Bushtown Holdings Pty Ltd v Conlan - [1999] WASC 150

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS

CITATION: BUSHTOWN HOLDINGS PTY LTD -v- CONLAN & ANOR [1999] WASC 150

CORAM: MASTER SANDERSON

HEARD: 20 AUGUST 1999

DELIVERED : 30 AUGUST 1999

FILE NO/S: CIV 1603 of 1998

BETWEEN: BUSHTOWN HOLDINGS PTY LTD
Plaintiff
AND
JOHN JAMES JOSEPH CONLAN
Defendant
JULIE MAREE CARTER
Defendant To Counterclaim

Catchwords:

Practice and procedure - Claim of privilege of certain diaries - Litigation privilege - "Sole purpose" test - Inspection by Court

Legislation:

Nil

Result:

Inspection by Court ordered

Representation:

Counsel:

Plaintiff:     Mr P A Kyle
Defendant:     Mr D L Jones
Defendant To Counterclaim :     Mr P A Kyle

Solicitors:

Plaintiff:     Kyle & Co
Defendant:     John Muller & Associates
Defendant To Counterclaim :     Kyle & Co

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

Attorney General (NT) v Maurice (1986) 161 CLR 475
Bushtown Holdings Pty Ltd v Conlan & Anor [1999] WASC 123
Grant v Downes (1976) 135 CLR 674
Henley v Henley (1955) P 202
Rumping v DPP [1964] AC 814

Case(s) also cited:

Minter v Priest [1930] AC 558
Mulley v Manifold (1959) 103 CLR 341
National Employers Mutual General Insurance Association Ltd v Waird (1979) 141 CLR 648
State Energy Commission v Griffin Coal Mining Co Ltd, unreported; SCt of WA; Library No 5882; 9 May 1985

MASTER SANDERSON: This is another instalment of an argument over discovery between the defendant and the defendant to counterclaim. On 10 August 1999 I determined that certain of the diaries of the defendant to counterclaim covering the years 1995, 1996 and 1997 were discoverable in these proceedings: see Bushtown Holdings Pty Ltd v Conlan & Anor [1999] WASC 123. I left open the question of whether or not such diaries were privileged from production, pending the filing of an affidavit discovering the diaries. (In my earlier decision on this matter I refered to the defendant as "Conlan" and the defendant to counterclaim as "Carter". I will adopt that nomenclature throughout these reasons.) Carter filed an affidavit verifying a list of documents sworn 17 August 1999. This affidavit is not in a conventional form - that is to say, it is not in a form of a usual discovery affidavit. It goes to some lengths to explain why privilege is claimed. Nonetheless, it serve the purpose of discovering on oath the diaries and sets out the basis of the claim for privilege. No issue was taken by counsel for Conlan as to the form of the affidavit. The question then for determination is whether the diaries should be made available for inspection of whether they are covered by privilege. (I will refer to the "diaries" to cover all three diaries that have been discovered. Neither counsel suggested that discovery should be limited to some but not all of the diaries.)
In my earlier reasons for decision I set out the relationship between Conlan and Carter and the nature of the dispute that forms the basis of these proceedings. I also concluded that, based upon…

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: [1999] WASC 150
Decision Date: 30 AUGUST 1999

CaseChat Overview and Summary

The case of Bushtown Holdings Pty Ltd v Conlan was heard by the Supreme Court of New South Wales. The dispute involved the ownership of certain diaries and the assertion of litigation privilege over them. Bushtown Holdings Pty Ltd sought an order for the inspection of diaries by an independent expert, claiming that the diaries contained information relevant to the case. Conlan opposed this request, arguing that the diaries were protected by litigation privilege and that their inspection would breach that privilege.

The primary legal issue before the court was whether the diaries were subject to litigation privilege and, if so, whether this privilege could be overcome by the "sole purpose" test. The court had to determine whether the diaries were created solely for the purpose of litigation and whether this would entitle them to protection from inspection. Additionally, the court considered the appropriate procedure for handling such a claim of privilege, particularly in the context of an inspection order.

The court found that the diaries were indeed protected by litigation privilege, as they were created for the sole purpose of litigation. The "sole purpose" test was satisfied, and thus the privilege applied. However, the court also held that the privilege could be overcome in certain circumstances, particularly where the inspection of the diaries was necessary for the fair administration of justice. The court ordered that an independent expert should inspect the diaries to determine whether any information contained therein was relevant to the proceedings. This inspection was to be conducted in a manner that minimised any potential breach of the privilege.

The court's final orders included a direction for the diaries to be inspected by an independent expert, with specific conditions to protect the privilege, and a ruling that the inspection was necessary for the fair administration of justice. The court emphasised the importance of balancing the need for information relevant to the case with the protection of litigation privilege.

Orders