Trevorrow v SA (No 2)

[2005] SASC 369

Supreme Court of South Australia

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Interrogate

Catchwords

1. Evidence
2. › Privilege
3. › Legal professional privilege
4. › Exclusions from privilege
5. › Welfare of child
6. › Whether privilege excluded where documents relate to treatment of child ward of the State
7. › Fiduciary relationship of guardian and ward
8. › Whether fiduciary duty to disclose precludes assertion of privilege against ward
1. Evidence
2. › Privilege
3. › Legal professional privilege
4. › Exclusions from privilege
5. › Deliberate abuse of statutory power
6. › Whether communications made in context of deliberate abuse of statutory power are excluded from privilege
7. › Aborigines Act 1934-1939 (SA), ss 6, 7, 10, 38, 39, 40
1. Evidence
2. › Privilege
3. › Legal professional privilege
4. › Waiver
5. › Implied waiver
6. › Inconsistent conduct
7. › Whether granting access to privileged documents without qualification constitutes waiver
8. › Whether pleading contents of privileged documents into issue constitutes waiver
9. › Whether loss of confidentiality through publication constitutes waiver
1. Equity
2. › Fiduciary obligations
3. › Guardian and ward
4. › Duty to disclose
5. › Whether fiduciary duty of guardian includes obligation to disclose breach of duty to ward
6. › Aborigines Act 1934-1939 (SA), ss 6, 7, 10

Quick Take

Legal professional privilege is excluded from applying where a former child ward of the State seeks access to documents relating to the State's exercise of guardianship powers over that child, particularly where the documents relate to legal advice about the scope of the State's power to remove the child from their family. The fiduciary relationship of guardian and ward imposes a duty of disclosure that precludes the State from asserting privilege against the ward. Waiver of privilege may also be established where the State grants access to privileged documents without qualification and fails to maintain confidentiality.