Prentice v Graham[2001] QDC 247

CIVIL JURISDICTION

JUDGE O'SULLIVAN

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BRISBANE

DATE 03/09/2001

JUDGMENT

HER HONOUR: I publish my reasons.

I will delete paragraph 13 and ask you to do the same otherwise the published reasons will remain and the formal order will be that I dismiss the application.

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CITATION: Prentice & Anor v. Graham & Ors [2001] QDC 247

PARTIES:

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FILE NO/S: D3059 of 2000

DIVISION: Civil Jurisdiction

PROCEEDING: Application to Court

ORIGINATING COURT: District Court at Brisbane

DELIVERED ON: 3 September 2001

DELIVERED AT: Brisbane

HEARING DATE: 20 August 2001

JUDGE: Judge O'Sullivan

ORDER: 1. Application dismissed

CATCHWORDS:

PRACTICE - Disclosure - legal professional privilege.

Westsand Pty Ltd v Johnson (1999) QSC 337;

Robson v Reb Engineering Pty Ltd (1997) 2 Qd R 102, 104;

Cardinia Pty Ltd v Kennedy and Anor (1999) QSC 102

1. [1]
   The Notice of Non-Party Disclosure sets out, at page 2, the allegations in the pleadings which the plaintiffs say are relevant to the documents sought in categories 8 and 9 on page 3 of the Notice. Counsel for the applicants broadened these in his written Submissions - refer paras 15 and 17. Counsel for the respondent objects to the applicants referring to matters not set out in the Notice of Non-Party disclosure.

1. [2]
   Both Counsel referred to Westsand Pty Ltd v Johnson (1999) QSC 337. At paragraph 11, Justice Wilson states the principle in these terms: “... a party in the position in which the present applicant finds himself ought not ordinarily to be allowed to seek to uphold the notice by assertion of direct relevance to other allegations in the pleadings.” However, she then refers to unusual circumstances, and the fact that the solicitors were fully acquainted with the pleadings, and the duty of the court to avoid undue delay, expense and technicality pursuant to Rule 5.

1. [3]
   I consider that these are similar “special circumstances”, and I am prepared to consider the other allegations to which the documents are submitted to be directly relevant.

Category 8:

1. [4]
   Counsel for the applicant contends that these documents are directly relevant to various allegations in the pleadings, which I summarise as: duty of care between plaintiffs and each of the defendants, negligence of the first and third defendants, relationship between first and second defendants, negligence of third defendant and contributory negligence of plaintiffs.

1. [5]
   “Directly relevant” has been held to mean “something which tends to prove or disprove the allegation in issue”: Robson v Reb Engineering Pty Ltd [1997] 2 QdR 102, 104 and Cardinia Pty Ltd v Kennedy and Anor (1999) QSC 102, para 15.

1. [6]
   I am unable to see that the documents sought to be disclosed are directly relevant in this sense.

1. [7]
   It is of some importance that the dominant purpose test is the correct one for legal professional privilege, and that the privilege arises in respect of a communication from a third party if litigation is threatened or contemplated at the time the document is prepared and the test is an objective one.

1. [8]
   I consider that these documents are probably privileged (I am unable to make a clear decision on this point without the benefit of perusal of the documents).

   Category 9:

1. [9]
   I consider that this is a fishing expedition.

1. [10]
   In view of the generality of the category, it is not possible to decide whether the documents are directly relevant to “the allegations of negligence as raised in the pleadings” (para. 17 of written submissions of counsel for the applicants).

1. [11]
   In any event, I consider that these documents are probably privileged (I am unable to make a clear decision on this point without the benefit of perusal of the documents).

1. [12]
   I dismiss the application.