(1) Where, on the application of a person who is an interested person in relation to a confidential communication or a confidential document, the court finds that, if evidence of the communication or the document were to be adduced in the proceedings, the likelihood of—
(a) significant harm to an interested person;
(b) significant harm to the relationship in the course of which the confidential communication was made or the confidential document prepared,
together with the extent of that harm, outweigh the desirability of admitting the evidence, the court may direct that the evidence not be adduced.
(2) For the purposes of subsection (1), the court shall take into account, inter alia, the following matters—
(a) the importance of the evidence in the proceeding;
(b) if the proceeding is a criminal proceeding, whether the evidence is adduced by the defendant or by the prosecutor;
(c) the extent, if any, to which the contents of the communication or document have been disclosed;
(d) whether an interested person has consented to the evidence being adduced;
(e) the nature of the relevant offence, cause of action or defence and the nature of the subject-matter of the proceeding; and
(f) any means available to limit publication of the evidence.
(3) Subsection (1) does not apply to a communication or a document—
(a) the making of which affects a right of a person;
(b) that was made or prepared in furtherance of the commission of
(i) an offence,
(ii) an act that renders a person liable to a civil penalty; or
(c) that an interested person knew or ought reasonably to have known was made or prepared in furtherance of a deliberate abuse of a power conferred by or under an enactment.
(4) For the purposes of subsection (3), where—
(a) the commission of the offence or act, or the abuse of power, is a fact in issue; and
(b) there are reasonable grounds for finding that—
(i) the offence or act, or the abuse of power, was committed, and
(ii) communication was made or document prepared in furtherance of the commission of the offence or act or for that purpose;
the court may find that the communication was so made or the record so prepared, respectively.
(5) In this section, “interested person”, in relation to a confidential communication or a confidential document, means a person by whom, to whom, about whom or on whose behalf the communication or document was prepared.