Era v armstrong 2013 250 clr 303 those considerations

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ERA v Armstrong (2013) 250 CLR 303
Those considerations, articulated in relation to waiver at common law, apply with equal force in relation to the statutory question posed by s 122(2) of the Evidence Act, and made applicable by s 131A of that Act to the determination of a question of waiver of client legal privilege arising in the context of pre-trial discovery. That question is whether the client or party concerned “has acted in a way that is inconsistent with the client or party objecting to” the production of a document. The primary judge's findings point to an inconsistency in the Lists of Documents, but not one which clearly suggests abandonment of the privilege. ERA v Armstrong (2013) 250 CLR 303
ERA v Armstrong (2013) 250 CLR 303 “The position of solicitors who are in receipt of privileged documents has another dimension. Rule 31 of the Australian Solicitors' Conduct Rules, which were adopted by the Law Council of Australia, deals with the duty of a solicitor to return material, which is known or reasonably suspected to be confidential, where a solicitor is aware that its disclosure was inadvertent. It involves notifying the other solicitor of the disclosures and returning that material… Such a rule should not be necessary. In the not too distant past it was understood that acting in this way obviates unnecessary and costly interlocutory applications… This approach is important in a number of respects. One effect is that it promotes conduct which will assist the court to facilitate the overriding purposes of the CPA. It is an example of professional, ethical obligations of legal practitioners supporting the objectives of the proper administration of justice.”
DPP (NSW) v Stanizzo [2019] NSWCA 12 Director of Public Prosecutions (NSW) v Stanizzo [2019] NSWCA 12 (14 February 2019) S119 privilege extends to DPP as a s117 client of its own lawyers advising it (so a broad scope of application). S125 loss of privilege due to misconduct not applicable. “ There was nothing in the evidence admitted on the application, including the statement of Mr Barr, justifying the findings that each of Ms Valvano and Mr Badarne “falsely and maliciously induced the prosecution of [Mr Stanizzo] by making false and malicious allegations to the police ” [40] Also no evidence that the DPP knew or ought to have known any communications were false.
Negotiations privilege (without prejudice communications) Where communication is brought into existence to settle a dispute (or attempt to settle a dispute) then it is privileged per s131 Evidence Act. NB Negotiations privilege does not attach to negotiations about matters other than dispute settlement eg contractual negotiations.
S131 Evidence Act 131 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.

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