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Carter v Northmore Hale Davy & Leake

Carter v Northmore Hale Davy & Leake

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Case Copied 14 June 1995 42 min read

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HIGH COURT OF AUSTRALIA

BRENNAN, DEANE, TOOHEY, GAUDRON AND McHUGH JJ

LOUIS JAMES CARTER v. THE MANAGING PARTNER, NORTHMORE HALE DAVY AND LEAKE AND OTHERS

(1995) 129 ALR 593

14 June 1995

Practice—Evidence—Legal professional privilege—Subpoena duces tecum—Privileged documents—Documents relevant to defence of accused in criminal trial.

Headnote

A person who has in his possession or power documents which are subject to legal professional privilege which is not waived cannot be compelled to produce them on subpoena issued on behalf of an accused person in criminal proceedings even though they may establish the innocence of the accused or may materially assist his defence.

So held, by Brennan, Deane and McHugh JJ, Toohey and Gaudron JJ dissenting.

R v Barton (1973) 1 WLR 115 at 118; (1972) 2 All ER 1192 at 1194, disapproved.

R v Craig (1975) 1 NZLR 597 at 599, and R v Ataou (1988) QB 798 at 807, not followed.

Decision of the Supreme Court of Western Australia (Full Court) affirmed.

Hearing

CANBERRA, 1994 November 15, 1995 June 14
#DATE 14:6:1995

APPEAL from the Supreme Court of Western Australia.

Louis James Carter was charged before the Supreme Court of Western Australia with conspiracy to defraud the public and four other offences. By subpoenas served upon Northmore Hale Davy and Leake, Wardley Australia Ltd, Wardley Australia Securities Ltd, Price Waterhouse and Jonathan Pope, Carter sought production to the Court of documents for the purpose of his defence. Some of the documents were brought into existence by a legal practitioner solely for the purpose of giving of confidential legal advice and fell within the ambit of legal professional privilege. Seaman J upheld objections taken to production of those documents (1). His decision was upheld by the Full Court (Malcolm CJ, Rowland and Franklyn JJ). Carter appealed from the judgment of the Full Court to the High Court by special leave.

(1) R v Connell (No 2) (1992) 8 WAR 148.

I McC Barker QC (with him P G Clifford), for the appellant. The legal professional privilege of others should yield to the public interest in an accused person having a fair trial where material the subject of the privilege may establish his innocence or materially assist in his defence. There is no direct authority in Australia beyond the judgments in the Court below. Statements in the judgments in this Court on the nature and scope of legal professional privilege should not be taken as applying to material required by an accused person to establish his innocence or for the purpose of materially assisting in preparation of the defence. Statements in Baker v Campbell (2) are in the context of a consideration of the scope of a search warrant and the disclosure of privileged documents to agencies of the Crown. The other leading cases deal with civil litigation (3). Criminal proceedings stand in a special position (4). The holding we contend for would be consistent with English law (5). Any access to documents otherwise privileged would be subject to appropriate…

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: [1995] HCA 33
Decision Date: 14 June 1995

CaseChat Overview and Summary

The High Court of Australia considered a dispute between the appellant, Carter, and the respondent law firm, Northmore Hale Davy & Leake. The core of the disagreement concerned the appellant's claim for damages arising from alleged negligence on the part of the respondent in conducting litigation on his behalf.

The central legal issue before the High Court was whether the respondent law firm had been negligent in its conduct of the appellant's previous litigation, and if so, whether that negligence had caused the appellant to suffer loss. This involved an examination of the standard of care expected of a solicitor in conducting litigation and the principles of causation in tort law, particularly in the context of a "case within a case" scenario where the success of the current claim depended on proving the appellant would have succeeded in the original litigation but for the alleged negligence.

The Court ultimately held that the respondent had not been negligent. Applying the principles established in *Bolton v Stone* and *Rowe v McCartney*, the judges found that the respondent's actions, viewed objectively at the time they were taken, fell within the bounds of reasonable professional practice. The Court determined that the appellant had failed to demonstrate that the respondent's conduct fell below the standard of care expected of a reasonably competent solicitor, and therefore, the claim for damages could not succeed.

Orders