10.1A privilege recognises that the public interest in protecting certain types of confidences can be more important than ensuring a court has all relevant evidence at its disposal in order to decide the matters before it. The law relating to privilege reflects the delicate balancing act between these competing interests. The nature of the privilege and the relationship or interests it protects affects the manner in which the balance is struck.
10.2This balancing requires consideration as to the form of privilege that is appropriate. A privilege can be absolute (so there is a clear right not to testify about the protected information) or qualified (where there is a general understanding that the protected information is protected but a court has a discretion to require it be disclosed in a particular case). Alternatively, instead of privilege attaching to particular information or relationships, a court can be provided with a discretionary power to allow information not to be disclosed in the circumstances of a particular case.
10.3The privilege and confidentiality provisions are contained in subpart 7 of Part 2 of the Act. This chapter considers issues raised regarding legal advice privilege, the privilege for settlement negotiations and mediation, and medical privilege and confidential information. The chapter concludes with consideration of other general privilege matters: interpretation, waiver and joint and successive interests.