Testing Claims To Privilege Asserted Over Documents

How does one get involved in testing a claim to privilege over documents?

When calling for documents you may on occasion find that you are informed by a party that has the required documents but not readily sharing them because they assert that the documents might be privileged.

How can you address concerns you might have in respect of a claim to privilege that might extend too far over the documents in the possession of another?

Here are a few cases that may afford some possible insight.

Vic Kids Property Pty Ltd v Kritsonis & Anor [2018] VCC 891

Vic Kids Property Pty Ltd v Kritsonis & Anor [2018] VCC 891:

51 In Barnes v Commissioner of Taxation[39], the Full Court of the Federal Court (Tamberlin, Stone and Siopsis JJ) observed, in respect of the evidence tendered before it (at [16]):

This affidavit falls far short of providing any adequate basis for claiming privilege in respect of any individual document. It consists of assertions, conclusions and generalised comments. The documents referred to are from a number of sources. The Further and Better Particulars of Statement of Claim furnished by the appellants refer to several different persons or entities who are said to have been originators of the documents. However, no evidence has been adduced from any of those persons. Most notable of all is the absence of any evidence from Mr Calder. In this context, the fact that Mr Barnes’ affidavit does not clarify the reason why any specific document came into existence means that the Court is left to consider the documents on their face and determine as best it can whether the documents are privileged. This is unsatisfactory.[Emphasis added]

52 Justice Brereton in Carbotech-Australia said at [17], referring to Barnes v Commissioner of Taxation said:

As the full Federal Court said, “this is unsatisfactory”, not only because it requires the Court to undertake the exercise of perusing an extensive amount of documentation to infer their dominant purpose, unassisted by evidence of those who might sensibly cast light on it, but also because it deprives the party opposing the claim of privilege of an opportunity to test it, and of knowledge of the material that is put before the Court for it to consider. There is also the general undesirability of the Court being compelled to consider material which it has been asked to, and may, exclude from evidence. [Emphasis added]

53 In the context of production under subpoena, Justice Brereton in Hancock v Rinehart (Privilege)[40] held at [7] in a similar application that:

To sustain a claim of privilege, the claimant must not merely assert it; but must prove the facts that establish that it is properly made. Thus a mere sworn assertion that the documents are privileged does not suffice, because it is an inadmissible assertion of law ; the claimant must set out the facts from which the court can see that the assertion is rightly made or in other words “expose … facts from which the [court] would have been able to make an informed decision as to whether the claim was supportable”. The evidence must reveal the relevant characteristics of each document in respect of which privilege is claimed, and must do so by admissible direct evidence, not hearsay. [Emphasis added]

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Disclaimer: Testing A Claim Privilege Over Documents

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