Justice Finkelstein’s decision in Australian Securities and Investments Commission v Mining Projects Group Limited  FCA 1620 has provided material for the last 2 posts. Now, a third. His Honour had to consider a question I have never been too sure about. Say there is a case on foot, but it’s long before trial. A solicitor for one of the parties interviews a witness. The witness says his thing. The solicitor turns it into a witness statement. The solicitor sends the witness a copy. There is no doubt that the original witness statement drafted by and retained by the solicitor is privileged under the litigation limb of legal professional privilege. But what about the copy held by the witness?
Well, though it’s clearly privileged under the uniform evidence legislation, there’s conflicting authority in relation to the position at common law. The two most recent appellate authorities say the witness statement and the copy witness statement are both privileged. On the other hand, Chief Justice French plumped for the opposite conclusion while on the Federal Court. Even if it is privileged, that cannot mean that the witness cannot say the whole thing over again to anyone else who may care to enquire, because there is ‘no property in a witness’. And I do not suppose the witness would have any positive obligation to assert the solicitor’s client’s privilege (anyone disagree?). But depending on the cirucmstances, the witness may owe an obligation of confidentiality to the solicitor’s client which would give rise to equitable rights in the solicitor’s client if the witness gave up the witness statement. Of course compulsion, such as an obligation of discovery under rules of court, properly administered interrogatories, a regulator exercising a statutory power, and a subpoena trump mere confidentiality. It may be that in the face of compulsion, only if the solicitor’s client stepped in and asserted his or her privilege over the documents would the compulsion not result in delivery up of the witness statement. Justice Finkelstein’s learned analysis went like this: Continue reading “Is the draft witness statement held by the witness privileged?”