Privilege

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StudentatLaw - Legal notes for Law Students - http://www.studentatlaw.com 3. Privilege http://www.studentatlaw.com/articles/136/1/3-Privilege/Page1.html By Student at Law Published on 2/07/2007 Privilege
5.1 Client Legal Privilege Basic Rule: Confidential communications passing between client & legal adviser dont have to be disclosed by the client and may not be disclosed by the legal adviser without clients consent if they were made: - For purpose of seeking or giving legal advice; or - With reference to actual or contemplated litigation Note: consent by the client will waive disclosure. The privilege is that of the client The rationale of this head of privilege promotes the public interest because it assists and enhances the administration of justice by facilitating the representation of clients by legal advisersthis it does by keeping secret their communications, thereby inducing the client to retain the solicitor and seek his advice, and encouraging the client to make a full and frank disclosure of the relevant circumstances to the solicitorThis privilege reflects the paramountcy of this public interest over the general public interest of a fair trial on the footing that all relevant documentary evidence is available (Grant v Downs per Stephen, Mason and Murphy JJ) DOMINANT PURPOSE TEST - WHEN IS A DOC PRIVILEGED? Grant v Downs (1976) HCA Facts: Woman sued psychiatric hospital for the death of her husband - sought access to a report written after his death, and hospital claimed CLP on grounds that one purpose of the report was to obtain legal advice. Held: Court unanimously said document was not privileged - although majority adopted the sole purpose test (which has been rejected) - The communication would have to come into existence for the sole purpose of legal proceedings, or anticipated legal proceedings. Barwick CJ preferred the dominant purpose test - the communication would have to come into existence for the dominant purpose of legal proceedings, or anticipated legal proceedings. Primary or Substantial purpose is not enough the purpose must be dominant Fact that a person had other purposes in mind when creating the document wont deny it privilege, nor will the fact that it was a routine document so long as the dominant purpose was legal. Mere fact that the document may prove useful in litigation doesnt give it CLP. Baker v Campbell (1983) The privilege should extend to all communications between lawyer and client and not just in relation to litigation The rationale behind the privilege applies equally whether there is litigation or not Esso v FCT (adopts dominant purpose test from Evidence Act) Facts: Challenge by Esso to a tax assessment by FCT - Esso claimed CLP in relation to documents on the basis that they were prepared for the dominant purpose of giving or receiving legal advice. Issues: Case fell outside the Evidence Act, so question was whether the sole purpose test should apply or whether the Common Law should be changed to have a dominant purpose test. Held: The Court overturned the majority in Grant v Downs , saying that the Evidence Act set a new standard and thus Barwick CJs view should be adopted. Dominant Purpose Test - a document produced with the dominant purpose of using it or its contents in order to obtain legal advice or to aid in the conduct of actual/contemplated litigation, attracts CLP. Sparnon v Apand Pty Ltd If there are 2 purpose of equal weight then one doesnt dominate the other Therefore dominant purpose includes a document that was brought into existence for the purpose of legal communications notwithstanding that some ancillary use of the document was anticipated at the time of its creation. Australian Federal Police Commissioner v Propend Finance Pty Ltd (1996) If a copy of non-privileged document is made for dominant purpose of legal communications, the copy is privileged - the only exception is that if the original is not in existence/lost/inaccessible and there is no other evidence to prove the content of the original, then the copy loses its privilege. STATUTE: Part 23 r1 SCR - documents which are privileged under the Evidence Act are also privileged in pre-trial procedures. Part 24 r 6 SCR - communications protected by the Evidence Act dont need to be disclosed in interrogatories
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Definitions s117 (1) Client includes the following: (a) an employer (not being a lawyer) of a lawyer; (b) an employee or agent of a client; (c) an employer of a lawyer if the employer is a statutory body (d) a manager, committee or person acting in respect of a person of unsound mind; (e) if a client has dieda personal representative; (f) a successor to the rights and obligations of a client, being rights and obligations in respect of which a confidential communication was made.; Confidential communication/document means when a communication/document was made, the giver or receiver was under an express or implied obligation not to disclose its contents, whether or not the obligation arises at law. Legal Advice s118 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 made between the client and a lawyer; or (b) a confidential communication made between 2 or more lawyers acting for the client; or (c) the contents of a confidential document (whether delivered or not) prepared by the client or a lawyer; for the dominant purpose of the lawyer, or one or more of the lawyers, providing legal advice to the client. On objection by the client ie. clients sole prerogative to disclose If a document is privileged, cant adduce evidence of a copy of the document because the definition of a document includes a copy of the document. Could argue that non-privileged parts of a document are severable from the privileged parts because definition of a document includes part of a document. Communications with 3rd parties, even if made for the dominant purpose of legal advice, are not privileged under s118
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Litigation s119 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. Legal services includes legal advice and representation during trial and interlocutory proceedings. Relevant intention is at the time of document creation therefore, the fact that it was intended to be confidential at the time it was handed down to the lawyer for the purposes of litigation is not determinative. Proceedings are anticipated if contemplated - mere apprehension is not enough. Extends to communications with 3rd parties - rationale is to encourage production of information for litigation. This is the reason for it being in a separate section. Unrepresented parties s120(1) Evidence is not to be adduced if, on objection by a party who is not represented in the proceeding by a lawyer, the court finds that adducing the evidence would result in the disclosure of: (a) confidential communication between the party and another person; or (b) the contents of a confidential document that was prepared, at the direction/request of the party; for the dominant purpose of preparing for/conducting the proceedings Loss of client legal privilege: generally s121 (1) This Division does not prevent the adducing of evidence relevant to a question concerning the intentions, or competence in law, of a client or party who has died. (2) This Division does not prevent the adducing of evidence if, were the evidence not adduced, the court would be prevented, or it could reasonably be expected that the court would be prevented, from enforcing an order of an Australian court. (3) This Division does not prevent the adducing of evidence of a communication or document that affects a right of a person. Loss of client legal privilege: consent and related matters (Waiver of Privilege) s122(1) Privilege is waived by the consent of the client or party concerned - doesnt have to be words of consent can be implied from the circumstances s122(2) If the substance of the evidence contained in that communication has been disclosed to another person knowingly and voluntarily in
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the first instance, privilege has been waived - look at whether that person has knowingly and voluntarily disclosed it - look at the circumstances in which they disclosed it the circumstances may indicate that the person didnt give up privilege (read in conjunction with s123(3) & (5).) Evidence can not be adduced if disclosure was: (a) made in the course of making a confidential communication; or (b) as a result of duress or deception; or (c) under compulsion of law; s122(3) Subsection (2) does not apply to a disclosure by a person who was, at the time, an employee or an agent of a client or party of a lawyer unless the employee or agent was authorised to make the disclosure- this section does not incorporate the concept of fairness that the common law considers. Mann v Carnell Facts: Mr Mann was a surgeon in the ACT. He sued the ACT Government for breach of contract and defamation and settled that with the government-he then wrote to his local member and told him the proceedings were a waste of money and the government had wasted their money. The local member then wrote to Kate Carnell (head of ACT Government) saying it was a waste of money - Ms Carnell wrote back to the MP to explain the circumstances of the proceedings and enclosed with that letter, advices the government had from barristers as to their legal position. Mann found out the documents had been sent to his MP and was concerned these documents were repeating defamatory statements against him -he sought discovery to get access to these documents. Issues: Mann claimed the privilege over the documents was lost when the documents were passed on to his MP. Held: FC turned to s122 Evidence Act and applied this section - this is pre-trial though and therefore the common law rules apply the judges were wrong. HCA - look at whether the disclosure of the document is consistent with the notion of confidentiality, because privilege is waived if disclosure is inconsistent with confidentiality. In this case, the purpose of the privilege was to protect the ACT from subsequent disclosure of legal advice regarding Manns litigation. Hence the privilege was not inconsistent with the Minister giving advice on a confidential basis to the MP to explain the ACTs conduct with respect to the litigation. The common law has 2 considerations when determining whether disclosure waives privilege inconsistency with maintenance of confidentiality, and fairness (relevant to a determination as to whether there was such an inconsistency). Must disclose the substance of the evidence - the mere fact that you mention you have got advice does not mean you have disclosed the substance of the advice. Sovereign Motor Inns v Bevillesta Facts: Plaintiff was a tenant and he had some problems with his landlord - plaintiff went to see his lawyer, got advice, but before they started proceedings in court to try and get damages, the land lord had fixed up most of the problems (not all). Nevertheless, the Plaintiff wanted to sue the defendant - the lawyer wrote to the client (tenant) and said well, well use the proceedings to force the landlord to be more compliant and well do it in equity because it will take longer for the proceedings to come before the court and it will keep the landlord on his toes for longer. Orders for discovery were made in the main proceedings and the Plaintiff filed his list of documents setting out the documents which could be discovered by the Defendant. The list was in 2 parts the second part set out some 370 documents and categories of documents which he claimed were privileged - accidentally the letter (which was on the privileged list) was made available to the defendants lawyers. Defendants tagged the documents they wanted the plaintiff to give them copies of. 12 months and nothing happened defendants wrote to plaintiffs saying where are the documents? and you are bringing this claim to keep us on our toes indicating they knew about what was in the privileged letter. Plaintiff sent all the stuff to defendant sent a copy of the letter and they never bothered to check that no privileged documents were sent off. The matter went to court and the D wanted to admit the letter into evidence. Judge had to decide whether privilege had been waived by all the preceding events. Issues: Is the letter covered by legal professional privilege? No issue as to whether there was duress etc. It was straight disclosure, was it done knowingly and voluntarily (s122(2))? Was it done with express or implied consent (s122(4))? Held: Yes it is covered by CLP - the dominant purpose is to provide legal advice. Judge decided that there was not knowing or voluntary disclosure - therefore there was no waiver of privilege. Express/Implied Consent to Disclosure to a Person other than a Client or Party s122(4) Subject to subsection (5), this Division does not prevent the adducing of evidence if the substance of the evidence has been disclosed with the express or implied consent of the client or party to another person other than: (a) a lawyer acting for the client or party; or (b)if the client or party is a body established by, or a person holding an office under, an Australian law the relevant Minister. s122(5) Subsections (2) and (4) do not apply to: (a) a disclosure by a client to another person if the disclosure concerns a matter in relation to which the same lawyer is providing, or is to provide, professional legal services to both the client and the other person; or (b) a disclosure to a person with whom the client or party had, at the time of the disclosure, a common interest relating to a proceeding or an anticipated or pending proceeding in an Australian
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court or a foreign court. s123 - CLP is lost if a client, who is a defendant in a criminal trial, adduces something that was privileged in evidence - if they are cross-examining a witness and the witness claims privilege, the privilege does not apply (it only applies if it is privilege re a co-defendant) s124 - In joint-party proceedings privilege is lost if one joint-party adduces evidence. s125 - CLP is lost if the communication was in furtherance of fraud , misconduct etc. or an abuse of power (a power conferred under Australian law) This exception runs through all species of privilege we will look at:

Kwan v Kwan Facts: Proccedings concerning Woowins, and Kwan as defendants, as well as a Kwan as a plaintiff. Proceedings involved a solicitor named Sternberg. Issues: Woowins had filed defence and then fled - could the Woowins who werent even there object to the production of certain documents? Had Sternbergs (solicitor) documents lost their confidentiality or privilege? Mr Sternberg wasnt at court he sent the documents off to the court, apparently not claiming any privilege. Held: Did failure of Woowins to appear mean that they were not taking the objection pursuant to s118 - client must take the objection. Solicitor and barrister were taking the objection, they had an obligation to take the objection on their behalf - the fact that the Woowins didnt participate didnt mean they had not told their solicitors to take the objection. Also, it was taken pursuant to s122(1) that Mr Sternberg had consented to the evidence being adduced - therefore privilege was lost. It was discovered on the day the judgment was being handed down, that Mr Sternberg had actually included a letter with his documents and had stated that there may be privilege on some of the documents (nobody had seen this previously). The person who found it got in touch with the judge-but people had seen the document anyway. The judge said they were no longer privileged there had been an order of the court made giving access to the documents and they had been used in the proceedings and were no longer confidential pursuant to s118. MODEL FOR PRIVILEGE Other party/witness takes objection OR you may take objection on behalf of your client. Is it privileged? (yes) Then has privilege been lost? (no) is there a power available to the court to allow admission/inspection. Or has privilege been lost? (yes) then admissible and available. 5.2 Privilege for Other Professional Communications PROFESSIONAL CONFIDENTIAL RELATIONSHIP PRIVILEGE This is a privilege which only applies in the NSW Act - it is a creation of statute and does not exist at the common law. The privilege protects confidential communications and documents recording such communications between the confidant and the confider that result from a relationship in which the confidant is acting in a professional capacity. The confidant must be under an express or implied obligation not to disclose the contents of the communication or document. It also prevents the giving of evidence that will reveal the identity of a person who has said something in confidence eg doctor/patient. s126A - Definitions Harm includes actual physical bodily harm, financial loss, stress or shock, damage to reputation or emotional or psychological harm (such as shame, humiliation or fear). Protected Confidence means a communication made by a person (confider) in confidence to another person (confidant): (a) in the course of a relationship in which the confidant was acting in a professional capacity; (b)when the confidant was under express or implied obligation not to disclose its contents, whether or not the obligation arises under law or can be inferred from the nature of the relationship between the person and the confidant. s126B Exclusion of evidence (1) The Court may direct that evidence not be adduced in a proceeding if the court finds that adducing it would disclose: (a) a protected confidence, or (b) the contents of a document recording a protected confidence, or (c) protected identity information. (2) The Court may give such a direction: (a) of its own initiative, or
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(b) on the application of the protected confidant or confider concerned (3) The Court must give such a direction if it is satisfied that: (a) it is likely that harm would or might be cause to a protected confider ; and (b) the nature and extent of the harm outweighs the desirability of the evidence being adduced. (4) Without limiting the matters that the court may take into account for the purposes of this section, it is to take into account the following: (a) the probative value of the evidence in the proceeding; (b) the importance of the evidence in the proceeding (c) the nature and gravity of the relevant offence, cause of action of the defendant and the nature of the subject matter of the proceeding; (d) the availability of any other evidence concerning the matter to which the protected confidence or protected identity information relates; (e) the likely effect of adducing the information, including the likelihood of harm, and the nature and extent of harm that would be caused to the protected confider; (f) the means available to the court to limit that harm; (g) if a criminal proceeding, whether the party seeking to adduce the evidence is a defendant or prosecutor;(h) whether the substance of the protected confidence has already been disclosed. s126(c) - the confider can waive privilege through consent. s126(d) - if the communication was in furtherance of a fraud etc, the privilege is lost. Part 36 r 14 - incorporates this privilege into pre-trial procedures. SEXUAL ASSAULT COMMUNICATIONS PRIVILEGE Only in NSW Act - similar to professional relationship privilege. Substantive provisions are contained in the Criminal Procedure Act. Evidence Act s126H if evidence is privileged in criminal proceedings, the evidence will also be privileged in a civil proceeding on the same facts. A privilege protecting the communications made between a victim, or alleged victim of a sexual assault and someone who is acting as a counsellor. To rebut the privilege the court must be satisfied that: 0. the evidence has substantive probative value 0. other evidence of the confidence is not available 0. the public interest in protecting confidences and the confider from harm is substantially outweighed by the public interest in the information or document being inspected or adduced into evidence R v Young In this case the defendant subpoenaed documents from the victims counselling sessions. The Court considered whether the Common Law protected communications made by a rape victim to a sexual assault counsellor. The majority held that if it was not covered by a statute, there was no Common law Protection for it - common law has never recognised a privilege in relation to confidential communications. After this case, the protection of statements made to sexual assault counsellors was incorporated into the Criminal Procedure Act, so now it applies pre-trial as well (i.e. applies to the production of documents not involving the adducing of evidence). In a civil rape case it is not necessary to rely on the Criminal Procedure Act, as you can use general privilege under s126B, which under Part 23 r 1 of the SCR extends to pre-trial procedures as well.

RELIGIOUS CONFESSIONAL PRIVILEGE: s127 (1) A person who is or was a member of the clergy of any church or religious denomination is entitled to refuse to divulge that a religious confession was made, or the contents of a religious confession made, to the person when a member of the clergy. (2) Subsection (1) does not apply if the communication involved in the religious confession was made for a criminal purpose. (4) In this section: religious confession means a confession made by a person to a member of the clergy in the member's professional capacity according to the ritual of the church or religious denomination concerned. This was introduced by the Evidence Act, and no common law protection has been given to religious confessions - it is untested by case law. Statute, not common law. The wishes of the confessor are irrelevant - disclosure is the prerogative of the priest (there is in fact no express provision for loss of privilege) 5.3 Settlement Negotiations Privilege
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What is it? The contents of a statement made in an attempt to settle a dispute cannot be put into evidence It is a joint privilege of both the parties Purpose To enable parties engaged in an attempt to compromise litigation to communicate with one another freely and without the embarrassment which the liability of their communications to be put in evidence subsequently might impose on them. The law relieves them of this embarrassment so that their negotiations to avoid litigation or to settle it may go unhampered. (Field v Commissioner for Railways) COMMON LAW (pre-trial): Without prejudice the rule applies to exclude all negotiations genuinely aimed at settlement whether oral or in writing, from being adduced in evidence. To establish the negotiation privilege attaches, there needs to be: (1.) admission (2.) a genuine attempt to settle Court will go voir dire in order to decide whether a communication is an admission Rush & Tompkins Ltd v Greater London Council Facts: R&T and GLC entered into a building contract - R&T subcontracted to Carey, who sued R&T for expense due to delay in completion - R&T sued GLC for reimbursement of Careys claim. Correspondence marked without prejudice between R&T and GLC - GLC gave R&T 1.2 million to meet Careys claim Held: Correspondence was privileged Negotiation privilege was not dependant on use of the phrase without prejudice - If it is clear from surrounding circumstances that the 2 factors mentioned above are present, the evidence wont be admissible. Without prejudice communications are not only protected as between parties to communication, but they are also protected from production to other parties in the same litigation. The Court also extended negotiation privilege to discovery. Field v Commissioner of Railways Facts: Field was injured on a train - railways asked Field to attend for a medical examination so they could ascertain an appropriate figure to offer for settlement. Went to see Dr and he told the Dr that the train was already moving when he tried to get off it (contrary to his statement that train moved while he was getting off.) Negotiations broke down because this new evidence emerged which could be used against him. Issue: Could what he said to the Dr be used against him in evidence? Held: Statement was not protected by negotiation privilege Negotiation privilege is directed at express or implied admissions, not objective facts that may be ascertained during the course of negotiations (as these can be proven using direct evidence.) In this case, the purpose of the medical exam in negotiations was to assess the level of injury - Fields statement to the doctor was outside that scope - it was not reasonably incidental to negotiations, and therefore not protected by privilege. State Rail Authority v Smith (1998) Mr Smith sued State Rail in a workers comp proceedings. Mr Smith also sued his previous solicitors for professional negligence - they commenced proceedings against the wrong defendant and by the time they fixed it, the statute of limitations had passed. Smith still had a right to sue the SRA for his weekly payments (the statute of limitations only applied re a damages claim for pain and suffering). Smith had settled with his solicitors but in the case between Smith and SRA, SRA wanted to quiz Smith about the terms of settlement with his solicitor. S131 is concerned with the communications relating to settlement. It does not apply to the settlement document itself. Where the parties contractually bind themselves not to disclose terms of a settlement, this prohibition does not apply when the disclosure is required by coercion of the law. THE EVIDENCE ACT (applies at trial): The EA is generally stricter than the Common Law rule - the exceptions under s131(2) are narrower than the Common Law exceptions. Documents which are privileged under EA are also privileged in pre-trial procedures because of Part 23 r 1 of the SCR - Part 24 r 6 provides that communications dont need to be disclosed in interrogatories. s131 Exclusion of evidence of settlement negotiations (1) Evidence is not to be adduced of: (a) a communication that is made between persons in dispute, or between one or more persons in dispute and a third party, in connection with an attempt to negotiate a settlement of the dispute; or (b) a document (whether delivered or not) that has been prepared in connection with an attempt to negotiate a settlement of a dispute. (2) Subsection (1) does not apply if: (a) the persons in dispute consent to the evidence being adduced; or (b) the substance of the evidence has been disclosed with the express or implied consent of all the persons in the dispute; or (c) the substance of the evidence has been partly disclosed with the express or implied consent of the persons in dispute, and full disclosure is reasonably necessary to enable a proper understanding of the evidence that has already been adduced; or (d) the communication or document included a statement to the effect that it
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was not to be treated as confidential; or (e) the evidence tends to contradict or to qualify evidence that has already been admitted about the course of an attempt to settle the dispute; or (f) purpose of the proceeding is to enforce an agreement to settle the dispute or in which the making of such an agreement is in issue; or (g) evidence that has been already adduced is likely to mislead the court unless evidence of the communication or document is adduced to contradict or to qualify that evidence; or (h) the communication or document is relevant to determining liability for costs; or (i) making the communication, or preparing the document, affects a right of a person; or (j) the communication was made, or the document was prepared, in furtherance of the commission of a fraud/ offence/act that renders a person liable to a civil penalty; (k) one of the persons in dispute, or an employee or agent of such a person, knew or ought reasonably to have known that the communication was made, or the document was prepared, in furtherance of a deliberate abuse of a power. (5) In this section: (a) a reference to a dispute is a reference to a dispute of a kind in respect of which relief may be given in an Australian or overseas proceeding; and (b) an attempt to negotiate the settlement of a dispute does not include a an attempt to negotiate the settlement of a criminal proceeding or an anticipated criminal proceeding (c) reference to a communication made by a person in dispute includes a reference to a communication made by an employee or agent of such a person (d) reference to the consent of a person in dispute includes a reference to the consent of an employee or agent of such a person so authorised (e) a reference to commission of an act includes a reference to a failure to act. (6) In this section power means a power conferred by or under an Australian law. 5.5 Privilege Against Self-incrimination This is not an absolute privilege - a Court can compel an answer It covers civil and criminal proceedings The rule: No one is bound to answer any question or produce any document if the answer or the document would have a tendency to expose that person to the imposition of a civil penalty or to conviction of a crime. Counsel can object to a question put to a client on the grounds that it may incriminate the witness/client - they must actually object for the privilege to apply; if the question is answered the opportunity to claim the privilege is lost. No adverse inferences may be drawn if the privilege is claimed. s128 (1) 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 a criminal offence or (b) is liable to a civil penalty. (2) Subject to subsection (5), if the court finds that there are reasonable grounds for the objection, the court should inform the witness of their options (ie they need not give evidence, and if they do they will get a certificate and be informed of its effect) (3) & (4) Outline procedures regarding certificates (5) If the court is satisfied that: (a) the evidence concerned may tend to prove that the witness has committed an offence against or arising under, or is liable to a civil penalty under, an Australian law; and (b) the evidence does not tend to prove that the witness has committed an offence against or arising under, or is liable to a civil penalty under, a law of a foreign country; and (c) the interests of justice require that the witness give the evidence; the court may require the witness to give the evidence. (6) If the court so requires, it is to give the witness a certificate (7) With the effect of giving immunity to the person for Australian proceedings (8) In a criminal proceeding, this section does not apply in relation to the giving of evidence by a defendant, being evidence that the defendant: (a) did an act, the doing of which is a fact in issue; or (b) had a state of mind, the existence of which is a fact in issue. - this only applies to evidence at trial, ie no application during police questioning Remember, documents which are privileged under EA are also privileged in pre-trial procedures because of Part 23 r 1 of the SCR - Part 24 r 6 provides that communications dont need to be disclosed in interrogatories. EPA v Caltex Refining Co (now incorporated into EA, s187) Facts: EPA brought an action against Caltex for breach of the conditions of its license allowing it to dump certain wastes into the ocean - served a s29 notice under the Clean Waters Act for the production of documents - Caltex claimed privilege against self-incrimination Held: Caltex could not claim the privilege Privilege does not extend to corporations because the same policy reasons dont apply as for the privilege in relation to individuals, for whom it is a human right - this finding is now incorporated into s 187 of the EA which states that there is no privilege against self-incrimination for bodies corporate
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