The concurrent operation of the new Evidence Act, 2008 and of the Legal Profession Act, 2004

Section 8 of the Evidence Act, 2008 says it does not affect the operation of the provisions of other Acts.  So, although the compellability and competence provisions and the admissibility provisions of the new Act are often spoken of as a code, those who say so are thinking about the continuing operation of the common law, rather than statute law on the subject which survives the legislative change consequent upon the enactment of the new Act.  That caused me to look through the Legal Profession Act, 2004 with a view to finding out how the law of evidence in cases involving lawyers might differ from that to be found in the new Act.  I found that it:

  • declares certain evidence inadmissible (e.g. health assessments in aid of decisions whether a practitioner is fit and proper: s. 2.5.8);
  • makes certain people non-compellable (e.g. anyone in possession of a health assessment: s. 2.5.8);
  • prohibits people from the Legal Services Board’s and Legal Services Commissioner’s offices from giving evidence about matters learnt in the course of their duties except in criminal cases and proceedings under the Act (s. 6.4.5, see also s. 6.6.13 re the LPLC);
  • provides for procedural safeguards in relation to exercise of powers of compulsion and the like which, if not followed, would inform the exercise of the Evidence Act, 2008’s s. 138 discretion not to admit evidence obtained improperly (e.g. s. 3.3.36(2)(iv), s. 3.3.41);
  • abrogates privileges (e.g. client legal privilege in certain situations and the privilege against self-incrimination: ss. 2.7.23(5), 3.2.21(3), 3.3.24(1), 3.3.46(1), 4.4.41(6), 5.5.10(3), 7.2.7(2));
  • provides for statutory privileges (e.g. a modified privilege against self-incrimination: s. 2.7.23(6), 3.2.21(4), 3.3.24(2), 3.3.46(2), 4.4.41(7), 5.5.10(4), 7.2.7(3) and a statutory version of negotiation privilege to dispute resolution processes provided for by the Act (ss. 4.3.5, 4.3.11));
  • allows for the facilitation of proof by officials’ provisions of certificates (e.g. ss. 5.5.14(6), 7.2.5);
  • otherwise allows for the facilitation of proof (e.g. by a certified copy of an original document seized by an inspector under the Act: s. 3.3.42; of service of documents under the Act, including lawyers’ bills, ss. 7.2.1 to 7.2.4);
  • effectively deems the solicitor whose wrong is the subject of Fidelity Fund proceedings to be a party for the purposes of admissibility of evidence (s. 3.6.25);
  • modifies burdens of proof (e.g. in Fidelity Fund matters: s. 3.6.14(6)(b)).

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One Reply to “The concurrent operation of the new Evidence Act, 2008 and of the Legal Profession Act, 2004”

  1. The interaction of non-EA2008 compellability rules and the EA2008 is not always straightforward, according to the government. The Attorney-General claims that new provisions inserted into, inter alia, the Supreme Court Act (s24B(2)) making judges who run judicial resolution conferences non-compellable in consequential proceedings, which are expressed as not ‘limiting section 16 of the Evidence Act 2008’, are actually limited by that section, in the sense that the court running the later proceedings can ‘give leave’ to compel such a judge to testify. See Alert Digest No 11 of 2009 of the Victorian Parliament’s Scrutiny of Acts and Regulations Committee, p11.

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