Gilbert + tobin - Gilbert and Tobin

19.8 Privilege
The rules of evidence allow privilege to be claimed on certain
types of documentation. The law varies between jurisdictions.
Privileged documents fall within the following categories:
+ + legal professional privilege – legal professional privilege gives a
client the right to refrain from producing documents prepared
for the dominant purpose of a lawyer, or one or more lawyers,
providing legal advice to the client. The claim is for the client to
make and may be waived. Legal professional privilege does not
extend to cases of crime or fraud;
+ + privilege against self-incrimination – a witness is entitled to
object to answering a question on the grounds that answering
would have a tendency to show that they have committed an
offence arising under an Australian or foreign law, or are liable
to a civil penalty. This form of privilege does not extend to
corporations; and
+ + public interest immunity – if the public interest in preserving
secrecy or confidentiality over a document or information that
relates to matters of state outweighs the public interest in
admitting it into evidence or disposing fairly of the proceedings,
a court may of its own initiative, or on application by a party,
direct that document to be privileged.
19.9 Alternative dispute resolution
Dispute resolution processes that are alternative to traditional
court proceedings are often referred to as “alternative dispute
resolution” (ADR). Mediation and arbitration are common forms.
ADR processes often involve a third party who either assists the
parties in dispute or conflict to reach a decision by agreement or
makes a decision which may be binding or non-binding on the
parties.
Other forms of ADR include expert determinations, referees and
adjudication. Expert determinations are carried out by persons
with specialised knowledge who actively gather information
relevant to the dispute, rather than hear arguments from the
parties. In the absence of factors such as fraud or collusion, expert
determinations are binding in Australia if accompanied by an
enabling contact. All Supreme Courts and most tribunals have the
power to defer such issues to a referee. Referrals involve complex
technical issues such as building cases which involve determination
by a technical expert. In the building and construction industry,
adjudication is used to make timely and cost-effective interim
determinations as to a party’s rights to payment under security of
payment legislation.
19.10 Foreign judgments
The Foreign Judgments Act 1991 (Cth) (Foreign Judgments
Act) establishes a statutory scheme under which judgments of
specified foreign courts are recognised and enforced in Australia.
It includes enforceable monetary judgments which are final and
conclusive as between the parties. Notably, the Schedule excludes
any courts of the United States.
To enforce a judgment, the judgment creditor must apply to the
appropriate Australian court for registration within six years of the
date of the judgment. For the purpose of enforcement, a
registered foreign judgment has the same force and effect as a
judgment given in the court in which it is registered, including the
accumulation of interest on the judgment debt. A judgment debtor
can apply to have the judgment set aside on a number of specified
grounds. Under the Foreign Judgments Act, judgments which are
registrable but not registered may still operate as an estoppel.
Each of the Australian states and territories has enacted a
Commercial Arbitration Act for the conduct of domestic
arbitration. The Commonwealth has enacted the International
Arbitration Act 1974 (Cth). Under each Act there is provision for
the courts to enforce arbitral awards as if they were judgments of
the court.
Mediations are extremely common in Australia. Most statutes
establishing the courts, many court rules and some court practice
notes contain procedural rules applicable to court-connected
mediation where available.
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