Brewer v Colonial Portfolio Services Ltd - [2007] WASC 22

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS

CITATION: BREWER & ANOR -v- COLONIAL PORTFOLIO SERVICES LTD & ORS [2007] WASC 22

CORAM: MASTER SANDERSON

HEARD: 16 OCTOBER 2006

DELIVERED : 6 FEBRUARY 2007

FILE NO/S: CIV 2538 of 2001

BETWEEN: KEVIN CHARLES BREWER
DIANNE MERRILYN BREWER
Plaintiffs
AND
COLONIAL PORTFOLIO SERVICES LTD (ACN 066 649 241)
WESTGATE PROPERTY INVESTMENTS PTY LTD (ACN 008 713 175)
First Defendants
SAVOY MANAGEMENT PTY LTD (ACN 008 684 820)
Second Defendant
ANDREW PAGE
Third Defendant
IAN WILSON
Fourth Defendant

Catchwords:

Practice and procedure - Application for inspection of documents over which privilege claimed - Application for leave to administer interrogatories - Turns on own facts

Legislation:

Trade Practices Act 1974 (Cth), s 51A, s 52

Result:

Applications refused

Category: B

Representation:

Counsel:

Plaintiffs:     Mr S G Leslie
First Defendants            :     Mr P Mendelow
Second Defendant         :     Mr P Mendelow
Third Defendant            :     Mr P Mendelow
Fourth Defendant           :     Mr P Mendelow

Solicitors:

Plaintiffs:     Wilson & Atkinson
First Defendants            :     Mullins Handcock
Second Defendant         :     Mullins Handcock
Third Defendant            :     Mullins Handcock
Fourth Defendant           :     Mullins Handcock

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

Commissioner of Australian Federal Police v Propend Finance Pty Ltd (1997) 188 CLR 501
Dalecoast Pty Ltd v Monisse [1999] WASCA 103

MASTER SANDERSON: By this application, the plaintiffs seek two orders. First, an order that they be entitled to inspect certain documents referred to in an affidavit of discovery lodged by the first defendants. Second, the plaintiffs seek leave to administer interrogatories. To understand the nature of the first application, it is necessary to provide a brief summary of the facts.
On 18 September 2003, an affidavit of supplementary discovery was sworn on behalf of the first defendants. Appearing in Pt 1 of the first schedule to the list of documents, was a series of documents which were then in the possession of the first defendants but which were the property of a third party. On 14 October 2003, the solicitors for the plaintiffs sought to inspect these discovered documents. Inspection was refused. The basis for the refusal was that the third party owner of the documents had, some time prior to the request being made, sought the return of the documents and refused the first defendants permission to allow inspection by the plaintiffs.
On 12 November 2003, the first defendants returned the documents to the third party. They have now gone missing and all efforts to trace them have come to nothing. It must be assumed that they will not be recovered. Hence, the plaintiffs cannot inspect these documents either by way of third party discovery, or by subpoena.
Prior to returning the documents to the third party, the first defendants' solicitors took photocopies of some of the documents. The first defendants then lodged a further supplementary affidavit of discovery sworn 30 January 2004. The documents that were photocopied were then listed in Pt 2 of the first schedule to the list of documents. In other words, privilege…

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.

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Details

Case: [2007] WASC 22
Decision Date: 6 FEBRUARY 2007

CaseChat Overview and Summary

The case of Brewer v Colonial Portfolio Services Ltd involved a dispute between the plaintiff, Brewer, and the defendant, Colonial Portfolio Services Ltd. Brewer sought to inspect certain documents held by Colonial Portfolio Services Ltd, which the latter claimed were subject to legal professional privilege. The case was heard in the Federal Court of Australia, where Brewer applied for an inspection of the documents and leave to administer interrogatories.

The court was required to determine whether the documents were indeed protected by legal professional privilege and, if so, whether Brewer was entitled to inspect them under the circumstances of the case. Additionally, the court had to decide whether Brewer was entitled to leave to administer interrogatories to Colonial Portfolio Services Ltd in order to obtain further information about the documents in question.

In its reasoning, the court found that the documents in question were indeed protected by legal professional privilege. However, it also noted that the application for inspection was not made in the appropriate manner, and that there were other, more suitable ways for Brewer to obtain the information he sought. The court further found that the application for leave to administer interrogatories was not justified, as Brewer had not demonstrated a sufficient need for the information sought. Consequently, the court dismissed both the application for inspection and the application for leave to administer interrogatories.

In summary, the Federal Court of Australia found that the documents in question were protected by legal professional privilege and dismissed Brewer's applications for inspection and leave to administer interrogatories. The court's decision was based on the specific circumstances of the case and the appropriate legal principles governing privilege and discovery.

Orders