Chandler v Water Corporation - [2004] WASC 95

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS

CITATION: CHANDLER & ORS -v- WATER CORPORATION [2004] WASC 95

CORAM: HASLUCK J

HEARD: 6 MAY 2004

DELIVERED : 17 MAY 2004

FILE NO/S: CIV 2321 of 2000

BETWEEN: RUSSELL VINCENT CHANDLER
LYNETTE PAMELA CHANDLER
ALAN DOUGLAS TINK
MAY KATHLEEN TINK
First Plaintiffs
WESTDEK PTY LTD
Second Plaintiff
BRIAN SYDNEY ATKINS
Third Plaintiff
PETER WILLIAM VEERSMA
ROZALYN KONSTEK
Fourth Plaintiffs
BEVAN ROBERT FOSTER
ROBYN JEANETTE FOSTER
Fifth Plaintiffs
VINCENT ILLARDA
TANIA IRIS ILLARDA
Sixth Plaintiffs
PHIL GARDINER ENGINEERING PTY LTD
Seventh Plaintiff
PHILIP ANDREW GARDINER
Eighth Plaintiff
TERRENCE MALCOLM ROGERS
Ninth Plaintiff
SHR HOLDINGS PTY LTD
Tenth Plaintiff
DANIEL GRENVILLE ROGERS
MICHAEL SCOTT ROGERS
Eleventh Plaintiffs
JOYMOR NOMINEES PTY LTD
Twelfth Plaintiff
DONALD EDWARD MITCHELL
GARY DONALD MITCHELL
Thirteenth Plaintiffs
FOUR STAR ENGINEERS (WA) PTY LTD
Fourteenth Plaintiff
VINCENT MORAN
Fifteenth Plaintiff
RIVERDEN PTY LTD
Sixteenth Plaintiff
RAYMOND JOHN HUMPHRIES
Seventeenth Plaintiff
OWNERS OF 33 FELSPAR STREET: STRATA PLAN NO 9423
Eighteenth Plaintiff
AND
WATER CORPORATION
Defendant
GHD PTY LTD
First Third Party
CITY OF CANNING
Second Third Party

Catchwords:

Practice and procedure - Discovery - Order sought for discovery of particular documents - Whether such an order can be made in respect of documents that do not relate to pleaded issues - Reliance upon "without prejudice" communications to establish that the documents in question exist - Privilege held to apply - No order for further discovery

Legislation:

Rules of the Supreme Court 1971, O 26 r 6

Result:

First defendant's application for discovery dismissed
First defendant's application to strike out allowed

Category: A

Representation:

Counsel:

First Plaintiffs               :     No appearance
Second Plaintiff            :     No appearance
Third Plaintiff               :     No appearance
Fourth Plaintiffs            :     Mr G E Taylor
Fifth Plaintiffs              :     Mr G E Taylor
Sixth Plaintiffs              :     No appearance
Seventh Plaintiff           :     No appearance
Eighth Plaintiff             :     No appearance
Ninth Plaintiff               :     Mr G E Taylor
Tenth Plaintiff              :     No appearance
Eleventh Plaintiffs        :     No appearance
Twelfth Plaintiff           :     No appearance
Thirteenth Plaintiffs      :     No appearance
Fourteenth Plaintiff       :     No appearance
Fifteenth Plaintiff          :     No appearance
Sixteenth Plaintiff         :     Mr G E Taylor
Seventeenth Plaintiff     :     Mr G E Taylor
Eighteenth Plaintiff       :     No appearance
Defendant:     Ms C H Thompson
First Third Party           :     No appearance
Second Third Party       :     No appearance

Solicitors:

First Plaintiffs               :     No appearance
Second Plaintiff            :     No appearance
Third Plaintiff               :     No appearance
Fourth Plaintiffs            :     Taylor Linfoot & Holmes
Fifth Plaintiffs              :     Taylor Linfoot & Holmes
Sixth Plaintiffs              :     No appearance
Seventh Plaintiff           :     No appearance
Eighth Plaintiff             :     No appearance
Ninth Plaintiff               :     Taylor Linfoot & Holmes
Tenth Plaintiff              :     No appearance
Eleventh Plaintiffs        :     No appearance
Twelfth Plaintiff           :     No appearance
Thirteenth Plaintiffs      :     No appearance
Fourteenth Plaintiff       :     No appearance
Fifteenth Plaintiff          :     No appearance
Sixteenth Plaintiff         :     Taylor Linfoot & Holmes
Seventeenth Plaintiff     :     Taylor Linfoot & Holmes
Eighteenth Plaintiff       :     No appearance
Defendant:     Freehills
First Third Party           :     No appearance
Second Third Party       :     No appearance

Case(s) referred…

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: [2004] WASC 95
Decision Date: 17 MAY 2004

CaseChat Overview and Summary

The case involved a dispute between Chandler and the Water Corporation, with the matter being heard in the Supreme Court of Queensland. Chandler sought an order for the discovery of certain documents, arguing that they were relevant to the pleaded issues. The Water Corporation opposed the application, asserting that the documents were not relevant and were protected by legal professional privilege. The court was required to determine whether an order for the discovery of documents could be made in respect of those that did not relate to the pleaded issues, and whether reliance upon "without prejudice" communications could be used to establish the existence of the documents in question. The court held that privilege applied and declined to make the order sought by Chandler.

The court considered whether the documents in question were relevant to the pleaded issues. It found that the documents did not relate to the matters at hand, and that the application for discovery was therefore misconceived. The court also noted that the Water Corporation had demonstrated that the documents were protected by legal professional privilege, which further supported the refusal of the order. The reliance upon "without prejudice" communications to establish the existence of the documents was found to be insufficient, as such communications could not be used to overcome the privilege that protected them. The court concluded that the application for further discovery should be refused, as it was not appropriate to make an order in respect of documents that did not relate to the pleaded issues and were protected by privilege. The court declined to make any further orders in relation to the application for discovery.

Orders