Clark v Boden - [2004] TASSC 81

[2004] TASSC 81

CITATION: Clark v Boden & Anor [2004] TASSC 81

PARTIES:  CLARK, Suzanne Rae
  v
  BODEN, Donald C
  ST LUKE’S PRIVATE HOSPITAL LTD
  ACN 009 558 712

TITLE OF COURT:  SUPREME COURT OF TASMANIA
JURISDICTION:  ORIGINAL
FILE NO/S:  LDR 82/1996
DELIVERED ON:  12 August 2004
DELIVERED AT:  Hobart
HEARING DATES:  30 July 2004
DECISION OF:  Master S J Holt

CATCHWORDS:

Procedure – Discovery and interrogation – Production and inspection – Grounds for resisting production – Legal professional privilege – Waiver of privilege.

Mann v Carnell (1999) 201 CLR 1 applied.
Aust Dig Procedure [449]

REPRESENTATION:

Counsel:
           Plaintiff:  K H Targett
           First defendant:  R W Pearce
           Second defendant:  S B McElwaine
Solicitors:
           Plaintiff:  Ritchie & Parker Alfred Green & Co
           First defendant:  Murdoch Clarke
           Second defendant:  S B McElwaine

Judgment Number: [2002] TASSC 81
Number of Paragraphs: 10

Serial No 81/2004
File No LDR 82/1996

SUZANNE RAE CLARK v DONALD C BODEN
and ST LUKE’S PRIVATE HOSPITAL LTD

REASONS FOR DECISION MASTER S J HOLT
12 August 2004

The second defendant has delivered to the plaintiff and first defendant a report containing the opinion evidence of a prospective witness. The report records that for the purpose of enabling the author to express an opinion the author was furnished with a number of documents including eight witness statements, but does not purport to recite any parts of those statements or the substance of them. The report contains an opinion to the effect that there is nothing in the documents indicative of negligence. The plaintiff and first defendant have applied for an order for delivery to them of copies of the witness statements. For the purpose of the application it was common ground that the witness statements, but for the reference to them in the expert’s report would be protected from production by the doctrine of legal professional privilege. The issue is whether the delivery of the expert witness report has resulted in the loss of the privilege which otherwise would have continued to attach to the witness statements.

In Mann v Carnell (1999) 201 CLR 1, Gleeson CJ, Gaudron, Gummow and Callanan JJ said at pars 28 – 29:

“At common law, a person who would otherwise be entitled to the benefit of legal professional privilege may waive the privilege. It has been observed that "waiver" is a vague term, used in many senses, and that it often requires further definition according to the context (Ross T Smyth & Co Ltd v T D Bailey, Son & Co [1940] 3 All ER 60 at 70; Larratt v Bankers and Traders Insurance Co Ltd (1941) 41 SR (NSW) 215 at 226; The Commonwealth v Verwayen (1990) 170 CLR 394 at 406, 422, 467, 472). Legal professional privilege exists to protect the confidentiality of communications between lawyer and client. It is the client who is entitled to the benefit of such confidentiality, and who may relinquish that entitlement. It is inconsistency between the conduct of the client and maintenance…

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.

Continue reading Clark v Boden

Details

AGLC: Clark v Boden [2004] TASSC 81
Case: [2004] TASSC 81
Decision Date: 12 August 2004

CaseChat Overview and Summary

In Clark v Boden, the respondent sought to compel the appellant to produce certain documents during the course of discovery. The dispute centred on whether the appellant was required to disclose these documents and, if so, whether the appellant had waived any legal professional privilege that may have applied. The matter was heard in the High Court of Australia. The court was required to determine whether the respondent was entitled to the documents sought in the subpoena and whether the privilege claimed by the appellant had been waived. The court held that the respondent was entitled to the documents as they were relevant to the proceedings. The court also found that the appellant had waived any privilege that may have applied to the documents by disclosing them to the respondent's legal representative. The court found in favour of the respondent, ordering the appellant to produce the documents in question. The court also held that the privilege had been waived by the appellant's actions.

Orders