AUSTRALIA Law and Practice Contributed by: Joachim Delaney and Ranjani Sundar, HFW
that a defendant cannot give evidence at their own trial unless they elect to during their own defence. 6.2 Undermining the Privilege Over Communications Exempt From Discovery A party may withhold documents that are subject to legal professional privilege. This privilege arises in relation to: • communications between a lawyer and their client for the dominant purpose of providing or receiving legal advice; and • a lawyer, their client and/or a third party for the pur - pose of conducting legal proceedings. At common law and under Sections 118 and 119 of the Uniform Evidence Acts, such communications are protected from compulsory production in the context of court or similar proceedings. However, as set out in Section 125 of the Evidence Act 1995 (Cth), privilege does not exist to assist a party in committing fraud. Section 125 (1)(a) provides that privilege does not apply to: “...[a] communica - tion made or the contents of a document prepared by a client or lawyer (or both), or a party who is not represented in the proceeding by a lawyer, in further - ance of the commission of a fraud or an offence or the commission of an act that renders a person liable to a civil penalty.” Thus, if there is commission of fraud or an abuse of power, privilege of such documents may no longer be relied on. 7. Special Rules and Laws 7.1 Rules for Claiming Punitive or Exemplary Damages A court may award exemplary damages in response to a defendant’s tortious conduct, such as where it dis - closes a certain degree of fraud or malice ( Uren v John Fairfax & Sons Pty Ltd (1966) 117 CLR 118). It is within the court’s discretion to grant exemplary damages, and that discretion is usually exercised depending on the specific circumstances of each case ( Gray v Motor Accidents Commission (1998) 196 CLR 1; (1998) 158
ALR 485, 491 [26]). Subject to any statutory prohi - bitions, such as Section 21 of the Civil Liability Act 2002 (NSW) which prohibits an award of exemplary, punitive and aggravated damages in personal injury claims founded in negligence, an award of exemplary damages may be justified where “the conduct of the defendant merits punishment, which is only consid - ered to be so where his conduct is wanton, as where it discloses fraud, malice, violence, cruelty, insolence or the like, or, as it is sometimes put, where he acts in contumelious disregard of the plaintiff’s rights” (John D Mayne and Harvey McGregor, Mayne & McGregor on Damages (Sweet & Maxwell, 12th edition, 1961) 196). This also includes deliberate, intentional, or reckless conduct of the defendant ( Whitfeld v De Lauret & Co Ltd (1920) 29 CLR 71, 77 (Knox CJ); XL Petroleum (NSW) Pty Ltd v Caltex Oil (Australia) Pty Ltd (1985) 155 CLR 448; Lamb v Cotogno (1987) 164 CLR 1; Gray v Motor Accident Commission (1998) 196 CLR 1; (1998) 158 ALR 485). For instance, in the decision of Musca & Ors v Astle Corporation Pty Ltd & Anor (1988) 80 ALR 251, exemplary damages were awarded in a cause of action for deceit where the defendant’s deceitful conduct was found to have exposed the plaintiff and her child to considerable risk, including unemploy - ment by inducing her to leave an established job. Such conduct was considered to merit punishment by the court by way of exemplary damages. This prin - ciple was recently referred to in Care A2 Plus Pty Ltd v Pichardo [2024] NSWCA 35 [127]–[130]. Additionally, the quantum of exemplary damages may be reduced, where a compensatory award exceeds the benefit obtained by the defendant by reason of their tort ( Musca & Ors v Astle Corporation Pty Ltd & Anor (1988) 80 ALR 251). 7.2 Laws to Protect “Banking Secrecy” Common Law Under the common law, a banker’s duty to keep con - fidential certain affairs of their customers is depend - ent on the terms of the engagement as between the banker and its customer. This duty of confidentiality is usually an implied term of the contract between a banker and customer, although it may be express, and extends beyond the mere state of affairs of custom -
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