HUNT & ATKINS

This matter concerned an application by the husband, Hunt, to adduce evidence from Dr CC, a medical practitioner, in proceedings between himself and the wife, Atkins. The wife objected to the adduction of this evidence, claiming client legal privilege. The court was required to determine whether the evidence of Dr CC, and specifically an affidavit sworn by him, was protected by client legal privilege.

The central legal issue was whether the privilege claimed by the wife in relation to Dr CC's affidavit and proposed oral evidence extended to the disclosure and inspection of documents in pending litigation, rather than solely to the admission of evidence. The court had to consider the application of sections 118 and 119 of the Evidence Act and how they interacted with the common law principles of client legal privilege in the context of ancillary processes to litigation.

The court reasoned that sections 118 and 119 of the Evidence Act, which create a statutory privilege for confidential communications and documents prepared for the dominant purpose of providing legal services, are limited to the admission of evidence. Drawing on High Court authority in *Mann v Carnell* and *Esso Australia Resources Ltd v Federal Commissioner of Taxation*, the court held that these statutory provisions do not govern ancillary processes such as disclosure and inspection. Instead, the determination of whether client legal privilege attaches in such circumstances is to be made according to common law principles. The court further noted that the common law test for client legal privilege also employs the dominant purpose test. In this instance, the wife first consulted Dr CC in 2001 for treatment of adjustment disorder and depression, a relationship established long before the parties' separation. There was no suggestion that the wife's lawyers were involved in her decision to consult Dr CC or that he was retained for the purpose of obtaining legal advice or services.

Consequently, the court found that the relationship between the wife and Dr CC was not established for the dominant purpose of providing legal services. Therefore, the privilege claimed by the wife was not made out, and the court ordered that the evidence of Dr CC was not privileged and could be adduced.