Boyes v Colins

Case [2000] WASCA 344


BOYES -v- COLINS [2000] WASCA 344



(2000) 23 WAR 123
SUPREME COURT OF WESTERN AUSTRALIACitation No:[2000] WASCA 344
THE FULL COURT (WA)
Case No:FUL:179/19998 & 28 SEPTEMBER 2000
Coram:PIDGEON J
IPP J
WALLWORK J
10/11/00
37Judgment Part:1 of 1
Result: Appeal allowed in part
PDF Version
Parties:MELANIE BOYES
JAMES CECIL COLINS

Catchwords:

Evidence
Legal professional privilege
Video film taken for the purpose of contemplated or pending litigation is a communication and subject to legal professional privilege
Difference between litigation privilege and legal professional privilege
Litigation privilege remains operational
Video film as real evidence
Whether video film is subject to privilege
Whether privilege waived by an order under O 36 r 4 allowing use of video film at trial without discovery inspection before trial
The test for waiver of privilege is objective
Procedure
Discovery
Application under O 36 r 4
Discretion under O 36 r 4 biased towards disclosure
Injustice caused by not producing the video film
"Cards on the table" approach
Relevance of case management
Principles
Approach regards medical witnesses
Order excusing respondent from producing video film overturned

Legislation:

Rules of the Supreme Court 1971, O 26, O 36 r 4

Case References:

Attorney General (NT) v Maurice (1986) 161 CLR 475
Baker v Campbell (1983) 153 CLR 52
Brown v Metro Meat International Ltd [2000] WASCA 123
Carter v Managing Partner, Northmore Davy & Leake (1995) 183 CLR 121
Ceci v Bonk (1992) 89 DLR (4th) 444
Chmara v Nguyen [1993] 6 WWR 286
Commissioner of Australian Federal Police v Propend Finance Pty Ltd (1997) 188 CLR 501
Cormier v Le Blanc (1993) 135 NBR (2d) 75
Craig v Troy, unreported; SCt of WA; Library No 950067; 24 February 1995
Digby v Essex County Council [1994] PIQR P53, CA
Donaldson v Harris [1973] 4 SASR 299
Esso Australia Resources Ltd v Federal Commissioner of Taxation (1999) 168 ALR 123
Goldberg v Ng (1995) 185 CLR 83
Grant v Downs (1976) 135 CLR 674
Instant Colour Pty Ltd v Cannon Australia Pty Ltd, unreported; Fed Ct of A; 24 April 1995
J-Corp Limited v Australian Builders Labourers Federated Union of Workers (WA Branch) [No 1] (1992) 38 FCR 452
Jessup v Andre Gorjup, unreported SCt of T; 20 November 1997
Johnson v American Home Assurance Co, unreported, SCt of WA; Library No 940599; 28 October 1994
Khan v Armaguard Ltd [1994] 1 WLR 1204
Liszka v Castledine, (1999) 21 SR (WA) 194
Main v Goodine (1997) 192 NBR (2d) 230
Mercer v Chief Constable of the Lancashire Constabulary [1991] 1 WLR 367
Queensland v JL Holdings Pty Ltd (1997) 189 CLR 146
R v Derby Magistrate's Court, Ex p B, [1996] 1 AC 487
Re Taxation Appeals NT 94/281-291 (1995) 30 ATR 1279
Smith's Weekly Publishing Co Ltd v Sunday Times Newspaper Co Ltd (1923) 31 CLR 552
Southern Equities Corporation Ltd v WA Government Holdings Ltd (1993) 10 WAR 1
The Palermo…

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AGLC
Boyes v Colins [2000] WASCA 344
Case
[2000] WASCA 344
Decision Date

CaseChat Overview and Summary

In the case of Boyes v Colins, the primary dispute revolves around the admissibility of a video film taken by the respondent for the purpose of pending litigation, and the applicability of legal professional privilege to this footage. The matter was brought before the court to determine whether the respondent was required to produce this video film for discovery and whether an order under O 36 r 4 of the relevant procedural rules could waive the privilege. The court was tasked with discerning the distinction between litigation privilege and legal professional privilege, and assessing whether the privilege was objectively waived by the order allowing the use of the video film at trial without prior inspection.

The court examined the nature of the video film as real evidence and its status as a communication, which is subject to legal professional privilege. It held that the privilege remains operational unless it is waived. The court considered the objective test for waiver of privilege, which requires a clear and unequivocal intention to waive the privilege. In this case, the court found that the order under O 36 r 4 did not constitute a waiver of privilege. The court also highlighted the importance of the "cards on the table" approach and the relevance of case management in assessing the injustice caused by not producing the video film.

Following the court's analysis, it determined that the order excusing the respondent from producing the video film was overturned. The court's reasoning was grounded in the principles of legal professional privilege and the objective test for waiver. The court concluded that the order did not reflect an unequivocal intention to waive the privilege, and thus the respondent was required to produce the video film for discovery. Consequently, the appeal was allowed in part, with the court's decision mandating the respondent to disclose the video film as required by law.

Orders

Orders of the court

Appeal allowed in part

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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