Reported Decision:
53 NSWLR 664
New South Wales
Court of Appeal
CITATION: R v. P [2001] NSWCA 473 revised - 29/01/2002 FILE NUMBER(S): CA 40675/01 HEARING DATE(S): 28 November 2001 JUDGMENT DATE:
13 December 2001PARTIES :
R - Appellant
P - RespondentJUDGMENT OF: Mason P at 1; Hodgson JA at 3; Ipp AJA at 70
LOWER COURT JURISDICTION : Supreme Court - Equity Division LOWER COURT
FILE NUMBER(S) :P29/01 LOWER COURT
JUDICIAL OFFICER :Windeyer J
COUNSEL: Mr. S.G. Campbell for appellant
Mr. K. Andrews for respondentSOLICITORS: Connery & Partners, Sydney for appellant
W.H. Parsons & Associates, Sydney for respondentCATCHWORDS: EVIDENCE - Privilege - Legal professional privilege or client legal privilege - Exceptions - Whether displaced in protective proceedings - Opinion evidence - Whether admissible if based on privileged communications - Protected reports - COURTS AND JUDGES - Appeal - Objection to evidence not taken below - Whether can be taken on appeal - MENTAL HEALTH - PROFESSIONS - Lawyers - Duties to client - Privilege - Duty of confidence - Conflict of interests - Lawyer believes client incapable of giving rational instructions - Whether lawyer can take protective proceedings against client - Whether lawyer can use or disclose confidential information in such proceedings. D. LEGISLATION CITED: Evidence Act 1995 ss.4, 9, 119-122, 126A, 126B, 132, 134, 135
Protected Estates Act 1983 s.13CASES CITED: Ramsay v. Watson (1961) 108 CLR 648
Paric v. John Holland (Constructions) Pty. Ltd. (1985) 59 ALJR 844
Makita (Australia) Pty. Ltd. v. Sprowles [2001] NSWCA 305
Waterford v. The Commonwealth (1986-87) 163 CLR 54
Esso Resources v. Federal Commissioner of Taxation (1999) 201 CLR 49 at 64-5
Parry-Jones v. The Law Society [1961] 1 Ch. 1
Brayley v. Wilton [1976] 2 NSWLR 495
Church v. Price [2000] NSWSC 754
In Re L (A Minor) [1977] AC 16
Baker v. Campbell (1983) 153 CLR 53
Water v. Northmore Hale Davey & Leake (1994-95) 183 CLR 121
McD v. McD [1983] 3 NSWLR 81
Sevic v. Roarty (1998) 44 NSWLR 287
Conlon v. Conlon Ltd. (1952) 2 AllER 462
Corporate Affairs Commission (NSW) v. Yuill (1991) 172 CLR 319
Trade Practices Commission v. Sterling (1979) 36 FLR 244 at 245-6
Kennedy v. Lyell (1883) 23 Ch.D. 387
Lyell v. Kennedy No.2 (1883) 9 AC 81
Steffen v. Ruben (1966) 84 WN(Pt.1)(NSW) 264
Pownall v. Conlan Management Pty. Ltd. (1995) 12 WAR 370DECISION: See par.69 of judgment
CA 40675/01
P 29/01
MASON P
HODGSON JA
IPP AJA
R v. P
Judgment
1 MASON P: I agree with Hodgson JA.
2 I reserve my position on the issue upon which Hodgson JA and Ipp AJA have expressed differing views (ie the admissibility of the opinions of Dr. Bell and Dr. Lewin). Even if those opinions were entirely inadmissible the orders proposed by Hodgson JA should be made for the reasons he has given.
This is an appeal brought by leave from orders made by Windeyer J on 6th August 2001,…
Continue reading R v P
Sign in free to access the full text
Details
- AGLC
- R v P [2001] NSWCA 473
- Case
- [2001] NSWCA 473
- Decision Date
CaseChat Overview and Summary
The appeal concerned the admissibility of opinion evidence in protective proceedings brought by a solicitor against their client. The solicitor sought to rely on an expert report, which was based on confidential communications with the client, to support their application for orders protecting the client's person and estate. The central dispute revolved around whether legal professional privilege and the duty of confidence could be displaced in such circumstances, and whether an objection to the admissibility of the evidence, not raised in the primary court, could be taken on appeal.
The Court of Appeal was required to determine whether a solicitor, who believes their client is incapable of giving rational instructions, can initiate protective proceedings against that client. Furthermore, the court had to consider whether the solicitor could lawfully use or disclose confidential information obtained from the client in those proceedings, and whether opinion evidence derived from such privileged communications was admissible. The court also had to decide whether an objection to the admissibility of evidence, not raised at first instance, could be considered on appeal.
The Court held that a solicitor may, in certain circumstances, take protective proceedings against a client if they reasonably believe the client is incapable of managing their affairs and that such proceedings are in the client's best interests. The court reasoned that the duty of confidence and legal professional privilege are not absolute and can be displaced where necessary to protect the client's welfare, particularly when the client is vulnerable. The court further held that opinion evidence based on privileged communications may be admissible in such protective proceedings, provided the disclosure is justified by the circumstances and the evidence is otherwise relevant and admissible. The court also confirmed that an objection to evidence not taken below may be permitted on appeal if it raises a question of law and its admission would lead to a miscarriage of justice.
The appeal was dismissed, with the Court of Appeal upholding the primary judge's decision regarding the admissibility of the evidence and the solicitor's right to bring protective proceedings.
The Court of Appeal was required to determine whether a solicitor, who believes their client is incapable of giving rational instructions, can initiate protective proceedings against that client. Furthermore, the court had to consider whether the solicitor could lawfully use or disclose confidential information obtained from the client in those proceedings, and whether opinion evidence derived from such privileged communications was admissible. The court also had to decide whether an objection to the admissibility of evidence, not raised at first instance, could be considered on appeal.
The Court held that a solicitor may, in certain circumstances, take protective proceedings against a client if they reasonably believe the client is incapable of managing their affairs and that such proceedings are in the client's best interests. The court reasoned that the duty of confidence and legal professional privilege are not absolute and can be displaced where necessary to protect the client's welfare, particularly when the client is vulnerable. The court further held that opinion evidence based on privileged communications may be admissible in such protective proceedings, provided the disclosure is justified by the circumstances and the evidence is otherwise relevant and admissible. The court also confirmed that an objection to evidence not taken below may be permitted on appeal if it raises a question of law and its admission would lead to a miscarriage of justice.
The appeal was dismissed, with the Court of Appeal upholding the primary judge's decision regarding the admissibility of the evidence and the solicitor's right to bring protective proceedings.
Orders
Orders of the court
See par.69 of judgment
Background
Background to the litigation
Full text does not contain this section.
Evidence
Evidence Before The Court
Full text does not contain this section.
Decision
Reasons for decision
Full text does not contain this section.
Ratio Decidendi
Legal Principle Established
Full text does not contain this section.