UCPR amendment re objection to production on a ground of privilege

The Uniform Civil Procedure (Amendment No 91) Rule 2019 (NSW) (the Amendment) was approved by the Uniform Rules Committee on 15 April 2019, and took effect from 18 April 2019. The Amendment deals with document production in the event of an objection to production on a ground of privilege.

The Amendment inserts the following after Rule 1.9 (4):

(4A) If a document is produced, and a person objects to the production of the document on the ground that the document is privileged document, access to the document must not be granted unless and until the objection is overruled.

(4B) The production of a document to the court under a claim for privilege does not constitute a waiver of privilege.

(4C) Subrules (4A) and (4B) extend to documents produced before the commencement of those subrules.

The Amendment was introduced in order to clarify procedure following Hancock v Rinehart (Privilege) [2016] NSWSC 12.

In those proceedings (the interlocutory decision which was later subject of appeal), the defendant pressed the Court to inspect the disputed documents to determine the claim for privilege. This was in the absence of evidence from the defendant herself as to the facts on which the claim for privilege was founded.

In deciding the matter, his Honour Justine Brereton noted:

  • any objection to production founded on privilege needs to be taken at the first stage, before the documents are produced to the Court, furthermore, because the privilege is one against production, it is inconsistent with maintaining the claim to produce the documents to the Court in support of the claim
  • the preferable explanation of the Court’s power to inspect privileged documents is that it exists not to facilitate proof by a claimant of the facts required to sustain the claim, but to provide a means of enabling the claim to be scrutinised
  • a party is not entitled to insist on the Court inspecting the documents, it is a matter for the Court, where there is a good reason
  • on a claim for privilege, the purpose for which the document or communication was made is the key issue and that will involve ascertaining the purpose from a person with direct knowledge of that purpose
  • for the Court to look at the documents in support of a claim for privilege would be grossly unfair to the other party, as the other party seeking access is deprived of any opportunity to test the asserted purpose of the documents
  • presenting the Court with a bundle of documents and asking the Court to rule on a claim of privilege is not merely unsatisfactory but impermissible in principle, to voluntarily proffer the documents for inspection is inconsistent with maintaining the claim
  • although UCPR r1.9(5) provides that for the purposes of ruling on an objection to the production of a document, the person objecting may be compelled to produce the document, it does not deal with voluntary production of the document.

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