Balnaves v Smith

Case [2008] QSC 215

SUPREME COURT OF QUEENSLAND

CITATION:

Balnaves v Smith & Anor [2008] QSC 215

PARTIES:

NEIL RICHARD BALNAVES
(plaintiff)
v
NEIL CLIFFORD SMITH
(first defendant)
and
ACN 060 759 382 PTY LTD
(second defendant)

FILE NO:

BS1391 of 2005

DIVISION:

Trial Division

PROCEEDING:

Application

ORIGINATING COURT:

Supreme Court, Brisbane

DELIVERED ON:

12 September 2008

DELIVERED AT:

Supreme Court, Brisbane

HEARING DATE:

9 September 2008

JUDGE:

Douglas J

ORDER:

Application dismissed.  Further submissions sought as to costs.

CATCHWORDS:

PROCEDURE – DISCOVERY AND INTERROGATORIES – PRODUCTION AND INSPECTION – GENERALLY – OTHER CASES – where mention was made of the provision of “certain advices” in an affidavit of the plaintiff’s solicitor – whether such reference enlivened the provisions of r.222 of the Uniform Civil Procedure Rules 1999

PROCEDURE – DISCOVERY AND INTERROGATORIES – PRODUCTION AND INSPECTION – GROUNDS FOR RESISTING PRODUCTION – LEGAL PROFESSIONAL PRIVILEGE – PARTICULAR CASES – whether on its proper construction r.222 of the Uniform Civil Procedure Rules 1999 overrides legal professional privilege

PROCEDURE – DISCOVERY AND INTERROGATORIES – PRODUCTION AND INSPECTION – GROUNDS FOR RESISTING PRODUCTION – LEGAL PROFESSIONAL PRIVILEGE – WAIVER OF PRIVILEGE – where the plaintiff through his solicitor revealed that he had made an admission after receiving advice – where the effect of the advice is not revealed – whether an inconsistency arose between the plaintiff’s conduct and maintenance of the confidentiality of the advice given

Civil Procedure Rules 1998 (UK), Pt. 31.14
Uniform Civil Procedure Rules 1999 (Qld), r.211, 212, 222

Uniform Civil Procedure Rules 2005 (NSW), r.21.10

Balnaves v Smith [2008] QSC 150, cited
Century Drilling Ltd v Gerling Australia Insurance Co Pty Ltd [2004] 2 Qd R 481, cited
Daniels Corporation International Pty Ltd v Australian Competition and Consumer Commission (2002) 213 CLR 543, cited
Dubai Bank Ltd v Galadari (No 2) [1990] 1 WLR 731, cited
Expandable Ltd v Rubin [2008] EWCA Civ 59, followed
GMCG, LLC v Agenix Ltd [2007] QSC 309, cited
Mann v Carnell (1999) 201 CLR 1, cited
Mantaray Pty Ltd v Brookfield Breeding Co Pty Ltd [1992] 1 Qd R 91, cited
Marubeni Corporation v Alafouzos (Court of Appeal, England and Wales; 6 November 1986, unreported), considered
New Cap Reinsurance Corporation Ltd (in liq) v Daya [2008] NSWSC 763, cited
Osland v Secretary to the Department of Justice [2008] HCA 37, applied
Rhyse Holdings Pty Ltd v McLaughlins (a firm) [2002] QCA 122, cited

RP Data Limited v Property Data Solutions Pty Ltd [2006] QSC 214, cited

COUNSEL:

C. Harding for the applicant
J. B. Sweeney for the respondents

SOLICITORS:

Cantwell Lawyers for the applicant
MacGillivrays for the respondents

  1. Douglas J:  The plaintiff has instituted proceedings claiming damages for personal injuries he suffered in a boating accident on the Coomera River when the boat he was driving collided with a boat driven by the first defendant.  In his reply he originally admitted his own contributory negligence to the extent of “not more than” 25 per cent but,…

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Balnaves v Smith [2008] QSC 215
Case
[2008] QSC 215
Decision Date

CaseChat Overview and Summary

Balnaves v Smith involved a dispute where the plaintiff sought to compel the defendant to produce documents and answer interrogatories. The court had to consider whether the reference to "certain advices" in the plaintiff's affidavit triggered the requirements of rule 222 of the Uniform Civil Procedure Rules 1999, which mandates the disclosure of legal advice obtained for the purpose of litigation. Furthermore, the court examined whether rule 222 overrides legal professional privilege and whether the plaintiff's admission of receiving advice constituted a waiver of privilege.

The legal issues before the court were whether the reference to "certain advices" necessitated disclosure under rule 222 and if this rule indeed superseded legal professional privilege. Additionally, the court assessed whether the plaintiff's admission of receiving advice without disclosing its contents created an inconsistency with the confidentiality of the legal advice.

The court determined that the reference to "certain advices" did not automatically trigger the disclosure requirements of rule 222, as the nature and content of the advice were not sufficiently detailed. Regarding the interaction between rule 222 and legal professional privilege, the court held that rule 222 does not override the privilege. However, the plaintiff's admission of receiving advice, without disclosing its contents, did not in itself constitute a waiver of privilege. The court concluded that there was no inconsistency in the plaintiff's conduct and the maintenance of the confidentiality of the advice given.

The court dismissed the application and sought further submissions on the issue of costs.

Orders

Orders of the court

Application dismissed. Further submissions sought as to costs.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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