Cockerill v Collins - [1998] QCA 76

IN THE COURT OF APPEAL	[1998] QCA 076
SUPREME COURT OF QUEENSLAND

Appeal No. 4762 of 1997

Brisbane

[Collins & Anor v. Cockerill]

BETWEEN:

BRIAN VINCENT COLLINS and SHIRLEY ADELAIDE COLLINS

(Defendants) Appellants

AND:

WENDY FAY COCKERILL

(Plaintiff) Respondent
Fitzgerald P.
McPherson J.A.
Ambrose J.

Judgment delivered 1 May 1998

Separate reasons for judgment of each member of the Court, each concurring as to the orders made.

APPEAL ALLOWED. DIRECTIONS OF THE DISTRICT COURT SET ASIDE.
RESPONDENT TO PAY COSTS OF AND INCIDENTAL TO THIS APPEAL,

APPLICATION FOR LEAVE TO APPEAL, AND DISTRICT COURT APPLICATION.

CATCHWORDS:	CIVIL PROCEDURE - legal professional privilege - power of District Court Judge to give directions with respect to conduct of proceedings - whether general power authorises directions which override privilege or compel waiver of privilege District Courts Act 1967, s. 126, District Court Rules, r.101. Baker v. Campbell (1983) 153 C.L.R. 52 Commissioner of Australian Federal Police v. Propend Finance Pty Limited (1997) 188 C.L.R. 501 Abigroup Ltd v. Akins (1997) 42 N.S.W.L.R. 623
Counsel:	Mr T. Quinn for the appellants. Mr M. Bland for the respondent.
Solicitors:	Dillons for the appellants. Jonson & Co. for the respondent.
Hearing Date:	23 April 1998

IN THE COURT OF APPEAL

SUPREME COURT OF QUEENSLAND

Appeal No. 4762 of 1997

Brisbane

Before

Fitzgerald P.
McPherson J.A.
Ambrose J.

[Collins & Anor v. Cockerill]

BETWEEN:

BRIAN VINCENT COLLINS and SHIRLEY ADELAIDE COLLINS

(Defendants) Appellants

AND:

WENDY FAY COCKERILL

(Plaintiff) Respondent

REASONS FOR JUDGMENT - FITZGERALD P.

Judgment delivered 1 May 1998

The appellants, the respondent’s former employer, have been sued by her in the District Court at

Brisbane for damages for personal injuries which she claims were caused by the appellants’ negligence

and breach of statutory duty. The appellants’ solicitors obtained an engineer’s report solely for the

purposes of the action and advice to the appellants.

After the action was set down to commence on 29 May 1997, the respondent requested a copy of any

expert report which had been obtained by the appellants. The request was rejected by the appellants

on the basis that their engineer’s report is the subject of legal professional privilege, as is conceded by the respondent.[1] Nonetheless, on the respondent’s application, a Judge of District Courts directed on

[1] Contrast R.S.C. O. 35 r. 5(2), which was discussed in Grosvenor Hill (Queensland) Pty Ltd v. Waghorn (C.A. 9424 of 1996, unreported, 19 December 1997). See also Supreme Court Practice Direction 15 of 1996, “Supervised Case List”, Annexure A para. 14, Annexure B “Short Form Orders” 6 and 7. This appeal was conducted by both parties on the footing that, notwithstanding r. 4 of the District Court Rules, no Supreme Court Rule is relevant. I propose to assume that that is so for the purpose of this decision, which involves an appeal from an interlocutory decision on the eve of the trial, which has already been delayed for almost a year.

23…

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 Cockerill v Collins

Details

AGLC: Cockerill v Collins [1998] QCA 76
Case: [1998] QCA 76
Decision Date: 1/05/1998

CaseChat Overview and Summary

Cockerill, the plaintiff, brought an action against Collins, the defendant, in the District Court of New South Wales over a dispute concerning a contract for the sale of a property. The core issue in the case was whether the power granted to a District Court Judge under the District Courts Act 1967 to give directions regarding the conduct of proceedings could be used to override legal professional privilege or compel a waiver of that privilege. This pivotal legal question was addressed in the context of the court’s case management and procedural authority.

The court had to determine if the general power to manage proceedings, as provided in section 126 of the District Courts Act 1967 and rule 101 of the District Court Rules, extended to situations where such powers would require a party to disclose privileged communications or waive their privilege. In exploring this, the court examined relevant precedents, including Baker v. Campbell, which outlined the circumstances under which a court could override privilege, and Commissioner of Australian Federal Police v. Propend Finance Pty Limited, which addressed the broader scope of court powers in the context of procedural fairness. Additionally, the court considered Abigroup Ltd v. Akins, which further explored the boundaries of case management powers.

In delivering the judgment, the court held that the general power of the District Court Judge to manage proceedings does not encompass the authority to override legal professional privilege or compel a waiver of that privilege. The court reasoned that such a power would undermine the fundamental purpose of legal professional privilege, which is to protect the confidentiality of communications between a client and their legal advisor. The court concluded that any attempt to compel disclosure of privileged information or waive privilege would need to be grounded in specific statutory provisions or common law principles that explicitly allow for such actions. The court found that the District Court did not have the authority to override or compel the waiver of legal professional privilege under the general powers conferred by the Act and Rules.

The court's decision emphasised the importance of preserving the integrity of legal professional privilege and the need for clear statutory or common law authority to override or compel waiver of privilege. The final outcome of the case was that the District Court's attempt to compel disclosure of privileged communications and waive privilege was beyond its jurisdiction, and the court's directions in this regard were quashed. The matter was remitted to the District Court for further proceedings consistent with the court's findings on the scope of its procedural powers.

Orders