AUSTRALIA Law and Practice Contributed by: Joachim Delaney and Ranjani Sundar, HFW
• 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 purpose of conducting legal proceedings. At common law and under Sections 118 and 119 of the Uniform Evidence Acts, such communica - tions are protected from compulsory production in the context of court or similar proceedings. However, as set out in Section 125 of the Evi - dence 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] communication 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 furtherance of the commission of a fraud or an offence or the com - mission 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.
to any statutory prohibitions, 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 considered to be so where his conduct is wanton, as where it discloses fraud, malice, vio- lence, 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 unemployment by inducing her to leave an established job. Such conduct was considered to merit punishment by the court by way of exemplary damages. This principle 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 Cor - poration Pty Ltd & Anor (1988) 80 ALR 251).
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 discloses 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
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