How the other side’s barrister can see your witness’s proof of evidence

When you are preparing witnesses for trial — expert and lay witnesses, party and non-party witnesses alike — you should bear in mind that the other side’s barrister can call for all documents which the witness has used to refresh their memory, whether or not they are privileged.  Even the client’s proof of evidence, a privileged document drawn up by his or her solicitor, and in some ways the centrepiece of the privileged file, may be called for, if the client used it in preparation for trial.  Even — GET THIS! — a barrister’s opinion in the matter (as in Grundy v Lewis [1998] FCA 1537), if the client witness has read over it by way of preparation for trial.  The fact of the existence of a proof of evidence is not, of course, enough for it to be called for (Justice Refshauge said ‘If [the witness] had read it to check it was accurate, to see that it was complete, to add additional material of instruction to her lawyer or to excise inaccuracies or irrelevancies, that would not justify its production following a call.’).  It must have been used by the witness to refresh his or her memory for the purposes of giving evidence in court (or of being cross-examined, in the case of evidence given on affidavit).  All this is the clear message from Spalding v Radio Canberra Pty Ltd [2009] ACTSC 26,  a defamation case. Radio Canberra’s barrister was cross-examining the plaintiff.  It went like this: Continue reading “How the other side’s barrister can see your witness’s proof of evidence”

Solicitors’ duty to assert client’s legal professional privilege

Update, 19 April 2009: See also the duty to test the validity of purported exercises of compulsion which, if valid, will trump the duty of confidentiality codified in r 6.3 of the Law Society’s Professional Conduct Rules 1983:

‘A practitioner shall not without the consent of his client directly or indirectly reveal that client’s confidence or use it in any way detrimental to the interests of that client or lend or reveal the contents of the papers in any brief or instructions to any person except to the extent required by law, rule of court or court order

provided that where there are reasonable grounds for questioning the validity of the law, rule or order he shall first take all reasonable steps to test the validity of the same’.

Original post: Those who call legal professional privilege ‘client legal privilege’ describe it more accurately. It is the client’s privilege. Recently, a lawyer sought my advice.  His file had been subpoenaed by someone other than his client. I knew, but could not immediately find authority for the proposition, that a lawyer has a duty to assert the client’s privilege. Today, I came across some authority for the proposition.  In Spalding v Radio Canberra Pty Ltd [2009] ACTSC 26, Justice Refshauge said at [17]:

‘with legal professional privilege, the privilege is that of the client, but it is the duty of the client’s lawyer (or lawyers) to claim the privilege if it exists.’

His Honour cited: Re Stanhill Consolidated Ltd [1967] VR 749 at 755, though the proposition is really to be found at 756, and there must be a better articulation of the point somewhere. I suspect that the solicitor’s duty is in fact only to give the client the opportunity to appear to assert the client’s privilege.  I do not think the solicitor has an obligation to work up, at his own expense, arguments in support of claims for privilege over many documents.

Robyn Tampoe, Schapelle Corby’s solicitor

Update, 10 June 2009: Mr Tampoe has been struck off the roll of solicitors.

Update, 7 July 2008: Watch the video of Tampoe slagging off his client here.

Original post: Lawyers and their regulators should care about the Corby case, because at the relevant time, a lot of people loved Schapelle and Schapelle does not now much like her lawyers. One of them has hit back, calling the Corbys “the biggest pile of trash I have ever come across in my life”. People will think this is normal, or at least the tip of the iceberg. And much confusion seems to be going around about Mr Tampoe’s fabrication of a defence for Corby. For giving this interview, and saying this, I condemn Mr Tampoe, who is no longer a solicitor, with all my fibre. What I question below is whether the media have got their reportage of his claim to have completely fabricated the defence right — if he means what I imagine he means, I say — so what? Whether or not the media have got it right, I reckon his comments might well harm his former client. They could have been personally deeply hurtful, they could affect her treatment in jail, they could affect any claim for clemency she might in the future make, and they could affect the result of the prisoner exchange treaty negotiations underway between the Australian and Indonesian governments, or the speed with which they progress. Continue reading “Robyn Tampoe, Schapelle Corby’s solicitor”

Getting documents out of insurers

If I recall correctly, one of my first contested hearings as a young solicitor was about whether the claim for privilege over a loss adjuster’s report in an affidavit of documents drafted by me was kosher.  I went on to write an article on the subject in that august journal, the newsletter of Women in Insurance’s Victorian chapter.  The law was all over the place.  Now Wotton & Kearney have put out a note of a substantial decision on the same issues: privilege of documents in the hands of an insurer brought into existence at a time when proceedings were merely anticipated.  The case is Southland Coal Pty Ltd (Receivers & Managers Appointed) (In Liquidation) [2006] NSWSC 899.  It is a decision which is favourable towards insurers and takes an expansive rather than restrictive approach to the question.  The article appears in the firm’s inaugural annual insurance review, but its author, Sydney senior associate Brendan Hammond has given me permission to reproduce it.

This is one of the points made:

‘some of the disputed documents were emails exchanged between officers of the insurer, or between an officer of the insurer and a third party. It was held that the issue was not whether those emails were privileged but whether granting access to them would result in disclosure of privileged communications such as the provision of legal advice by the insurer’s lawyers.’

That is consistent with Justice Chernov’s majority view of waiver in Spotless Group Ltd v Premier Building & Consulting Pty Ltd [2006] VSCA 201, and inconsistent with Neave JA’s minority view.  Now, here’s the article in full:

Continue reading “Getting documents out of insurers”