Lowe v Lang [2000] NSWSC 309

Lowe v Lang [2000] NSWSC 309

Section 34 of the Evidence Act 1995 applied to documents used by Mr Stuart out of court to try to revive his memory before swearing affidavits read in evidence. Common law privilege rules did not control the s 34 process, but the statutory definition of document permitted production of only the parts of a document used or relevant to the attempt to revive memory. Accordingly, the edited parts of the advice and the other documents the witness said he used to revive memory were to be produced, while the remainder was not.

Jurisdiction
Australia
Judgment Date
30 March 2000
Procedural Posture
Application for Directions for Production of Documents Under S 34(1) of the Evidence Act 1995 / During Trial, in the Course of a Witness's Evidence and Cross Examination
Outcome
Application for production of documents in part granted, in part refused.
Legal Topics
['refreshing Memory' 'production of Documents Used to Revive Memory Out of Court' 'affidavit Evidence in Chief' 'privileged Documents' 'dissection of Documents Under the Evidence Act 1995']
['evidence' 'civil Procedure' 'legal Professional Privilege'] ['refreshing Memory' 'production of Documents Used to Revive Memory Out of Court' 'affidavit Evidence in Chief' 'privileged Documents' 'dissection of Documents Under the Evidence Act 1995']

Case Brief

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Procedural Posture

Application for Directions for Production of Documents Under S 34(1) of the Evidence Act 1995 / During Trial, in the Course of a Witness's Evidence and Cross Examination

Legal Issues

  1. 1 ['Whether s 34 of the Evidence Act 1995 applies to documents used by a witness to revive memory before swearing affidavits later read in evidence.' 'Whether common law rules of privilege govern production under s 34 of documents used to revive memory.' 'Whether, where only part of a privileged document was used to revive memory, the whole document or only the relevant part should be produced.' 'Whether drafts of affidavits and handwritten or typewritten suggestions used by the witness to attempt to revive memory should be included in the production direction.']

Ratio Decidendi

Section 34 of the Evidence Act 1995 applied to documents used by Mr Stuart out of court to try to revive his memory before swearing affidavits read in evidence. Common law privilege rules did not control the s 34 process, but the statutory definition of document permitted production of only the parts of a document used or relevant to the attempt to revive memory. Accordingly, the edited parts of the advice and the other documents the witness said he used to revive memory were to be produced, while the remainder was not.

Court Disposition

Application for production of documents in part granted, in part refused.

Orders

  • ['The original advice and post-affidavit correspondence were to be placed in a separate sealed envelope within the MFI 10 envelope.' 'A copy of the portions of the memorandum of advice to which access was allowed was to be placed among the documents the witness said he used to attempt to revive memory.' 'Those...