The applicant sought to rely on evidence of his wife’s witness statement setting out her conversation with a witness for the respondent trustees regarding the pressure that he felt during the taking of his witness proof. The applicant also sought permission to ask interrogatories concerning the witness proofing process. The wife’s statement contained evidence of statements made to her during the course of a telephone conversation with the witness in January 2021. The witness’s evidence was said to be of relevance to the disputed mental state of one of the key figures in the proceedings when he signed a power of attorney.
As the witness’s account of what happened during the proofing process was privileged, the applicant claimed that what had happened established a prima facie case of iniquitous conduct in the proofing process thereby enabling the applicant to pierce the veil of privilege. Kawaley AJ found that the evidence did not establish a prima facie case of iniquitous conduct. The applicant appealed on the basis that the Judge erred in concluding there was no iniquitous conduct, that he applied the incorrect test, was wrong to preclude the further investigation into the procedure for taking evidence and was wrong to preclude the applicant from relying on the wife’s witness statement.
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Piercing the Veil of Privilege: The Iniquity Exception