The Supreme Court of New Zealand, their equivalent of our High Court, handed down a decision on the litigation limb of legal professional privilege on 12 August 2010. Chief Justice Elias, with whom the rest of the Court agreed, held that:
- privilege could attach to an anonymous provision of information to a litigant (who happened to be a barrister) in relation to litigation, and the intention of the anonymous tipper-off-er is not determinative of the dominant purpose test;
- privilege could attach in the right circumstances to the identity of a person who makes a privileged communication, though often that person’s identity will not be privileged (as to the Australian position, see this post).
The decision is Jeffries v The Privacy Commissioner [2010] NZSC 99. It was decided under s. 56 of New Zealand’s Evidence Act, 2006. That provision is sufficiently relevantly different from Victoria’s Evidence Act, 2008′s s. 119 that the unsolicited communication decision is of doubtful application, but the law stated in the decision is said to be the common law, and so still relevant in Victoria where privilege is relevant to the adduction of evidence in places like VCAT which are not covered by the Act, and outside of Court proceedings, for example pursuant to notices from the Legal Services Commissioner. The common law authorities relied on by the Chief Justice were Bankim Thanki (ed) The Law of Privilege (Oxford University Press, Oxford, 2006) at [3.69] and Re Thomas Holloway (1887) 12 PD 167 (CA).Section 56 said:
’56 Privilege for preparatory materials for proceedings
(1) Subsection (2) applies to a communication or information only if the communication or information is made, received, com- piled, or prepared for the dominant purpose of preparing for a proceeding or an apprehended proceeding (the proceeding).
(2) A person (the party) who is, or on reasonable grounds con- templates becoming, a party to the proceeding has a privilege in respect of—
(a) a communication between the party and any other person;
(b) a communication between the party’s legal adviser and any other person;
(c) information compiled or prepared by the party or the party’s legal adviser;
(d) information compiled or prepared at the request of the party, or the party’s legal adviser, by any other person.’
That compares with s. 119 of Victoria’s Evidence Act, 2008, which says:
‘119. Litigation
Evidence is not to be adduced if, on objection by a client, the court finds
that adducing the evidence would result in disclosure of-
(a) a confidential communication between the client and another person, or
between a lawyer acting for the client and another person, that was
made; or
(b) the contents of a confidential document (whether delivered or not)
that was prepared-
for the dominant purpose of the client being provided with professional legal
services relating to an Australian or overseas proceeding (including the
proceeding before the court), or an anticipated or pending Australian or
overseas proceeding, in which the client is or may be, or was or might have
been, a party.’
