Oliver v Lake Side Resort Development Pty Ltd

The witness, who is the fourth defendant, has, in the course of cross-examination, given an answer referring to and disclosing a communication clearly comprehended by s.131(1)(a) of the Evidence Act 1995. I should make it clear at once that the question to which he was responding was not in any way framed so as to seek to elicit information protected by s.131(1).

Now that the answer has been given, however, it is submitted by the plaintiffs that the preclusion under s.131 in relation to the adducing of evidence of the particular communication has been removed by force of a consent within s.131(2)(a), (b) or (c). Counsel for the plaintiffs says, in essence, that the situation is one in which the witness, by giving the answer he gave, offered, as it were, to waive the privilege, which offer the plaintiffs now accept.

I do not accept that that analysis holds good. This is not a unilateral privilege of the kind, for example, that one finds in the provisions about lawyer/client privilege. The paragraphs of s.131(2) concerning consent make it clear that the "persons in dispute" alone are capable of removing the s.131(1) embargo; and that all of those persons must consent. Furthermore, consent must be in existence when the otherwise precluded evidence is adduced.

When the answer in question was given there had been no consent of anyone other than, perhaps, the fourth defendant from whose mouth the answer came. The consent cannot be retrospectively constructed by regarding the answer itself as being an offer to waive the privilege which offer the other parties then become able to accept.

Added to this and insofar as s.131(2)(c) is relied upon, I am not persuaded that the second part of s.131(2)(c) starting with the words, "and full disclosure" is satisfied here, in that the answer that was given did not, on my understanding of what went before, in any way promote a proper understanding of any other evidence that had already been adduced.

The result, therefore, must be that the answer is inadmissible and the answer will be removed from the record of the proceedings.

That, I think, also deals with the intended line of further questioning that counsel for the plaintiffs outlined while the witness was out of the courtroom.