it essential that the documents be received into evidence.
Evidence Act 1995, ss 32–33, Pt 3.10 (ss 117–126), ss 127–131A, ss 133–134, Dictionary
Evidence Amendment Act 2007
Workers Compensation Act 1987, s 151Z(1)(b)
J D Heydon, Cross on Evidence, 8th edn, LexisNexis, Sydney, 2009
S Odgers, Uniform Evidence Law, 10th edn, Thomson Reuters, Sydney, 2012
ALRC Report 102, Australian Government Publishing Service, Canberra, 2005