PROFESSOR SEEKS UNREDACTED COPY OF LEGAL ASSESSMENT USED BY GOVERNMENT IN MAKING THE “STAY AT HOME” DIRECTIONS
Loielo v Giles [2020] VSC 619 (24 September 2020)
This case involves the plaintiff requesting for an unredacted copy of the legal advice sought by the defendant which became the basis of the Stay at Home Directions
Facts:
Defendant, Associate Professor Giles (in her capacity as Deputy Public Health Commander as authorised to exercise emergency powers by the Chief Health Officer under section 199(2)(a) of the Public Health and Wellbeing Act 2008), made a “Stay at Home” Directions. The Directions contain the 9 pm to 5 am curfew, which binds people who reside in the ‘greater Melbourne’ area.
The dispute is about a paragraph in the plaintiff’s notice to produce seeking production of Exhibit MG-5. The only objection raised by the defendant to the production of Exhibit MG-5 was that is subject to legal privilege. Exhibit MG-5 is the assessment by the Legal Services Branch of the Stay At Home Direction, which is partly redacted.
Issue: Is the plaintiff entitled to the unredacted copy of the exhibit which contains the assessment by the Legal Services Branch regarding the Stay at Home Direction?
Law:
- Section 122 of the Evidence Act 2008- Loss of client legal privilege- Consent and related matters
(2) this Division does not prevent the adducing of evidence if the client or party concerned has acted in a way that is inconsistent with the client or party objecting to the adducing of the evidence because it would result in a disclosure of a kind referred to in section 118, 119 or 120.
(3) Without limiting subsection (2), a client or party is taken to have so acted if—
(a) the client or party knowingly and voluntarily disclosed the substance of the evidence to another person; or
(b) the substance of the evidence has been disclosed with the express or implied consent of the client or party.
Analysis:
In stating that the Professor Giles considered assessments of the Legal Services Branch and stating the substance of the assessments, she has acted in a way that is inconsistent with objecting to the adducing of the evidence of those legal assessments or advices within the meaning of s122(2) of the Evidence Act 2008.
Associate Professor Giles’ affidavit puts in issue her assessment of the relevant Charter rights and their impact on the making of the Directions. The manner in which she took into account Charter rights and the effect of the curfew on those rights is directly in issue. The legal advices that Associate Professor Giles considered appear to have influenced her ‘state of mind’ about the making of the Directions, as that term is used in waiver of privilege cases.
Conclusion: The plaintiff is entitled to an unredacted copy of exhibit MG-5
