Johnston v Council of the Shire of Noosa
[2003] QDC 23
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- Unreported Judgment
- Johnston v Council of the Shire of Noosa[2003] QDC 23
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Johnston v Council of the Shire of Noosa[2003] QDC 23
Johnston v Council of the Shire of Noosa[2003] QDC 23
DISTRICT COURT OF QUEENSLAND
CITATION: | Johnston & Ors v. Council of the Shire of Noosa [2003] QDC 023 | |
PARTIES: | ROSEMARY LYNETTE JOHNSTON (First Plaintiff) And V.J. & R.L. JOHNSTON PTY LTD ACN 010 978 391 (Second Plaintiff) And VERNON JAMES JOHNSTON (Third Plaintiff) And COUNCIL OF THE SHIRE OF NOOSA (Defendant) | |
FILE NO/S: | D 344/99 | |
DIVISION: | Civil | |
PROCEEDING: | Application for disclosure of documents | |
ORIGINATING COURT: | District Court, Maroochydore | |
DELIVERED ON: | 26th March 2003 | |
DELIVERED AT: | Maroochydore | |
HEARING DATE: | 24th March 2003 | |
JUDGE: | Judge J.M. Robertson | |
ORDER: | The application is dismissed with costs. | |
CATCHWORDS: | LEGAL PROFESSIONAL PRIVILEGE – Disclosure of documents in expert report – claim of legal professional privilege – whether privilege impliedly waived – unfairness test Cases cited: Interchase Corporation Limited (in liq.) v. Grosvenor Hill (Queensland) Pty Ltd (No. 1) [1999] 1 Qd R 141 Mahoney v. Noosa District Community Hospital Limited [2003] 1 Qd R 168 Commissioner of Australian Federal Police v. Propend Finance Pty Ltd (1997) 188 CLR 501 Attorney-General (N.T.) v. Maurice (1986) 161 CLR 475 Mann v. Carnell (1999) 74 ALJR 378 Henderson v. Low & Ors [2000] QSC 417 Weidner & Anor. v. Cockrell & Ors [2001] QSC 046 Interchase Corporation Limited (in liq.) v. Grosvenor Hill (Queensland) Pty Ltd (No. 2) [1999] 1 Qd R 163 | |
COUNSEL: | M. Grant-Taylor SC (for the Plaintiffs) D.R. Murphy (for the Defendant) | |
SOLICITORS: | Boyce Garrick (for the Plaintiffs) King & Company (for the Defendant) | |
- [1]The applicant defendant seeks disclosure of “advices and correspondence from (the plaintiff’s) lawyers” which category of documents are referred to in a report of Barraclough Services Pty Ltd dated 6th January 2003 (the report). The plaintiff resists the application and raises a claim of legal professional privilege. As the trial is set down to proceed in the next sittings of the Court, leave is required. It is not opposed and leave to make the application on 13th March 2003 is granted.
- [2]The plaintiff’s claims are for damages resulting from injuries to the first plaintiff who tripped on a string line across a footpath in front of the RSL building in Cooroy on 24th September 1996.
- [3]As part of the plaintiff’s case the report was prepaid to support claims for economic loss of each of the plaintiffs. On page 3 of the report under the heading “Source Data” are documents described as “Advices and Correspondence from Boyce Garrick Lawyers” (the document). In a disclaimer on page 8 the author of the report states “… in the preparation of this report, Barraclough Services Pty Ltd has relied upon the information provided as defined in this report”. Apart from a reference to instructions from Boyce Garrick Lawyers to use a discount rate of 5%, there are no overt references in the report to the documents or their contents as far as one is able to ascertain.
- [4]The applicant contends that the documents are relevant to the issues and are subject to the plaintiffs’ general duty of disclosure under Chapter 7 of the rules, and that any privilege which might have attached to them has been waived by virtue of the disclosure and reliance upon them by the experts.
- [5]I have not perused the documents. There was some discussion on this point during argument but ultimately I relied upon the approach approved by Pincus JA in Interchase Corporation Limited (in liq.) v. Grosvenor Hill (Queensland) Pty Ltd (No. 1) [1999] 1 Qd R 141 at 151 where his Honour said:
“I do not accept that the judge must examine either all of the documents in question, or none of them. For practical reasons, it appears that the judge will ordinarily deal with challenged claims of privilege in accordance with categories, rather than the individual documents.”
- [6]His Honour’s reference to “practical reasons” relates to the large number of documents and categories of documents under consideration in that case; however, in my view, it matters not that here I am considering only one category or set of documents. The principle remains the same.
- [7]The first question (which was only faintly argued by the defendant) is, are the documents properly subject to a claim of legal professional privilege. As I have noted, Mr Murphy’s submission proceeded on the basis that the documents were prima facie privileged, but that privilege had been waived. In Mahoney v. Noosa District Community Hospital Limited [2003] 1 Qd R 168, Helman J considered an application for disclosure which has some factual similarities to the present case. However, in that case the defendant sought access to documents provided to a medical expert primarily on the basis of Chapter 14 of the UCPR. His Honour regarded the observation of Pincus JA (with whom de Jersey J (as the Chief Justice then was) agreed) in Interchase at page 151, as authority for the proposition that documents passing between a party’s solicitor and a potential expert witness for the purpose of obtaining evidence can be properly subject to a claim of privilege. Certainly Commissioner of Australian Federal Police v. Propend Finance Pty Ltd (1997) 188 CLR 501 is replete with observations in support of that proposition although, as Pincus JA observes in Interchase, in none of the High Court cases dealing with legal professional privilege was the question of witness’ document privilege directly raised. As his Honour notes in his analysis of those authorities on pages 152-153 of Interchase, it is communications between lawyer and client and with third parties in connection with giving of legal advice that is protected.
- [8]I therefore proceed on the basis that the documents as a category prima facie attract privilege and need not be disclosed.
- [9]That leaves the issue of waiver. Mr Murphy’s argument is that the expert having expressly stated that he has relied on the documents in the preparation of his report, privilege has thereby been waived. In Attorney-General (N.T.) v. Maurice (1986) 161 CLR 475 at 483 Gibbs CJ observes that waiver may be imputed where “disclosure or use of material that has been made renders it unfair to uphold the privilege in the associated material”. In Mann v. Carnell (1999) 74 ALJR 378 at 384 Gleeson CJ, Gaudron, Gummow and Callinan JJ said:
“… a person who would otherwise be entitled to the benefit of legal professional privilege may waive the privilege. … it is the client who is entitled to the benefit of such confidentiality, and who may relinquish that entitlement. It is inconsistency between the conduct of the client and maintenance of the confidentiality which effects a waiver of the privilege. … Waiver may be expressed or implied. Disputes as to implied waiver usually arise from the need to decide whether particular conduct is inconsistent with the maintenance of the confidentiality which the privilege is intended to protect. … the law recognises the inconsistency and determines its consequences, even though such consequences may not reflect the subjective intention of the party who has lost the privilege.”
- [10]This passage is quoted with approval by Chesterman J (at para 10) in Henderson v. Low & Ors [2000] QSC 417, a case relied upon by Mr Murphy in his submission. In that case, the medical expert relied upon and reproduced parts of another medical report which was privileged, to such an extent that it was in his Honour’s opinion “integrally connected to the subject matter of the litigation”; and for this reason, by application of the principles enunciated in Maurice and Mann, fairness to the plaintiff in that case demanded that he have access to the whole of the report to ensure that the parts disclosed contained all the matters relevant to the central issue in the litigation. Mr Murphy also relies on a decision of Jones J in Weidner & Anor. v. Cockrell & Ors [2001] QSC 046 which dealt with a similar issue to the one here, although in that case the accountants’ report went to the issue of liability, and the documents used in the preparation of the report were two statements. The applicant again was held to have waived privilege on the basis of the Maurice and Mann principles, because the disclosure to the expert was “integrally connected to the litigation”, and fairness would dictate that the applicant have access to those documents disclosed. Mr Grant-Taylor submits that Weidner is inconsistent with Interchase and should not be followed. In his written submissions, he says “indeed, the Court of Appeal’s decision in Interchase is not even mentioned in the judgment”. This is so, however his Honour relied on binding High Court authority and was not apparently referred to Interchase, although he was referred to the primary judgment of Ambrose J which was affirmed on different grounds in Interchase Corporation Limited (in liq.) v. Grosvenor Hill (Queensland) Pty Ltd (No. 2) [1999] 1 Qd R 163.
- [11]The degree of unfairness (if any) necessary to impute waiver must always be judged on the facts of the particular case. The degree of unfairness was obvious in Henderson and Weidner, but in relation to the documents under consideration in Interchase Pincus JA (at 156) said “… I fail to see how the respondent’s insistence upon privilege … can reasonably be described as unfair”.
- [12]Here, the best Mr Murphy can really say is that we don’t know what the documents are and therefore it might lead to unfairness to the defendant. The documents are not obviously reproduced in whole or in part in the expert’s report, and it could not be said that they have that integral connection with issues central to the litigation such as would encourage me to impute waiver and overrule the claim of privilege.
- [13]The application is dismissed with costs.