R v Dunwoody

[2004] QCA 413

Queensland Court of Appeal

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Interrogate

Catchwords

1. Evidence
2. › Facts excluded from proof
3. › Privilege
4. › Legal professional privilege
5. › Whether privilege remains with bankrupt despite bankruptcy
6. › Whether privilege passes to trustee in bankruptcy
7. › Bankruptcy Act 1966 (Cth), s 77A
1. Evidence
2. › Facts excluded from proof
3. › Privilege
4. › Legal professional privilege
5. › Waiver of privilege
6. › Conduct inconsistent with maintenance of confidentiality
7. › Documents handed to trustee in bankruptcy
8. › Whether knowing or intentional waiver required
1. Evidence
2. › Facts excluded from proof
3. › Privilege
4. › Legal professional privilege
5. › Waiver of privilege
6. › Solicitors providing files to trustee without client's instructions
7. › Whether ostensible authority of solicitors effects waiver
8. › Whether subsequent failure to claim privilege constitutes waiver
1. Evidence
2. › Facts excluded from proof
3. › Privilege
4. › Legal professional privilege
5. › Crime or fraud exception
6. › Whether communications made for purpose of frustrating processes of law
7. › Whether intent to defeat contingent creditors constitutes improper purpose
8. › Attorney-General (NT) v Kearney (1985) 158 CLR 500

Quick Take

Legal professional privilege remains with the bankrupt and does not pass to the trustee in bankruptcy, but may be waived by conduct inconsistent with maintaining confidentiality, including by solicitors acting with ostensible authority. Communications seeking legal advice to restructure assets for the purpose of defeating creditors' claims may lose privilege under the crime/fraud exception, even where the creditors' claims are contingent or prospective. Cross-examination of an accused on the content of a document not tendered in evidence does not amount to splitting the Crown case where the document is not tendered and the accused denies the propositions put.