Without prejudice privilege and the Evidence Act, 2008

Update, 9 August 2010: See also Forsyth v Sinclair (No 2) [2010] VSCA 195 where Justices of Appeal Neave and Redlich and Acting Justice of Appeal Habersberger held that the Evidence Act, 2008‘s ‘relevant to costs’ exception to the s. 131 rule that without prejudice communications are inadmissible is trumped by the Supreme Court Act, 1986 provision that anything said or done at a Court-ordered mediation may not be adduced in evidence.  So, one party’s counsel said to another at the mediation that the very costs consequences which the Court ended up making would flow if the other party did not accept an offer.  That was relevant to the question of costs, but it was inadmissible because of s. 24A of the Supreme Court Act, 1986.

Original post: In Alexander v Australian Community Pharmacy Authority (No 2) [2010] FCA 467, a judge of the Federal Court in Melbourne admitted a ‘without prejudice’ letter (which was not expressed to be ‘without prejudice except as to costs’) into evidence at a post-trial costs hearing.  His Honour noted that the parties paid no attention in argument to the Evidence Act, 2005 (Cth) which governed the issue, and that communications which otherwise attract negotiation privilege are admissible if they are relevant to costs.  Victorian lawyers are obviously going to have to get used to the new regime, because the Evidence Act, 2008 (Vic.) is to the same effect.  Based on this decision in relation to legal professional privilege (now called ‘client legal privilege’ at least in those circumstances where the Evidence Act, 2008 applies), it is likely that the new regime will apply to the adduction even of letters written prior to the commencement of the new Act.  Treat every without prejudice letter as a Calderbank letter, in other words. Continue reading “Without prejudice privilege and the Evidence Act, 2008”

More on Briginshaw

Quis Custodiet Ipsos Custodes has a useful post today about two matters of interest to this blog: how the rules of evidence apply in tribunals which are not bound by them, and the reminder in Briginshaw v Briginshaw (1938) 60 CLR 336 that the more serious the allegations, the more positively persuaded of them a decision maker should be before finding them made out. (You will note I did not refer to the ‘Briginshaw standard of proof; Justice Dixon’s whole point is that there is no Briginshaw standard of proof.) Too much ink has been split interpreting Briginshaw given how clearly Justice Dixon expressed himself, but it is always useful to have fresh perspectives.  The authors consider the issues in the context of intervention order applications, a civil phenomenon in which the criminal law is mixed up by virtue of the police’s penchant for alleging the commission of crimes as grounds for obtaining an intervention order.

Evidence paper, part 3 (hearsay introduction)

This is the third instalment of my evidence paper.  Part 2 is here.

Hearsay

Litigation involving lawyers is typically document-heavy.  Lawyers usually record more things on their files in more detail than most people.  Court files contain a detailed record of the history of a matter, even to the near-unique extent of oral and written transcript of hearings.  Many clients these days communicate heavily with their lawyers by email in place of what formerly was said on the phone.  For that reason, this paper starts with an analysis of the problems of documents which are rarely the focus of writing on evidence which is almost exclusively produced by those for whom the criminal trial is the paradigm forum in which the law of evidence stands to be analysed. Continue reading “Evidence paper, part 3 (hearsay introduction)”

Representations as to future matters: s. 51A Trade Practices Act, 1974

Section 52 of the Trade Practices Act, 1974 prohibits corporations from engaging in conduct in trade and commerce which is misleading and deceptive.  Section 51A says representations about future matters are deemed to be misleading if the corporation does not have reasonable grounds for making the representation.  It also says that it will be deemed not to have had reasonable grounds for making the representation unless it leads evidence to the contrary, that is, that it did have reasonable grounds.  I was aware that there has been controversy about who needs to plead what in relation to s. 51A, but was surprised to read in Alpine Beef Pty Ltd v Trycill Pty Ltd [2010] FCA 136 that s. 51A imposes no burden of proof on the corporation to establish the reasonableness of the grounds for the future representation (other than an obligation to lead some evidence to rebut the presumption).  As Justice Flick explained: Continue reading “Representations as to future matters: s. 51A Trade Practices Act, 1974”

Evidence paper, part I (introduction to the new law)

Now I know my posting on the new Evidence Act has been a bit sporadic, and disordered, but now I’ve written my research paper on the subject, and whereas before I was subjecting you to the offcuts I discarded along the way, now I am going to subject you to a serialised version of the essay, probably embroidered a bit as I go, and with the errors pointed out by Associate Professor Palmer expurgated.  I appeared in my first trial involving the new laws the other day, in the County Court.  It was all very anti-climactic: the new Act did not even get a mention.  Anyway, for what may seem like the third time, an introduction to the new laws of evidence:

‘Victoria’s Evidence Act, 2008 commenced on 1 January 2010.  How it will affect civil litigation remains to be seen.  Because the common law, modified by the Evidence Act, 1958 often either defied common sense so profoundly or was inaccessible in intelligible form, there developed a substantial body of civil litigation in which the rules of evidence were not in fact applied, and some other fuzzy, unspoken rules varying between jurisdictions and even lists, were applied instead. Continue reading “Evidence paper, part I (introduction to the new law)”

Changes to legal professional privilege operate retrospectively

They’ve changed the law in relation to legal professional privilege on us. The common law has been abolished, at least in relation to compulsory processes (discovery, subpoenas, interrogatories, notice to produce) in fora where the new Evidence Act, 2008 applies, and the adduction of evidence in those fora. Two legal professional privilege regimes are now going to apply in relation to any particular communication.  If the Tax Man, or the Legal Services Commissioner, compels you to produce documents, the common law will apply.  If you produce them, the common law will determine whether the production amounts to a waiver.  If the investigation leads to court (but not VCAT) proceedings proceedings, to which the new law will apply, you might be compelled by subpoena to produce documents you successfully resisted producing in the investigation pursuant to the common law.  Furthermore, in those proceedings, the Court will decide for itself, under the new law, whether the production to the Commissioner in the investigation amounted to a waiver or not.

The change is not as great as it might have been had the uniform evidence law been introduced into our land prior to the last round of amendments.  Now the law relating to implied waiver of privilege is stated in more or less the same terms as the common law, as expounded by Mann v Carnell, and the new law applies to post-commencement but pre-trial stages of court cases as well as at trial.  But there are differences too: Justice Byrne’s decision referred to below confirms it.

I blogged about the transitional provisions for the new legislation here.  It occurred to me that since the Hikers are so fond of emphasising what a basic common law right the right to assert legal professional privilege over confidential communications is, there was a real question about whether the changes ought to operate retrospectively, in the sense that communications which occurred before this year (i.e. before the commencement of the new Act) which were already entitled to legal professional privilege at common law might be adjudged not to be privileged for the purposes of proceedings governed by the new Act.  There is a presumption in statutory interpretation against the retrospective taking away of accrued rights.  But there is no such presumption in relation to changing procedures for the vindication of rights.

Someone has actually already run this esoteric argument.  In Main-Road Property Group Pty Ltd v Pelligra & Sons Pty Ltd (No 4) [2010] VSC 27, Justice Byrne, who knows a thing or two about the law of evidence, gave the argument short shrift, though his views are purely dicta: Continue reading “Changes to legal professional privilege operate retrospectively”

Can you justify a subpoena by relevance only to credit?

Update: See also Liristis v Gadelrabb [2009] NSWSC 441, and Mackintosh v Commissioner of Police (NSW) [2010] NSWSC 1064.  And Taylor v O’Neill [2012] NSWSC 626 where a solicitor sued for negligence successfully resisted an application to set aside a subpoena issued to the police to produce the plaintiff’s criminal record in circumstances where its contents were relevant only to credit in a ‘she said, he said’ contest of evidence between him and the former client plaintiff.

Original post: The short answer is — yes. Jack Brabham Engines Ltd v Beare [2010] FCA 35 is a decision on an application to set aside a subpoena.  One of the plaintiffs subpoenaed the police to produce the ‘criminal history records’ of one of the respondents.  The plaintiff said the documents were potentially relevant to the credit of the respondent.  Evidently, there was some evidence in the case, admitted subject to the resolution of objections ‘relating to the conduct of [the respondent] involving the police and alleged offences which … would or could be of apparent relevance to the matters between the parties in this case.’ So the subpoena could not be regarded as just a fishing expedition. The credibility of the defendant’s evidence was likely to be important for the resolution of the case.  Relatively recently appointed Justice Jayne Jagot found that the subpoena was not an abuse of process and refused to set it aside.  Her Honour emphasised, however, that the fact that she refused to set aside the subpoena was only phase one in the multi-phase life of a subpoena. Continue reading “Can you justify a subpoena by relevance only to credit?”

Yet another implied waiver case: Paragon Finance Plc v Freshfields (a firm)

Several recent posts have been about the implied waiver which is said to be an incident of clients suing their former solicitors for negligence.  They are simply case notes.  Some of the cases are English.  All were decided under a law different from that which from 1 January 2010 applies in Victorian court proceedings, a law which has existed in fellow uniform evidence jurisdictions NSW and the Commonwealth only since the beginning of 2009, when amendments to the client legal privilege provisions came into operation.  The purpose of this preamble is to warn against assuming that the law stated in these cases, which represent the common law at the time and in the place of their decision, is the law today. I’m not saying it’s not, right; I just can’t be bothered for the moment to work it out.

Paragon Finance Plc v Freshfields (a firm) (1999) 1 WLR 1183; [1999] EWCA 955 is a unanimous decision of the English Court of Appeal’s Chief Justice, Lord Bingham, and Lord Justices Brooke and Chadwick.  The question the Court identified for decision was:

‘if a client sues his former solicitors claiming damages for alleged negligence in the handling of a commercial transaction between the client and a third party, does the client’s waiver of legal professional privilege (implied from the bringing of the proceedings against the former solicitors) apply not only to confidential communications between the client and those former solicitors relating to that transaction but also to confidential communications between the client and different solicitors whom he later instructed to pursue and settle his claim against the third party?’ Continue reading “Yet another implied waiver case: Paragon Finance Plc v Freshfields (a firm)”

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:

Basic facts and useful resources about the uniform evidence legislation

Now I have too many words in my Advanced Evidence paper, so you can have the first off-cut.

The uniform evidence legislation is comprised of:

  1. The Evidence Act, 1995 (Cth.), which commenced almost 15 years ago on 18 April 1995;
  2. The Evidence Act, 1995 (NSW), which commenced on 1 September 1995;
  3. The Evidence Act, 2001 (Tas.), which commenced on 17 December 2001;
  4. The Evidence Act, 2004 (Norfolk Island), which commenced on 1 December 2004;
  5. The Evidence Act, 2008 (Vic.), which commenced on 1 January 2010.

The Victorian Act was amended before it commenced (including a Victoria-specific widening of the hearsay exceptions), by the Statute Law Amendment (Evidence Consequential Provisions) Act, 2009 and the Criminal Procedure Amendment (Consequential and Transitional Provisions) Act, 2009, so buy the forthcoming (green) reprint rather than the (grey) numbered Act, and be careful for the time being to check whether Austlii’s consolidation is up to date. Continue reading “Basic facts and useful resources about the uniform evidence legislation”

Admissibility rulings may be revisited

Res judicata does not attach to interlocutory orders.  It is open to the trial judge, for example, to vary them.  So much I knew.  Until I read In the Marriage of Bowron (1982) 8 Fam LR 651 (this adventure into the law of evidence is taking me to strange places), I had never thought about whether a ruling as to the admissibility of evidence is final.  The answer is, if this case remains good law, that it is not final, even if the result of a voir dire.  Justice Baker said: Continue reading “Admissibility rulings may be revisited”

Imputed waiver of privilege upon clients suing former lawyers: Lillicrap v Nalder & Son

Back from Vanuatu, a pleasant place, I am slaving away at a 10,000 word paper on the application of the Evidence Act, 2008 to civil cases involving lawyers.  In due course, no doubt, I will subject you to a serialised version of it.  One of the things I am considering is that species of implied waiver of legal professional privilege which is an incident of suing your lawyer, so expect more case notes on that topic than you could reasonably want to read.  First up: Lillicrap v Nalder & Son [1993] 1 WLR 94, which seems to be the English decision most often cited for the proposition that upon a client suing their lawyer, the client’s client legal privilege over the solicitor’s file, and over communications between them more generally, is waived to the extent necessary to allow the lawyer to respond to the suit.  It was recently affirmed in Esso Australia Resources Pty Ltd v BHP Billiton Petroleum (Bass Strait) Pty Ltd [2007] VSCA 224, a decision of Acting Chief Justice Maxwell and Justice of Appeal Chernov.  And in Mann v Carnell (1999) 201 CLR 1, the majority said: Continue reading “Imputed waiver of privilege upon clients suing former lawyers: Lillicrap v Nalder & Son”

Transitional provisions for introduction of Evidence Act, 2008 (Vic.)

Update, 4 March 2010: The changes to legal professional privilege apply retrospectively to communications which pre-date the commencement at the beginning of this year of the Evidence Act, 2008.  See this post.
Update, 15 February 2010: ‘Quis Custodiet Ipsos Custodes’ has published a useful (but not exhaustive) summary of the provisions here.

Original post: Before you start worrying about my sanity, note that I did not write this on New Year’s Day; I just set it to publish on that day. No doubt you’re wondering about the transitional provisions for the Evidence Act, 2008 (Vic.) which came into operation on 1 January 2010, being the ‘commencement day’.  They were inserted into the Act (no. 47 of 2008) by an amending Act which came into operation before or at the same time as the principal Act, namely the Statute Law Amendment (Evidence Consequential Provisions) Act, 2009 (Vic.) (no. 69 of 2009).  The thrust of them is that the new Act applies to hearings which commence in 2010, but there is lots of detail.  They follow below, but you should also be aware that the Evidence Act, 2008 was amended before it came into operation, but the consolidated version is still not yet available on Austlii: Continue reading “Transitional provisions for introduction of Evidence Act, 2008 (Vic.)”

VCAT decision overturned for appearance of bias

Two men litigated a case over $10,000 in VCAT’s Civil List before a sessional member. As per the norm in that list, they were unrepresented. That Civil List is a place a world away from the proceedings you read about in the law reports.  I must say I like the idea of an accessible tribunal where people can get the catharsis of a judicial determination, without the expenditure on legal fees which is impossible for most people. And I like to think that there is a class of case where the quality of legal representation which can be obtained for a price which is proportionate to the amount at stake is in fact such that the diligent and ordinarily intelligent litigant who is all over his or her case, and may have sought out some legal advice along the way, is likely to do better himself than with the kind of representation he can afford.  It is a tough job being a member down there.  All sorts of legal problems get thrown at them and they are expected to churn through them in a fraction of the time a Court would take, and give ex tempore decisions.  Judges in superior courts have an easier time because counsel present relatively recognisable legal theories of disputes in a relatively predictable way.  Arguments devised by people who do not think within the same structures that experienced lawyers do throw up odd ideas the appraisal of which is difficult for the very reason that they are odd.

But it is important that the Civil List actually apply the law, even if it dispenses with its more technical excrescences, and review by superior courts from time to time (incredibly rare, if you look at the statistics) remains important.  Justice Habersberger considered that justice in one case had got so rough that the appellant deserved another go, and set aside VCAT’s decision: Leon Holdings Pty Ltd v O’Donnell [2009] VSC 430.  The rules of evidence may not bind the tribunal, his Honour said, but whatever rules are adopted in relation to evidence, they must be applied even handedly.  When the member allowed one man to tender hearsay evidence without demur but then refused to hear the other man’s hearsay evidence despite the absence of any objection by his opponent, she created a perception of bias: Continue reading “VCAT decision overturned for appearance of bias”

Can unaccepted offers be evidence of the value of land?

Until I had a look at this judgment, I thought that the best evidence of the value of land at a particular point in time would be what people in the real world actually offered to pay for it. In fact, there seems to be a lot of authority for the proposition that such evidence is inadmissible to prove what the land was worth. The whole question was reviewed in the utmost detail in Auxil Pty Ltd v Terranova [2009] WASCA 163. Justice of Appeal Buss with whom Justice of Appeal Miller agreed kindly summarised the fruits of their review as follows: Continue reading “Can unaccepted offers be evidence of the value of land?”

Self-incrimination certificates

Latest word, 4 February 2018: Ying v Song approved by Full Federal Court: Construction, Forestry, Mining and Energy Union v Australian Building and Construction Commissioner [2018] FCAFC 4.

Further update, 30 August 2017: Elliott J refused an application for a s. 128 certificate made by a plaintiff who sought it in respect of certain paragraphs of a witness statement he had voluntarily filed: De Lutis v De Lutis [2017] VSC 505.  His Honour considered the Court of Appeal’s decision in Clayton Utz (a firm) v Dale (2015) 47 VR 48 which in turn had considered the NSWCA’s decision in Song v Ying (2010) 79 NSWLR 442, both cases which post-date what is written below.

Update, 4 December 2009: A single judge of the NSW Supreme Court, Justice Julie Ward (NSW’s equivalent of Victoria’s Justice Kyrou, having been appointed from the ranks of solicitors last year), declined to follow the decision discussed below, Sheikholeslami v Tolcher [2009] NSWSC 920.  Twelve thousand words is a pretty good effort for an evidentiary ruling.  In Ying v Song [2009] NSWC 1344, her Honour concluded:

‘I am unable to conclude that, on its proper construction, s 128 is enlivened in the present circumstances. Someone who chooses to adduce incriminating evidence (albeit because he or she feels forced to make such a disclosure to defend a claim made against him or her) is not in any real sense “unwilling” or averse to doing so. At common law such a person would not have been able to invoke the privilege against self-incrimination unless under a legal compulsion to give such evidence and I do not read s 128(1) as introducing a right to claim privilege which otherwise would not have existed.’

See also Einstein J in Meiko Australia Pacific Pty Ltd v Adam Samuel Hinchliffe [2009] NSWSC 354 at [188]ff.  This passage from Ying v Song also seems worthy of squirrelling away for future reference:

‘There might be an argument that, even if a certificate were given to protect Mr Song from the consequences of giving evidence by reading his affidavits in the present case, that certificate would not protect him from the consequences of having prepared and disseminated those documents in the first place (see generally, Brebner v Perry [1961] SASR 177 per Mayo J and BTR Engineering (Australia) (Formerly Borg-Warner Australia Limited) v Patterson (1990) 20 NSWLR 724 at 729 per Giles J). There might also be an argument that, having prepared and sworn documents (ie the affidavits), which have been filed and served, containing admissions which could be tendered against him in any criminal proceedings, Mr Song has waived, for the purposes of these proceedings, any privilege in relation to matters attested to in those affidavits or would be placed in no greater jeopardy of prosecution by reading those affidavits in the present proceedings and swearing (for a second time) to their accuracy (BTR Engineering at 730 per Giles J; Microsoft Corp at 381 [41] per Lindgren J; R v Bikic at [15] per Giles JA). However, as these arguments were not raised in argument before me and as I am otherwise satisfied that a certificate cannot be given in the present circumstance, it is not necessary for me to decide them.’

Original post: Section 128(7) of the Evidence Act, 1995 (Cth.) says:

‘In any proceeding in an Australian court: (a) evidence provided by a person in respect of which a certificate under this section has been given, and (b) evidence of any information, document or thing obtained as a direct or indirect consequence of the person having given evidence, cannot be used against the person’.

A pretty useful certificate.  Victorian practitioners in the Federal Court, Federal Magistrates’ Court, and Family Court should already be familiar with the section.  Victoria’s Evidence Act, 2008, which commences on 1 January 2010 (thankfully after I have spent a week doing Advanced Evidence at Melbourne University with Professor Palmer), has a similar s. 128.

Pursuant to s. 132, courts have an obligation to warn parties and witnesses who they think might be in need of a certificate of their availability.

Typically, these certificates are granted when a witness objects to giving evidence, or answering certain questions, on the basis that to do so would be liable to incriminate them, or expose them to a civil penalty such as a fine or the suspension of a practising certificate.  Sub-section (1) says:

‘This section applies if a witness objects to giving particular evidence on the ground that the evidence may tend to prove that the witness (a) has committed an offence …’.

A recent case, Sheikholeslami v Tolcher [2009] NSWSC 920, makes clear that on the present state of the law, a party or witness may apply for such a certificate even where what would be liable to incriminate him or her is evidence which he or she wishes to adduce in favour of their own case — the plaintiff’s affidavit evidence, a counterclaimant’s witness’s answers in re-examination.  Justice Rein doubted the correctness of this interpretation of ‘objects to giving evidence’, but said by reference to Ferrall v Blyton [2000] FCA 1442; (2000) 27 Fam LR 178, Ollis v Melissari [2005] NSWSC 1016, and Chao v Chao [2008] NSWSC 584 that he was more or less bound to accept it.

Just how useful the section might be is exemplified by the facts and outcome of Ferrall v Blyton.  As described by Justice Rein in Sheikholeslami at [8]: Continue reading “Self-incrimination certificates”

Victoria to adopt uniform evidence legislation

Update, 25 January 2010: The Act commenced on 1 January 2010.  See now this post.

Update, 13 January 2009: The Evidence Act, 2008 was assented to on 15 September 2008 and is to commence on a day to be proclaimed, probably no later than the end of this year.

Original post: The government has finally introduced the Evidence Bill, 2008 which, when passed, will make Victoria the 5th jurisdiction (after the Commonwealth, NSW, ACT, Norfolk Island and Tasmania) to adopt the uniform evidence legislation. It is a good development, because some of the common law rules of evidence, as amended by the Evidence Act, 1958, are so ridiculous that, according to a most experienced Supreme Court judge I heard speaking extra-curially, only especially irritating middle class unrepresented litigants ever dare to raise them.

It will also be good because the law clusters more efficiently around statutory provisions. Tracking the evolution of common law concepts is made difficult by inconsistency of language, whereas there is only one statutory text. Statutory text can have its own set of problems — the ad hoc series of amendments to the Evidence Act, 1958 which don’t hang together too well being a good example — but great care was taken in the drafting of the uniform legislation. Now to find all the cases about illegally obtained evidence in civil cases, we will be able to tap the relevant sub-section of the Act into Case Base, or even Austlii’s ‘Note Up’ function. A further advantage is this: the Federal Court and the Supreme Court of NSW are much better at publishing reasons for evidentiary rulings than the Supreme Court of Victoria. So Victorians will be able to make use of the many decisions of those courts which state the law relatively consistently and clearly by reference to modern cases, whereas evidence texts on the common law are replete with 19th century authority, and the common law states’ law of evidence is divergent because of different statutory modifications, but not sufficiently divergent to justify separate texts.

The Attorney-General’s media release is all about the millions which will be saved by the abolition of the best evidence rule, which requires the originals of documents, rather than copies, to be adduced in evidence. He obviously hasn’t noticed that no one takes any notice of the rule anyway. Indeed, one of Melbourne University’s evidence gurus says the rule no longer exists.