Undercar Australia Pty Ltd v Monbray Pty Ltd
[1999] QDC 298
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- Undercar Australia Pty Ltd v Monbray Pty Ltd[1999] QDC 298
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Undercar Australia Pty Ltd v Monbray Pty Ltd[1999] QDC 298
Undercar Australia Pty Ltd v Monbray Pty Ltd[1999] QDC 298
DISTRICT COURT | No 2163 of 1995 |
CIVIL JURISDICTION
SENIOR JUDGE SKOIEN
UNDERCAR AUSTRALIA PTY LTD (ACN 055 613 066) and IAN KENNETH SIMPSON | Appellants |
and
MONBRAY PTY LTD (ACN 010 257 879) and KENNETH CHARLES POINTON | Respondents |
BRISBANE
DATE 16/11/99
ORDER
HIS HONOUR: The remaining substantial relief sought in the application is that the plaintiff discover the statement of Kenneth Charles Pointon referred to in a report of an expert accountant, Mr Calabro.
Pointon is one of the plaintiffs and the material establishes that the statement referred to is the proof of evidence which he prepared for the purposes of trial.
The matter has been set down for hearing 13 days hence and I feel obliged to deal extempore with this question which is indeed a difficult one.
The cause of action is under the Trade Practices Act for damages for misleading and deceptive conduct. The affidavit in support of the defendant's application sets out in some detail the chronology and by reference to the actual report of Mr Calabro which is before me, attached to the affidavit, it is possible to see that the accountant relied on many occasions on statements contained in Mr Pointon's proof of evidence. Sometimes the references are to precise statements, sometimes to the effect. All in all, it must be said that the opinion of the expert relies very heavily on the contents of the proof of evidence.
It goes without saying of course that a proof of evidence is, prima facie, the subject of legal professional privilege. There is no suggestion that Mr Pointon ever expressly waived that privilege. The question is whether he has done so even though unintentional. That, it is argued, is the effect of the accountant having expressly relied on portions of the proof of evidence.
The applicant relies on two authorities, the Attorney General for the Northern Territory v. Maurice & Ors 1986 161 CLR 475, and an unreported decision of the Court of Appeal, Bayliss v. Cassidy & Ors, appeal number 1225 of 1998.
In the latter case, the judgment of Davies JA at pages 6-7, adopts a statement in another High Court case (Goldberg v. Ng 1995, 185 CLR 83) from the joint judgment of Dean, Dawson and Gaudron, Justices, as follows:
“The circumstances in which a waiver of legal professional privilege will be imputed by operation of law, cannot be defined in advance. The most that can be done is to identify a number of general propositions. Necessarily, the basis of such an imputed waiver will be some act or omission of the persons entitled to the benefit of the privilege. Ordinarily, that act or omission will involve or relate to a limited actual or purported disclosure of the contents of the privileged material. When some such act or omission of the person entitled to the benefit of the privilege gives rise to a question of imputed waiver, the governing consideration is whether fairness requires that his privilege shall cease whether he intended that result or not.”
Mr Eustice for the respondent/plaintiff, referred to and relied on another decision of the Court of Appeal, Interchase Corporation Limited in Liquidation v. Grosvenor Hill Queensland Pty Ltd number 1, 1999 1 Queensland Reports 141.
I immediately note that that case dealt only in passing with the principle contained in cases such as Goldberg, Maurice & Bayliss and does not as I read it attempt to displace the fairness test to which I have referred.
Mr Eustice relied heavily on the fact that at the time when the accountant's opinion was sought, the applicable rules of the District Court would not have required disclosure of his report at all.
In those circumstances, he submits that it would be unfair to require production not only of the report but also of the core documents including the plaintiff's proof of evidence on which the accountant relied.
I accept that that raises a question of fairness which I must take into account but I consider that the primary consideration raised there relates more to the question whether or not any waiver of privilege was intended and I immediately say that I proceed on the basis, of course, that it was not intended.
Ultimately, the question is this, when an expert relies upon the contents of a document given to him and expressly states that he has done so and at least impliedly in this case, if not expressly, makes it clear that he has regarded the contents of that document as important if not essential to his conclusions, then should not the other party be given the opportunity to test the reliability of the information upon which the expert has relied.
That necessarily must involve the ability of the opposing party to look at the balance of the document to see whether or not the relied upon material is qualified or perhaps even contradicted by other material contained in the statement whether the core material are here the proof of evidence.
Accepting the difficulty of the question and the reluctance of course to order the disclosure of clearly privileged material, I nevertheless come to the conclusion that fairness does require the disclosure to the defendants of Mr Pointon's proof of evidence, that is the statement referred to in the application.
I therefore order that the plaintiffs discover the statement of Kenneth Charles Pointon referred to in paragraph 5.1 of the report of Norbert Calabro dated 25 October 1999.
...
HIS HONOUR: I further order that the plaintiffs pay the defendant's costs of and incidental to this application to be taxed if not agreed.