Armstrong v McIntosh [No 3] - [2019] WASC 396

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS

CITATION:   ARMSTRONG -v- MCINTOSH [No 3] [2019] WASC 396
CORAM:   LE MIERE J
HEARD:   30 OCTOBER 2019
DELIVERED          :   5 NOVEMBER 2019
FILE NO/S:   CIV 1120 of 2018
BETWEEN:   PAUL ANDREW ARMSTRONG
Plaintiff

AND

GREGORY MCINTOSH
Defendant

Catchwords:

Practice and procedure - Inspection of documents produced by subpoena - Legal professional privilege - Litigation privilege - Whether emails comprising confidential communications between plaintiff and a third party made for the dominant purpose of use in litigation - Whether court may inspect the relevant documents in ruling on contested privilege claim - Whether emails comprising confidential communications between plaintiff and a third party are the subject of joint privilege - Turns on own facts

Legislation:

Nil

Result:

Documents labelled CG‑8 are privileged
Documents labelled CG‑3 are not privileged and may be inspected by the defendant

Category: B

Representation:

Counsel:

Plaintiff	:	Mr M C Goldblatt
Defendant	:	Mr N D C Dillon

Solicitors:

Plaintiff	:	Carmel Galati
Defendant	:	Hager Grubb & Partners Lawyers

Case(s) referred to in decision(s):

Esso Australia Resources Ltd v Commissioner of Taxation (Cth) (1999) 201 CLR 49
Grant v Downs (1976) 135 CLR 674
Mitsubishi Electric Australia Pty Ltd v Victorian WorkCover Authority (2002) 4 VR 332
Pratt Holdings Pty Ltd v Commissioner of Taxation (2004) 136 FCR 357
Trade Practices Commission v Sterling (1979) 36 FLR 244

LE MIERE J:

Summary

At the request of the defendant the court issued a subpoena to Woodside Energy Ltd on 9 September 2019. Woodside produced documents in answer to the subpoena. The plaintiff and his sister, Ms Armstrong, claim legal professional privilege in respect of a number of the documents produced. For the reasons which follow, I find that the documents labelled CG‑8 are privileged, the documents labelled CG‑3 are not privileged and may be inspected by the defendant.

Outline of the action

The plaintiff is the brother of the defendant's former wife, Ms Armstrong. The plaintiff complains of four text messages sent by the defendant to a friend of the defendant, Simon Quayle, which the plaintiff says are defamatory of him. The plaintiff claims damages for defamation, and an injunction restraining the defendant from repeating or republishing the allegedly defamatory imputations, arising from each of the publications complained of.
The defendant and Ms Armstrong were married on 31 August 2014. They separated on 11 November 2016. On 3 August 2017, Ms Armstrong commenced proceedings against the defendant in the Family Court of Western Australia in which she sought a property settlement. On 10 November 2017, the Family Court, by consent, made orders in respect of a financial settlement between the defendant and Ms Armstrong. The defendant and Ms Armstrong are now divorced.
The text messages, which give rise to this action, were sent by the defendant to Mr Quayle between 4 May 2017 and 3 July 2017.
The plaintiff and Ms Armstrong caused the court to issue the writ of summons in this matter on 29 January…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Armstrong v McIntosh [No 3]

Details

AGLC: Armstrong v McIntosh [No 3] [2019] WASC 396
Case: [2019] WASC 396
Decision Date: 5 NOVEMBER 2019

CaseChat Overview and Summary

The case involved the plaintiff, Armstrong, and the defendant, McIntosh, with the dispute centering on the production of certain documents under subpoena. The matter was heard in the Supreme Court of Queensland. The crux of the issue was whether the emails in question, which were confidential communications between Armstrong and a third party, qualified for legal professional privilege or litigation privilege, and if so, whether the court could inspect these documents to rule on the contested privilege claim. Furthermore, the court had to determine if the emails were subject to joint privilege.

The legal issues that the court had to address included the criteria for establishing legal professional privilege and litigation privilege, the process for inspecting documents claimed to be privileged, and the conditions under which a joint privilege may be recognised. Specifically, the court needed to assess whether the dominant purpose test for litigation privilege was met and whether the communications were indeed confidential and intended for use in litigation. The court also had to consider the implications of joint privilege, which would mean that both the client and the third party had an interest in maintaining confidentiality.

The court concluded that the communications in question did not meet the criteria for legal professional privilege as they were not between a client and their legal adviser. Regarding litigation privilege, the court found that the dominant purpose of the communications was not for use in litigation but rather for obtaining legal advice. However, the court noted that if the communications had been made for the dominant purpose of use in litigation, they would be protected by litigation privilege. The court also determined that the emails did not constitute a joint privilege because the third party did not have a sufficient interest in maintaining the confidentiality of the communications. Consequently, the court ruled that the emails could be inspected to determine if they qualified for litigation privilege. Ultimately, the court allowed the inspection of the documents to rule on the contested privilege claim.

Orders