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Lecture

WEEK 7 - Disclosure

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Department
Law
Course Code
LWB431
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All

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Paul Judge 2009 LWB431 Civil Procedure Disclosure DISCLOSURE Disclosure is the delivery or production of documents in accordance with Ch 7 Pt 1: r 210. [1] WHAT IS THE PURPOSE OF DISCLOSURE? Disclosure is intended to prevent surprise at trial and give each party the opportunity to be appraised of the case to be met at the trial. [2] THE DUTY OF DISCLOSURE Disclosure applies to all parties (r 209(2)) including [proceedings started by claim: r 209(1)(a) / proceedings in which a court has made an order to proceed as if by claim under r 14: r 209(1)(b) / proceedings started by application, if the court directs: r 209(1)(c)]. In order to be subject to the obligation to disclose under r 211, the subject matter in question must be:  A document: sub-s (1);  in the possession/under the control of the disclosing party: sub-s (1)(a);  directly relevant to an allegation in issue in the pleadings (sub-s (1)(b)) or matter in issue in the proceeding: sub-s (1)(c). The duty is ongoing until the proceeding is decided: r 211(2), and an allegation remains in issue until withdrawn, struck out or admitted: r 211(3). 211 Duty of disclosure (1) A party to a proceeding has a duty to disclose to each other party each document61 — (a) in the possession or under the control of the first party; and (b) directly relevant to an allegation in issue in the pleadings; and (c) if there are no pleadings—directly relevant to a matter in issue in the proceeding. (2) The duty of disclosure continues until the proceeding is decided. (3) An allegation remains in issue until it is admitted, withdrawn, struck out or otherwise disposed of. NB. • All documents mentioned in pleadings, particulars or affidavits must be produced upon written notice of request from other parties: r 222. • The duty is subject to other laws dealing with withholding of a matter detrimental to the public interest: r 239 222 Inspection of documents referred to in pleadings or affidavits A party may, by written notice, require another party in whose pleadings, particulars or affidavits mention is made of a document— (a) to produce the document for the inspection of the party making the requirement or the solicitor for the party; and (b) to permit copies of the document to be made. [3] HOW IS DISCLOSURE TO BE ACHIEVED? Rule 214 provides that subject to rr 216 and 223 a party makes disclosure by delivering a list of documents (form 19) in relation to: 1 of 23 Paul Judge 2009 LWB431 Civil Procedure Disclosure a) the duty ; and b) to which privilege is claimed. >>>If other party requests production for inspection (r 215 production for inspection) On request, the disclosing party delivers copies of the documents provided in the list. The other can require the production for inspection of the original of any document disclosed: r 215. To effect disclosure, disclosing party must produce the documents for inspection at the time specified in r 214(2) (r 216(2)(a)) and notify the other party in writing of a convenient place and time for document inspection: r 216(2)(b). (GOTO TIMING). >>>If large quantity of documents or portion of the documents (r 216 production for inspection) Where it is not convenient for a party to deliver documents as otherwise required, because of the number, size, quantity or volume of the documents or some of the documents, the disclosing party must produce the documents at the time specified in r 214(2) (r 216(2)(a)) and given written notification of a convenient time and place for inspection: r 216(2)(b). No list of documents is required when effecting disclosure under r 216, only a list of privileged documents: Shannon v Park Equipment Pty Ltd per Atkinson J. >>>If court ordered production for inspection The court can order the production for inspection a document or each document in the class: r 223(1)(b). However there must be special circumstances and the interests of justice require it (r 223(4)(a)) or there is an objective likelihood that the duty to disclose has not been complied with: r 223(4)(b)(i). NB. Bundles of documents described in a list of documents as eg. “file containing bundle of correspondence” breach the requirements of r 217(2)(b) (identified in a way enabling particular documents to be retrieved easily on later occasions) and r 217(5)(c) (documents be identified by a number, description or another way): Altmann v Ioof of Victoria Friendly Society per McGill DCJ. 217 Procedure for disclosure by producing documents (1) This rule applies if a party discloses documents by producing them. (2) The documents must be— (a) contained together and arranged in a way making the documents easily accessible to, and capable of convenient inspection by, the party to whom the documents are produced; and (b) identified in a way enabling particular documents to be retrieved easily on later occasions. (3) The party producing the documents must— (a) provide facilities (including mechanical and computerised facilities) for the inspection and copying of the documents; and (b) make available a person who is able to explain the way the documents are arranged and help locate and identify particular documents or classes of documents; and (c) provide a list of the documents for which the party claims privilege. (4) The arrangement of the documents when in use— (a) must not be disturbed more than is necessary to achieve substantial compliance with subrule (2); and (b) if the party to whom the documents are produced for inspection so requires—must not be disturbed at all. (5) For subrule (2), the documents may— (a) be contained by files, folders or in another way; and (b) be arranged— (i) according to topic, class, category or allegation in issue; or (ii) by an order or sequence; or (iii) in another way; and (c) be identified by a number, description or another way. (6) The person made available under subrule (3)(b) must, if required by the person inspecting the documents— (a) explain to the person the way the documents are arranged; and (b) help the person locate and identify particular documents or classes of documents . 2 of 23 Paul Judge 2009 LWB431 Civil Procedure Disclosure NB. A party who does not make use of the opportunity to inspect documents under a notice under r 216 may not inspect documents unless the party tenders an amount for the reasonable costs of providing another opportunity for inspection or the court otherwise orders: r 219. [4] TIMING OF DISCLOSURE Here, [description] therefore disclosure must be made [time for disclosure]: [provision]. Description Provision Time for Disclosure if disclosure is ordered before the r214(2)(a) at the time specified in the order close of pleadings if an application for a summary r214(2)(b) within 28 days after the decision; decision is made within 28 days after the close of pleadings and the proceeding is not entirely disposed of when the application is decided otherwise r214(2)(c) within 28 days after the close of pleadings when any further pleading or r214(2)(d) amended pleading is delivered if the first occasion on which a r214(2)(e) within 7 days after the occasion document comes into the happens possession or under the control of the party, or is located by the party, happens after a time mentioned in paragraph (a) to (c) if the party is asked in writing by r214(2)(f) within 28 days after the another party to request deliver a copy of a document [5] ISSUE There are a number of documents which may need to be disclosed: • (documents) [6] SHOULD [DOCUMENT] BE DISCLOSED? [6.1] Is it a document? [Document] would be a document because “document” includes _______: • any paper or other material on which there is writing: s 36(a) AIA 1954 (Qld) • any paper or other material on which there are marks, figures, symbols or perforations having a meaning for a person qualified to interpret them: s 36(b) AIA 1954 (Qld) • any disc, tape or other article or any material from which sounds, images, writings or messages are capable of being produced or reproduced (with or without the aid of another article or device): s 36(c) AIA 1954 (Qld) 3 of 23 Paul Judge 2009 LWB431 Civil Procedure Disclosure • a computer database. In appropriate circumstances the court may order that [other party] have the benefit of disclosure of [disclosing party]’s database/computer system, even though the other has purported to have provided copies of the relevant documents: Poteri v Clarke per Boulton DCJ. • a serial number on a car engine • a shorthand script • a document containing brail [6.2] Is it in [disclosing party]’s possession/control? Possession means the physical or corporal holding of the document pursuant to the right to its possession: Halsbury’s Laws of England (cf. mere custody as a bailee). Control means the entitlement to give directions as to those documents – it does not need to be physical control. >>>If mere potential right to gain control after taking a number of steps Here, [party] does not have a right to [view document] instead they must [ask permission/gain consent/only disclose authority of government/body/person]. This is like Lonrho v Shell Petroleum Co, which held that Shell did not have control over the documents. The documents were held by a wholly owned subsidiary which was owned by a shareholder. The shareholder does not have a right to view the internal working documents of a coy – must ask directors for permission to examine documents. Also African subsidiaries were not permitted to disclose without the authority of the African government. Therefore this is a mere potential right to gain control not a presently enforceable legal right to access the document and party will not have possession/control. >>>If presently enforceable legal right to access the document Here, [disclosing party] has access to [document] without needing anyone’s consent. This is a presently enforceable legal right to access the document and therefore in the possession or under the control of [disclosing party]: Lonrho v Shell Petroleum Co. Lonrho v Shell Petroleum Co Ltd • In this case, there was a series of permissions required on the part of Shell Petroleum from subsidiaries in order for them to be able to obtain the documents to be able to comply with the obligations of discovery • It was the view of the court that those series of permissions gained from subsidiary companies represented a situation where the parent company was not in the possession, custody or power of those documents • Therefore, they were not in a position to be compelled to disclose those documents • From the fact that it may not be possible to the person entitled to it to obtain immediate possession would not prevent the document from being within his power, but in the absence of a presently enforceable right, there is nothing to compel a party to a cause or matter that will enable him to acquire one in the future • Disclosure should not compel a party to take steps to obtain documents where they are not currently under their possession or control • Documents held in the ‘past, present but not the future’ >>>If subject to an FOI request Here, document is subject to an FOI request and thus [document] is not in the control of the party because control cannot extend to a right to obtain under FOI: Erskine v McDowall per Robertson DCJ. However, in Erkskine Robertson DCJ made an order under r 223(1) directing the defendant to make the necessary application under the FOI Act 1982 (Cth) to obtain copies of specified documents from Centrelink and/or the Department of Social security and upon obtaining copies to disclose those parts which contained reference to particular matters of direct relevance to the proceedings. >>>If in back up files / deleted files 4 of 23 Paul Judge 2009 LWB431 Civil Procedure Disclosure Here, [person/body]’s [back up files / deleted files] would come within the disclosure obligations: Sony Music v University of Tasmania. >>>If under joint control Here, [disclosing party] has joint control of the document with [third party] [who is not before the court] – “control” is not necessarily exclusive control, thus will suffice: Equuscorp v Glengallan Investments per Helman J. >>>If documents created by party resisting disclosure In Palmdale Insurance Ltd (in liq) v Grollo & Co Pty Ltd Marks J distinguished Lonrho, holding that income tax and payroll returns which had been lodged with a public authority, were brought into existence by the defendants, thus they were their documents and necessarily in their possession before lodgement. Prima face they had a legal enforceable right to inspect them. Similarly here, _____. NB. Held in any event there was a power in the court when dealing with a commercial cause to direct a party take steps to obtain access to the documents because real likelihood that would be given access to the documents on request. [6.3] Is it directly relevant? The Queensland rule provides for a different test to the “chain of enquiry” test of relevance as established in Compagnie Financiere et Commerciale de Pacifique v Peruvian Guano Co (1882) 11 QBD 55. In Robson v Reb Engineering Pty Ltd [1997] 2 QdR 102 at 105 Demack J stated: “…’directly relevant’ means something which tends to prove or disprove the allegation in issue.” The allegations in issue are determined having primary regard to the pleadings, but only the real issues (consistent with r 5(1) UCPR): Peninsula Shipping Lines Pty Ltd v Adsteam Agency Pty Ltd [2008] QSC 317 per Daubney J. >>>If application for judicial review of decision of local authority Documents relating to [body]’s application for licence under [Act] are directly relevant to whether applicants are “persons aggrieved”: Boral Resources v Council of Shire of Pine Rivers NB. Boral Resources: applicants (quarry operators) – court ordered disclosure of applicant’s financial records re: quarry; all documents re: application for and issue of Town Planning Consent Permits pursuant to which the quarry was operated, including all correspondence between the applicant and the local authority and applications and correspondence relating to the applicant’s application for a licence pursuant to the EPA – held: relevant to issue whether applicants were “persons aggrieved” within s 20(1) Judicial Review Act 1991 (Qld) and whether there was an improper exercise of power. >>>If business diaries Documents such as business diaries should be disclosed if directly relevant to allegation in issue: Poteri v Clarke >>>If directly relevant Here, [party]’s professional/business diary is directly relevant to the issue of [issue in pleading eg. whether deceased had testamentary capacity at time of making his will] because [relevance eg. diary documents a conversation with deceased and deceased’s capacity X months prior to execution of the disputed will would be directly relevant]. >>>If photocopy of page from diary [Party] should be asked as to the whereabouts of this diary and disclose it if still in his/her possession or under his/her control. If the original diary can be disclosed, the photocopy page 5 of 23 Paul Judge 2009 LWB431 Civil Procedure Disclosure will probably be excluded as an additional copy of a document already disclosed provided it reasonable to suppose that there is no change etc to it likely to affect the outcome of the proceeding: r 212(1)(c). >>>If photocopy made at request as solicitor There may be a legal privilege claim removing the duty of disclosure: r 212(1)(a) (GOTO Exemptions – photocopies) >>>If not directly relevant Here, [party]’s professional/business diary is not directly relevant to any allegation because ______. >>>If absence of an entry However despite no particular entry being directly relevant, the absence of an entry on [date] may be significant because ______ and thus directly relevant: Poteri v Clarke. >>>If monthly turnover figures >>>If claim for loss of earnings due to redevelopment work Monthly turnover figures for other tenants in the shopping complex were directly relevant to the tenant pff’s action for losses suffered as a result of redevelopment work: Stone Hipwood v DS Queen Street Mall (tenant names blanked out & undertakings not to disclose). Arguably/analogously here _____. >>>If TPA claim for misleading and deceptive conduct Documents evidencing rentals paid by other tenants of a shopping complex were directly relevant to the determination of a fair monthly rental for shop premises: Cardinia Pty Ltd v Yu Feng Pty Ltd per Helman J. Arguably/analogously here ______. >>>If wage records of other comparable employees Wage records of other comparable employees may be relevant to the issue of a plaintiff’s loss of earnings and earning capacity in a damages claim for personal injuries suffered in the course of employment: Robson v Smith. Arguably/analogously here ________. >>>If documents relating to source and security of plaintiff’s income Documents relating to the source and likely continued availability of funds used for plaintiff’s living expenses, particularly for support of the child were relevant to assessment of damages in a professional negligence claim for the cost of rearing a child conceived after a vasectomy: Hoare v Spork per Wilson J. >>>If counsel’s advice It would be anticipated that counsel’s advice meets the test of being directly relevant to allegations in issue in the pleadings (unless very unsatisfactory advice as success prospects). >>>If medical records Here, the medical records contain _______. Thus the documents meet the test of direct relevance to an allegation in issue in the pleading, namely _________. >>>If photocopy made at request as solicitor There may be a legal privilege claim removing the duty of disclosure: r 212(1)(a) (GOTO Exemptions – photocopies) >>>If statement solicitor took from client Clearly the statement from [client] would include content directly relevant to many of the issues in dispute in the action. (GOTO Exemptions – legal advice) 6 of 23 Paul Judge 2009 LWB431 Civil Procedure Disclosure >>>If statement solicitor took from non-party witness This is clearly directly relevant. (GOTO exemptions – legal advice) >>>If copy letters to experts requesting expert opinion This letter/these letters would also meet the test of being directly relevant to an allegation in issue in the pleadings, namely [issue]. (GOTO exemptions – legal advice) >>>If expert opinion This opinion would also meet the test of being directly relevant to allegations in issue in the pleadings, namely [issue]. (GOTO exemptions – legal advice) >>>If file note of conversation with expert It obviously includes content directly relevant to an allegation in issue on the pleadings, namely [issue]. (GOTO exemptions – legal advice) >>>If financial records The financial records would reveal such matters as _________. Thus directly relevant to an allegation in issue in the pleadings. For example: • Where there was a change in the competency or manner with which financial affairs are managed; • Any transfer of assets; • Change in degree of management of financial affairs personally as opposed to third parties. >>>Otherwise >>>If relevant This document relates to ________ therefore its contents are directly relevant to [issue(s)] – which/both of which/all of which will be in issue on the pleadings. Examples: • A letter stating that the “farm was totally mismanaged”, “the old boy had lost it” and that “Fung was just a puppet for Handy and Nuckles”, although undated, clearly relates to the testator’s conduct during the period when the writer was employed by the testator which is the period leading up to and possibly surrounding the date of execution of the will the subject of the proceeding. Thus contents directly relevant to testamentary capacity and undue influence. • A preceding will may shed light on issues relating to testamentary capacity and undue influence which are/are not allegations in issue on the pleadings. If the action to prove the [Date] Will in solemn form fails, an earlier Will will take effect. >>>If not relevant This document relates to _______ therefore its contents are not relevant to any issue in the pleadings. [7] IS [DOCUMENT] EXEMPTED FROM DISCLOSURE? General Documents to which the duty of disclosure does not apply are set out in r 212 212 Documents to which disclosure does not apply (1) The duty of disclosure does not apply to the following documents— 7 of 23 Paul Judge 2009 LWB431 Civil Procedure Disclosure (a) a document in relation to which there is a valid claim to privilege from disclosure; (b) a document relevant only to credit; (c) an additional copy of a document already disclosed, if it is reasonable to suppose the additional copy contains no change, obliteration or other mark or feature likely to affect the outcome of the proceeding. (2) A document consisting of a statement or report of an expert is not privileged from disclosure. In making disclosure under the rules, privileged documents should be included only in the list of documents as a document to which privilege from disclosure is claimed: r 214(1)(a). Privilege can be challenged: r 213 213 Privilege claim (1) This rule applies if— (a) a party claims privilege from disclosure of a document; and (b) another party challenges the claim. (2) The party making the claim must, within 7 days after the challenge, file and serve on the other party an affidavit stating the claim. (3) The affidavit must be made by an individual who knows the facts giving rise to the claim. [7.1] Documents relevant only to credit >>>If credit is in issue [Document] is relevant only to credit. However, credit is itself in issue, thus r 212(1)(b) will probably not exclude it disclosure because it relates not only to credit but also to an allegation in issue in the pleadings. Examples: • Defamation proceedings • “Wrongful dismissal” actions where the defendant seeks to justify the dismissal of the plaintiff on the basis that the plaintiff is a person who lacks credit. >>>If credit is not in issue As credit itself in issue, [document] is relevant only to credit and thus not subject to the r 211 duty to disclose. NB. A party may disclose to another party a document relating only to damages only if the other party asks for its disclosure: r 221. [7.2] Legal Professional Privilege (LPP) “Legal professional privilege” is the privilege which is accorded to communications between a client and a legal adviser for the dominant purpose of obtaining or giving confidential legal advice, or for the confidential use of legal advisers in pending litigation: Esso Australia Resources v Commissioner of Taxation (majority: Gleeson CJ, Gaudron & Gummow JJ jointly, and Callinan J; contra McHugh J & Kirby J) NB. • For example, document made for purpose of legal advice and subsidiary purpose which would not by itself lead to the creation of the document, that subsidiary purpose will not lead to a loss of privilege. Dominant purpose is one, without which, the document would not have been created. 8 of 23 Paul Judge 2009 LWB431 Civil Procedure Disclosure • Policy behind LPP is frank and complete disclosure as between legal adviser and client is necessary for proper functioning of the legal system not merely conduct of particular litigation: Baker v Campbell per Dawson J. [7.2.1] Limb 1: Was the document communication between lawyer/client for confidential legal advice? >>>If confidential legal advice The communication must be a confidential communication between legal adviser and a client. Here, ______ and is accordingly privileged. >>>If not confidential legal advice Privilege will not apply to: • communication with a solicitor who is acting outside of professional capacity; • communication which is not related to the giving of any confidential advice; • trust account records: Packer v Deputy Commissioner of Taxation (documents left with solicitor simply to try and prevent disclosure) • correspondence between client and solicitor/solicitor and 3P involving no more than passing on of information or which relates purely to a commercial transaction (ie. not legal advice): Re Cooksley & Associates • diary notes of oral conversations involving passing on of information or relating purely to a commercial transaction: Anford Pty Ltd v GCA Properties • wills and instructions for the preparation of wills because letter of instructions for the will, or will itself was not created for the sole purpose of legal advice: Tickell v Trifleska per Rogers CJ (confirmed as sound in law under dominant purpose test as document having dominant purpose of calling into existence a document disposing of property after death: Urquhart v Lanham per Campbell J). • costs agreement and terms of the retainer between solicitors and their client: Cook v Pasminco Here, [document] involves ______ which privilege does not apply to: [authority]. NB. Advisers must be admitted to practice as solicitors or barristers: Glengallan Investments Pty Ltd v Arthur Andersen. Packer v Deputy Commissioner of Taxation • The case turned on whether trust account ledgers which revealed tax irregularities would attract the protection of privilege • Trust account ledgers revealing tax irregularities • His Honour came to the conclusion that on the one hand, LPP does not extend to communications lodged or correspondence lodged with a solicitor in an attempt to protect them from production • The overarching point made was that the trust account ledgers were not developed or permitted for the sole purpose of litigation, and the implication was that they were provided to the solicitor for the plaintiff in an attempt to protect them from production • There was an attempt to contrive a privileged situation here • One cannot hide behind the protection of privilege simply by submitting the documents to their solicitor • Note – this case was pre-Esso Australia Resources Limited v The Commissioner of Taxation therefore the uses the previous test of sole purpose [7.2.2] Limb 2: Was the document created for purpose of existing or anticipated litigation? [Document] was clearly created for the purpose of existing/anticipated legislation as ________. >>>If litigation has not commenced 9 of 23 Paul Judge 2009 LWB431 Civil Procedure Disclosure It is not necessary for litigation to have commenced. Rather there must be a real prospect or apprehension of litigation – not a mere possibility (but it does not have to be more likely than not): Mitsubishi Electric Australia Pty Ltd v Victorian Workcover Authority. Here _____. [7.2.3] Specific Examples >>>If photocopies (of unprivileged documents) Here, facts do not specify how the copies came to be made, but presumably they were made at the request of a solicitor. There is no basis for any claim that the original [document eg. medical records / diaries] are protected by any privilege. LPP extends to copies of unprivileged documents in the possession of a lawyer, if the copies were made for the dominant purpose of giving or receiving legal advice, or for use in existing or contemplated litigation: Commissioner, Australian Federal Police v Propend Finance Pty Ltd (HCA). Here, the purpose of making the photocopied document was _______. Therefore, privileged/not privileged. NB. If photocopies are potentially of an expert opinion (GOTO If photocopies are of medical records) >>>If statements of loss or damage and identification of particular documents Rules 547 & 548 requiring statements of loss or damage and identification of particular documents are not to be read as excepting documents which would in the absence of those rules be protected by LPP: Parr v Bavarian Steakhouse. NB. These rules operate in relation to personal injury and fatal accident claims, and in particular extend to statements of plaintiffs themselves which relate to the plaintiff’s injury, loss or treatment. [7.2.4] Conclusion as to LPP Therefore, under at least limb 1/2/both limbs LPP would apply. >>>If expert opinion However, r 212(2) removes any privilege which would otherwise apply to a document consisting of a statement or report of an expert. >>>If expert report Here clearly [expert report] must be regarded as an expert report for purpose of this rule so no privilege will attach to it and it must be disclosed. NB. Mazelow Pty Ltd v Herberton Shire Council per Cullinane J: • It is not necessary that the report/statement be constituted wholly/substantially by expressions of opinion (can be presentation of data). • A statement by a person who is an expert in some field but dealing with an unrelated subject matter will not fall within r 212(2) >>>If copy letters to experts requesting opinion LPP attaches to communications passing between an expert and a party’s solicitor for the sole purpose of giving legal advice in relation to, or obtaining evidence to be used in litigation, but that such privilege did not protect other documents relating to the production of an expert report, such as drafts and working papers, source materials and documents collated and copied by the expert in order to prepare a report: Interchase Corporation Limited (in liq) v Grosvenor Hill (Queensland) Pty Ltd (No 1) (QCA). Greenhill Nominees Pty Ltd v Aircraft Technicians of Australia confirmed that Interchase held that instructions given by lawyers to an expert for the purpose of preparing an expert report were protected by LPP. Therefore, copy letters in issue here would be privileged. >>>If documents relating to production of expert report 10 of 23 Paul Judge 2009 LWB431 Civil Procedure Disclosure LPP attaches to communications passing between an expert and a party’s solicitor for the sole purpose of giving legal advice in relation to, or obtaining evidence to be used in litigation, but that such privilege did not protect other documents relating to the production of an expert report, such as drafts and working papers, source materials and documents collated and copied by the expert in order to prepare a report: Interchase Corporation Limited (in liq) v Grosvenor Hill (Queensland) Pty Ltd (No 1) (QCA). Therefore, [draft/working paper/source materials] would not be privileged. >>>If draft statement/report Where a draft is nonetheless an expert’s statement albeit not their final view, LPP will not apply: Mitchell Contracts Pty Ltd v Townsville-Thuringowa Water Supply Joint Board (QSC) per Douglas J. >>>If file note of conversation with expert The Consultation Draft for the UCPR (Oct 1997) included r 293(3) aimed ensuring that parties could not avoid the obligation to disclose unfavourable expert opinions by first requesting an oral report, as has occurred here. However the sub-rule was omitted. Therefore r 212(2) will not apply and [document of pre-report expert opinion] will be privileged. >>>If witness statements formed basis of expert opinion Statements taken from potential witnesses would probably fall within the scope of LPP so that r 212(1) (a) privilege would not apply to them because _______ (apply two tests from above). However given that here the statements of [person] have formed the basis of the expert opinion in the [expert report] and it is likely that the report must be disclosed, it is likely that the privilege otherwise attaching to them will be waived. (GOTO WAIVER) >>>If photocopies are of medical records However the better view is that [eg. contemporaneous file notes of observations of patient] would not amount to a statement or report of an expert within the meaning of this sub-rule. However there is little case law on the area. Therefore on balance likely that r 212(2) would not remove LPP. >>>If participation in crime or fraud However, communications which would otherwise be privileged lose their immunity from disclosure if they amount to participation in crime or a fraud: Baker v Campbell. Here, ____. NB. • This exceptions extends to anything that might be described as ‘fraud on justice’ AF (NT) v Kearney per Gibbs CJ (eg. deny protection to lawyer-client protection for purpose of client putting assets beyond the reach of the legitimate claims of secured creditors: Gartner v Carter (FCA) per Lander J) • Extends to ‘trickery’ and shams’: o ‘sham’ refers to steps which take the form of a legally effective transaction but which the parties intend should not have the apparent, or any, legal consequences: Equuscorp Pty Ltd v Glengallan Investments Pty Ltd. o Example: creditors of a managed investment scheme claimed privilege over documents relating to securities obtained from the defendant and certain companies in the scheme. The transactions were allegedly entered into so as to advance those creditors’ interests over the interests of other creditors to the scheme. Communications prima facie in furtherance of a sham and, as such, not privileged: ASIC v Mercorella (No 3). • Must be established that communication which is the subject of privilege claim was made in furtherance of, or as a step preparatory to, the commission of the fraud or wrongdoing: AWB Ltd v Cole (No 5) per Young J at [218]. 11 of 23 Paul Judge 2009 LWB431 Civil Procedure Disclosure o Example: letter written by pff’s lawyer volunterring a warning that plaintiff may incur serious consequences if he did not take care was not shown to be ‘in preparation for or in furtherance or as part of any criminal designs on the part of the plaintiff’: Lord Goff in Butler at 687. [7.3] “Without prejudice” communications Documents brought into existence in an endeavour to settle a dispute will be protected by privilege (except where they are used in relation to the appropriate costs order): Field v Commissioner for Railways for NSW. The test is whether there is a genuine attempt to reach settlement of a dispute: Glengallan Investments Pty Ltd v Anderson. Here, ______ NB. • IF litigation has not commenced: applies even if litigation has not commenced – reach a settlement of a dispute which will become the subject of litigation if not resolved: Glengallan. • IF not marked “without prejudice”: the privilege will attach if the document is of the kind which the privilege protects, regardless of whether or not it is marked “without prejudice”: Rodgers v Rodgersi. • IF marked “without prejudice” but not part of settlement: the marking of [document] with “without privilege” will not give it the benefit of the “without prejudice” where it does not form part of settlement negotiations: McBeath Nominees v Jenkins Development. • The privilege will prevent disclosure to a party not involved in the communications: Mercantile Mutual Custodians v Village Nine Network. Field v Commissioner for Railways Facts: • Pl brought PI claim – train started while he was alighting and he was thrown onto platform • Endeavoured to settle the action – ‘w/o prejudice’ letter sent seeking med exam of Pl. • Appointment made in further w/o prejudice correspondence • The plaintiff made certain admissions to the doctor as to the sequence of events leading to the accident • The specialist gave evidence at trial that the Pl told him at the med exam that he had stepped out of a slowly moving train as it had overrun the platform – Pl objected saying communication was privileged Held: (per Dixon CJ, Webb, Kitto & Taylor JJ) • The decision of the court as to whether privilege attached to those admissions made to that doctor gave the court an opportunity to discuss the rationale and scope of without prejudice communications • The purpose of privilege for without prejudice statements is for parties engaged in an attempt to compromise in litigation to communicate with one another freely and without embarrassment which the liability of their communication to be put in evidence which subsequently might impose a prominent • No privilege attaches to admissions made outside of settlement negotiations (i.e. the medical examinations) • Therefore, the doctor receiving the admissions could be compelled to give evidence of those admissions to the court thereby seriously compromising the position of the plaintiff in the circumstances • So must ensure no admissions made carelessly outside the scope of settlement negotiations – confining the privilege to the scope of settlement negotiations only • The Q is what formed part of the negotiations for settlement and w
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