Gillett v Nelson

In the case of Gillett v Nelson, the respondent sought to rely on client legal privilege in an attempt to exclude certain documents from disclosure. The primary dispute centred around the loss of privilege under sections 121(1) and 122(2) of the Evidence Act 1995, and whether the deceased individual could be considered a client or party who had died under section 121(1). Additionally, the case examined whether the deceased client had acted inconsistently by referring to the draft legal advice in their evidence, which would result in a loss of privilege under section 122(2). Finally, the court needed to determine whether the deceased had knowingly and voluntarily disclosed the substance of the draft legal advice, as required under section 122(3) of the Act.

The court was required to interpret the relevant sections of the Evidence Act 1995 to determine whether client legal privilege was lost in this instance. The primary focus was on whether the deceased client's reference to the draft legal advice in their evidence constituted an act inconsistent with objecting to disclosure, and whether this constituted a voluntary disclosure of the advice's substance. Additionally, the court needed to ascertain whether the deceased client could be considered a client or party who had died for the purposes of section 121(1) of the Evidence Act.

The court concluded that the deceased client had not acted inconsistently with objecting to the disclosure of the draft legal advice, as they had only referred to the advice in their evidence. Furthermore, the court determined that the deceased had not knowingly and voluntarily disclosed the substance of the draft legal advice, as there was no evidence to suggest that they had done so. In relation to the deceased client's status, the court held that the deceased could indeed be considered a client or party who had died under section 121(1) of the Evidence Act. Consequently, the privilege was not lost under this provision.

As a result of the court's findings, the respondent was not required to disclose the documents in question, as client legal privilege was upheld. The court's decision provided clarity on the interpretation of sections 121(1) and 122(2) of the Evidence Act 1995, as well as the circumstances in which privilege may be lost due to a client's actions.