Case: Talbot v NRMA Ltd [2000] NSWSC 602
Outcome: referred to
Section 121 provides three ways in which client legal privilege does not prevent the adducing of evidence. Clearly, neither subsection (1) (which applies where the client or party has died) nor subsection (2) (which applies where the court would be prevented from enforcing an order of an Australian court were the evidence not adduced) apply. Subsection (3) provides: (3) This Division does not prevent the adducing of evidence of a communication or document that affects a right of a person. The subsection has been interpreted narrowly and requires that the communication affect a right directly, and not merely be relevant to a right or be evidence of a right otherwise created or affected. In Talbot v NRMA Ltd [2000] NSWSC 602 , Hodgson CJ in Eq observed (at [3]): [the words] cannot mean a communication or document that is relevant to a right of a person because that would virtually eliminate the legal professional privilege as a ground for non-admission of evidence. In my opinion, that must mean a communication or document that affects in some fairly direct way what are the actual rights and perhaps also duties of a person. I respectfully agree and in my opinion it was clear that the subsection had no application to the present case. 142 Section 122 , which deals with loss of client legal privilege by consent, required close examination on the facts of the present case. The section provides: 122 Loss of client legal privilege: consent and related matters (1) This Division does not prevent the adducing of evidence given with the consent of the client or party concerned. (2) Subject to subsection (5), this Division does not prevent the adducing of evidence if a client or party has knowingly and voluntarily disclosed to another person the substance of the evidence and the disclosure was not made: (a) in the course of making a confidential communication or preparing a confidential document; or (b) as a result of duress or deception; or (c) under compulsion of law; or (d) if the client or party is a body established by, or a person holding office under, an Australian law to the Minister, or the Minister of the State or Territory, administering the law, or the part of the law, under which the body is established or the office is held. (3) Subsection (2) does not apply to a disclosure by a person who was, at the time, an employee or agent of a client or party or of a lawyer unless the employee or agent was authorised to make the disclosure. (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 office under, an Australian law to the Minister, or the Minister of the State or Territory, administering the law, or the part of the law, under which the body is established or the office is held. (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 disclosure, a common interest relating to a proceeding or an anticipated or pending proceeding in an Australian court or a foreign court. (6) This Division does not prevent the adducing of evidence of a document that a witness has used to try to revive the witness's memory about a fact or opinion or has used as mentioned in section 32 (attempts to revive memory in court) or 33 (evidence given by police officers).