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Crown Solicitor's Office

The Evidence Act 1995 – 20 years on – Part 3.10: client legal privilege

Stephen Odgers SC, Barrister, Forbes Chambers; Adjunct Professor, Faculty of Law, University of Sydney

Extracts from a seminar dated 18 February 2015

Section 131A of the Evidence Act 1995

Although the Evidence Act 1995 ("the Act") is similar to the common law, difficulties arise for practitioners in determining whether the common law or the Act applies.

The provisions of the Act refer to evidence not being "adduced" of privileged matters in a proceeding. The High Court in Esso Australia Resources Ltd v Commissioner of Taxation (1999) 201 CLR 49 held those provisions applied exclusively to court proceedings and would not extend to ancillary processes (for example, production pursuant to subpoenas or discovery) so the common law applied in relation to those ancillary processes.

However, in 2008, s. 131A was introduced into the Act, which extended the operation of the provisions to preliminary proceedings of courts. Section 131A applies where there is a "disclosure requirement", that requires the giving of information or the production of a document which would result in the disclosure of privileged information. "Disclosure requirement" is defined to be a "process or order of a court that requires the disclosure of information or a document" and includes subpoenas, summonses, discovery, interrogatories and notices to produce. The result is that the Act applies generally in NSW but with some limitations.

First, reference should be made to El-Zayet v The Queen [2014] NSWCCA 298 (read decision on NSW Caselaw).  In that case, the last page of a legal advising report, upon which the Director of Public Prosecutions had endorsed his direction that no further proceedings were to be brought against the applicant and his co-accused, had been handed to the Court by the prosecution, and then subsequently returned to the Director. Privilege was claimed over the document.  An application was made seeking orders to gain access to the document on the basis that the Crown had waived privilege. That application was dismissed at first instance.  In the NSW Court of Criminal Appeal, Beazley P and Emmett JA observed at [91] that the party who had handed over the document "was not, at the point of the court's hearing the applicant's notice of motion, subject to any disclosure requirement", with the consequence that s. 131A did not apply.

Secondly, in New South Wales v Public Transport Ticketing Corporation [2011] NSWCA 60 (read decision on NSW Caselaw), the NSW Court of Appeal noted that s. 131A is only engaged where the "person" required by a disclosure requirement to give information, or to produce a document, is the same "person" who objects to giving that information or providing that document. It does not apply where some other person objects to the information being given or the document provided. Thus the provision was not engaged where the NSW Public Transport Ticketing Corporation was the "person" subject to the disclosure requirement in relation to various documents, but did not object to providing those documents. The objection, on the grounds of public interest immunity, was made by the State of New South Wales.

Thirdly, in Waugh Asset Management v Merrill Lynch [2010] NSWSC 197 (read decision on NSW Caselaw), McDougall J held that s. 131A applies only "at the stage of production" of a document to the Court and not "at the stage of subsequent use" (where the common law would apply). Such a restrictive view effectively negates the purpose of the provision since, as McDougall J observed:

"[i]t is not at the first stage (production), but at the second (interim use, such as access or photocopying), where questions of privilege are raised".

However, there are several reasons why this ruling is wrong. The natural and ordinary meaning of the term "produce" is "to show or provide for inspection or use", with the consequence that the provision would apply to the whole of the process initiated by the Court. A purposive approach to statutory interpretation would not support the narrow view.  Nor does the Explanatory Memoranda or the Uniform Evidence Law (Australian Law Reform Commission Report 102) support this view.  Notwithstanding the apparent ambiguity, it should be understood that the objection to "providing" a document extends to its provision by way of access to a party.

In Singtel Optus Pty Ltd v Weston [2011] NSWSC 1083 (read decision on NSW Caselaw), White J concluded at [26] that McDougall J was wrong, stating that:  

"the draftsman intended the section to apply to the entire process by which the production of a document on subpoena or by notice to produce (or by the other means referred to in subs. 131A(2)) would result in the disclosure of the document".

Other courts have come to the same view.

Dominant purpose test

Under the Act, client legal privilege applies to the confidential communications or documents made for the "dominant purpose" of the provision of legal advice (s. 118) or for the "dominant purpose" of the client being provided with professional legal services in Court proceedings (s. 119). In contrast to the litigation privilege, the privilege over legal advice does not extend to third party communications.

One area which is still a little unsettled is what the "dominant purpose" test means. It has replaced the common law "sole purpose" test. It tends to be expressed negatively (thus if two purposes are of equal weight, one would not dominate the other; even if a particular purpose was "greater than" another purpose, or was "the most important" purpose, this does not necessarily mean it was the "dominant" purpose). 

The "but for" test adopted by Jacobs J in Grant v Downs (1976) 135 CLR 674 is attractive, where he stated (at [692]):

"[I]f a document is created for the purpose of seeking legal advice, but the maker has in mind to use it also for a subsidiary purpose which would not, by itself, have been sufficient to give rise to the creation of the document, the existence of that subsidiary purpose will not result in the loss of privilege."

This view was close to being endorsed by the High Court in Esso Australia Resources Ltd v Federal Commissioner of Taxation, but is still unsettled.

Client legal privilege in criminal proceedings: limitation to defendants

Section 123 of the Act provides that client legal privilege does not prevent a defendant from adducing evidence unless it is evidence of a confidential communication made between, or document prepared by, an associated defendant and/or a lawyer acting for that person in connection with the prosecution of that person. The effect of this provision is that one or other of the privileges created by ss. 118 – 120 is lost if the evidence (of a communication or document) is adduced by a defendant in criminal proceedings, unless the evidence derives from an associated defendant.  It was the intention of the ALRC, when proposing the uniform evidence laws, that the effect of s.123 would be to prevent the prosecution from claiming privilege in criminal proceedings.  

One view of the words "adducing evidence" is that they would extend to a situation where the defendant's counsel in criminal proceedings asks a question of a witness, such that the witness would not be able to rely on privilege to decline to answer the question.   

However, the Victorian Court of Appeal concluded in DPP (Cth) v Galloway (a pseudonym) [2014] VSCA 272 that the provision should not be read so widely and would only result in loss of privilege where the evidence is adduced by the accused in circumstances where the "evidence [is] already in the accused's possession or knowledge" (at [85]). Thus, it would mean that privilege would be lost in a document in the possession of the accused and tendered in the criminal proceedings.  It would not be lost where the accused made a call for the production of such a document, as if on subpoena. Equally, it would not be lost where defence counsel asked a question of a witness in order to elicit privileged information (unless, possibly, the information is within the "knowledge" of the accused). This narrower view of the operation of the provision is consistent with the common law approach and it is likely that it will be followed in other uniform evidence law jurisdictions.

It is also noted that s. 131A explicitly provides that this provision does not apply to ancillary processes like subpoenas.