RELIGIOUS CONFESSIONAL PRIVILEGE:

s127
(1)  A person who is or was a member of the clergy of any church or religious denomination is entitled to refuse to divulge that a religious confession was made, or the contents of a religious confession made, to the person when a member of the clergy.
(2) Subsection (1) does not apply if the communication involved in the religious confession was made for a criminal purpose.   
…   
(4) In this section:
      religious confession means a confession made by a person to a member of the clergy in the member's professional capacity according to the ritual of the church or religious denomination concerned.
•    This was introduced by the Evidence Act, and no common law protection has been given to religious confessions - it is untested by case law.
•    Statute, not common law.
•    The wishes of the confessor are irrelevant - disclosure is the prerogative of the priest (there is in fact no express provision for loss of privilege)

5.3 Settlement Negotiations Privilege
What is it?
•    The contents of a statement made in an attempt to settle a dispute cannot be put into evidence
•    It is a joint privilege of both the parties

Purpose
“To enable parties engaged in an attempt to compromise litigation to communicate with one another freely and without the embarrassment which the liability of their communications to be put in evidence subsequently might impose on them. The law relieves them of this embarrassment so that their negotiations to avoid litigation or to settle it may go unhampered.” (Field v Commissioner for Railways)
COMMON LAW (pre-trial):
•    “Without prejudice” the rule applies to exclude all negotiations genuinely aimed at settlement whether oral or in writing, from being adduced in evidence.
•    To establish the negotiation privilege attaches, there needs to be: (1.) admission (2.) a genuine attempt to settle                                                                                                      
•    Court will go “voir dire” in order to decide whether a communication is an admission
Rush & Tompkins Ltd v Greater London Council                 
•    Facts: R&T and GLC entered into a building contract - R&T subcontracted to Carey, who sued R&T for expense due to delay in completion - R&T sued GLC for reimbursement of Carey’s claim.
•    Correspondence marked “without prejudice” between R&T and GLC - GLC gave R&T 1.2 million to meet Carey’s claim
•    Held: Correspondence was privileged
•    Negotiation privilege was not dependant on use of the phrase “without prejudice” - If it is clear from surrounding circumstances that the 2 factors mentioned above are present, the evidence won’t be admissible.
•    “Without prejudice” communications are not only protected as between parties to communication, but they are also protected from production to other parties in the same litigation.
•     The Court also extended negotiation privilege to discovery.
Field v Commissioner of Railways
•    Facts: Field was injured on a train - railways asked Field to attend for a medical examination so they could ascertain an appropriate figure to offer for settlement.
•    Went to see Dr and he told the Dr that the train was already moving when he tried to get off it (contrary to his statement that train moved while he was getting off.)
•    Negotiations broke down because this new evidence emerged which could be used against him.
•    Issue:  Could what he said to the Dr be used against him in evidence?
•    Held:  Statement was not protected by negotiation privilege
•    Negotiation privilege is directed at express or implied admissions, not objective facts that may be ascertained during the course of negotiations (as these can be proven using direct evidence.)
•    In this case, the purpose of the medical exam in negotiations was to assess the level of injury - Field’s statement to the doctor was outside that scope - it was not reasonably incidental to negotiations, and therefore not protected by privilege.

State Rail Authority v Smith (1998)
•    Mr Smith sued State Rail in a workers’ comp proceedings.
•    Mr Smith also sued his previous solicitors for professional negligence - they commenced proceedings against the wrong defendant and by the time they fixed it, the statute of limitations had passed.
•    Smith still had a right to sue the SRA for his weekly payments (the statute of limitations only applied re a damages claim for pain and suffering).
•    Smith had settled with his solicitors but in the case between Smith and SRA, SRA wanted to quiz Smith about the terms of settlement with his solicitor.
•    S131 is concerned with the communications relating to settlement. It does not apply to the settlement document itself.
•    Where the parties contractually bind themselves not to disclose terms of a settlement, this prohibition does not apply when the disclosure is required by coercion of the law.

THE EVIDENCE ACT (applies at trial):
•    The EA is generally stricter than the Common Law rule - the exceptions under s131(2) are narrower than the Common Law exceptions.
•    Documents which are privileged under EA are also privileged in pre-trial procedures because of Part 23 r 1 of the SCR - Part 24 r 6 provides that communications don’t need to be disclosed in interrogatories.
s131 – Exclusion of evidence of settlement negotiations
(1) Evidence is not to be adduced of:
(a) a communication that is made between persons in dispute, or between one or more persons in dispute and a third party, in connection with an attempt to negotiate a settlement of the dispute; or
(b) a document (whether delivered or not) that has been prepared in connection with an attempt to negotiate a settlement of a dispute.

(2) Subsection (1) does not apply if:
(a) the persons in dispute consent to the evidence being adduced; or
(b) the substance of the evidence has been disclosed with the express or implied consent of all the persons in the dispute; or (c) the substance of the evidence has been partly disclosed with the express or implied consent of the persons in dispute, and full disclosure is reasonably necessary to enable a proper understanding of the evidence that has already been adduced; or (d) the communication or document included a statement to the effect that it was not to be treated as confidential; or (e) the evidence tends to contradict or to qualify evidence that has already been admitted about the course of an attempt to settle the dispute; or (f) purpose of the proceeding is to enforce an agreement to settle the dispute or in which the making of such an agreement is in issue; or (g) evidence that has been already adduced is likely to mislead the court unless evidence of the communication or document is adduced to contradict or to qualify that evidence; or (h) the communication or document is relevant to determining liability for costs; or (i) making the communication, or preparing the document, affects a right of a person; or (j) the communication was made, or the document was prepared, in furtherance of the commission of a fraud/ offence/act that renders a person liable to a civil penalty; (k) one of the persons in dispute, or an employee or agent of such a person, knew or ought reasonably to have known that the communication was made, or the document was prepared, in furtherance of a deliberate abuse of a power.

(5) In this section:
(a) a reference to a dispute is a reference to a dispute of a kind in respect of which relief may be given in an Australian or overseas proceeding; and
(b) an attempt to negotiate the settlement of a dispute does not include a an attempt to negotiate the settlement of a criminal proceeding or an anticipated criminal proceeding
(c) reference to a communication made by a person in dispute includes a reference to a communication made by an employee or agent of such a person
(d) reference to the consent of a person in dispute includes a reference to the consent of an employee or agent of such a person so authorised
(e) a reference to commission of an act includes a reference to a failure to act.

(6) In this section power means a power conferred by or under an Australian law.

5.5 Privilege Against Self-incrimination
•    This is not an absolute privilege - a Court can compel an answer
•    It covers civil and criminal proceedings
The rule: No one is bound to answer any question or produce any document if the answer or the document would have a tendency to expose that person to the imposition of a civil penalty or to conviction of a crime.
•    Counsel can object to a question put to a client on the grounds that it may incriminate the witness/client - they must actually object for the privilege to apply; if the question is answered the opportunity to claim the privilege is lost.
•    No adverse inferences may be drawn if the privilege is claimed.
s128                                                                                                                                                      (1) This section applies if a witness objects to giving particular evidence on the ground that the evidence may tend to prove that the witness (a) has committed a criminal offence or (b) is liable to a civil penalty.
(2) Subject to subsection (5), if the court finds that there are reasonable grounds for the objection, the court should inform the witness of their options (ie they need not give evidence, and if they do they will get a certificate and be informed of its effect)
(3) & (4) Outline procedures regarding certificates
(5) If the court is satisfied that: (a) the evidence concerned may tend to prove that the witness has committed an offence against or arising under, or is liable to a civil penalty under, an Australian law; and (b) the evidence does not tend to prove that the witness has committed an offence against or arising under, or is liable to a civil penalty under, a law of a foreign country; and (c) the interests of justice require that the witness give the evidence; the court may require the witness to give the evidence.
(6) If the court so requires, it is to give the witness a certificate
(7) With the effect of giving immunity to the person for Australian proceedings
(8) In a criminal proceeding, this section does not apply in relation to the giving of evidence by a defendant, being evidence that the defendant: (a) did an act, the doing of which is a fact in issue; or (b) had a state of mind, the existence of which is a fact in issue.
- this only applies to evidence at trial, ie no application during police questioning

•    Remember, documents which are privileged under EA are also privileged in pre-trial procedures because of Part 23 r 1 of the SCR - Part 24 r 6 provides that communications don’t need to be disclosed in interrogatories.
EPA v Caltex Refining Co  (now incorporated into EA, s187)
•    Facts: EPA brought an action against Caltex for breach of the conditions of its license allowing it to dump certain wastes into the ocean - served a s29 notice under the Clean Waters Act for the production of documents - Caltex claimed privilege against self-incrimination
•    Held: Caltex could not claim the privilege
•    Privilege does not extend to corporations because the same policy reasons don’t apply as for the privilege in relation to individuals, for whom it is a human right - this finding is now incorporated into s 187 of the EA which states that there is no privilege against self-incrimination for bodies corporate