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Crawford v Quail

Crawford v Quail

Case [2021] WASC 290 24 August 2021

Jurisdiction

Discovery & Disclosure

Legal Professional Privilege

Common Interest Privilege

Civil Litigation & Procedure

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JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS

CITATION:   CRAWFORD -v- QUAIL [2021] WASC 290
CORAM:   HILL J
HEARD:   16 AUGUST 2021
DELIVERED          :   24 AUGUST 2021
FILE NO/S:   CIV 1037 of 2021
BETWEEN:   CATHERINE PATRICIA CRAWFORD
Plaintiff
AND
HIS HONOUR JUDGE HYLTON QUAIL
Defendant
THE STATE OF WESTERN AUSTRALIA
Intervenor

Catchwords:

Practice and procedure – Discovery – Application by plaintiff for court to inspect documents over which privilege is claimed by the defendant and the State – Claim of legal professional privilege in anticipation of litigation – Claim of common interest privilege – Turns on own facts

Legislation:

Rules of the Supreme Court 1971 (WA), O 26, r 9 and r 12

Result:

Application dismissed

Category: B

Representation:

Counsel:

Plaintiff	:	G R Donaldson SC & T A Hatelie
Defendant	:	E M Heenan
Intervenor	:	A J Sefton SC

Solicitors:

Plaintiff	:	Fiona Low Barrister & Solicitor
Defendant	:	McNally & Co
Intervenor	:	State Solicitor's Office

Cases referred to in decision:

Australian Reliance Group Pty Ltd v Coverforce Insurance Brokers Victoria Pty Ltd [No 3] [2017] WASC 60
AW v Rayney [2010] WASCA 161
AWB Ltd v Cole [2006] FCA 571; (2006) 152 FCR 382
AWB v Cole (No 5) [2006] FCA 1234; (2006) 155 FCR 30
Balabel v Air-India [1988] 1 Ch 317
Carey v Korda [2012] WASCA 228; (2012) 45 WAR 181
Commissioner of Taxation (Cth) v Pratt Holdings Pty Ltd [2005] FCA 1247; (2005) 225 ALR 266
Commissioner of Taxation (Cth) v Spotless Services Ltd [1996] HCA 34; (1996) 186 CLR 404
CTC Resources NL v Australian Stock Exchange Ltd [2000] WASCA 19; (2000) 22 WAR 48
Dalleagles Pty Ltd v Australian Securities Commission (1991) 4 WAR 325
DSE (Holdings) Pty Ltd v Intertan Inc [2003] FCA 1191; (2003) 135 FCR 151
Esso Australia Resources Ltd v Commissioner of Taxation (Cth) [1999] HCA 67; (1999) 201 CLR 49
Grant v Downs (1976) 135 CLR 674
Kennedy v Wallace [2004] FCAFC 337; (2004) 142 FCR 185
Lane v Admedus Regen Pty Ltd [2016] FCA 864
Mitsubishi Electric Australia Pty Ltd v Victorian WorkCover Authority [2002] VSCA 59; (2002) 4 VR 332
National Crime Authority v S (1991) 29 FCR 203
Rayney v AW [2009] WASCA 203
Strzelecki Holdings Pty Ltd v Cable Sands Pty Ltd (No 2) [2009] WASC 150
Woodings as liquidator of the Bell Group Ltd and the Bell Group Finance Pty Ltd v WA Glendinning & Associates Pty Ltd [2019] WASC 54

HILL J:

On 21 January 2021, the plaintiff commenced proceedings in this court against the defendant arising from a direction given by the defendant, as President of the Children's Court to the plaintiff, a magistrate in the Children's Court, on 8 December 2020.
These proceedings are being case managed by Justice Allanson and are listed for a five‑day hearing commencing 11 October 2021.
Originally, the parties agreed to provide discovery informally but subsequently filed affidavits of discovery. Orders…

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 Crawford v Quail

Details

AGLC: Crawford v Quail [2021] WASC 290
Case: [2021] WASC 290
Decision Date

CaseChat Overview and Summary

The plaintiff, Catherine Patricia Crawford, commenced proceedings against the defendant, His Honour Judge Hylton Quail, on 21 January 2021, arising from a direction given by the defendant to the plaintiff on 8 December 2020. The plaintiff challenges the claims for privilege made by the defendant and the State of Western Australia over a number of documents discovered by the defendant. The plaintiff requested that the court examine the documents to determine whether the claims for privilege are well founded. The court was required to decide whether the plaintiff had discharged her evidentiary onus that the claims for privilege made by the defendant and the State were mistaken or unfounded.

The court considered the legal principles of legal professional privilege and common interest privilege, as well as the onus of proof placed on the plaintiff. The court found that the plaintiff had not discharged her evidentiary onus to show the claims for privilege were mistaken or ill-founded. The court dismissed the plaintiff's application and did not inspect the documents to determine the validity of the claims that had been made. The court held that the plaintiff had not provided any evidence to support her submission that the claims for privilege were not well founded. The court found that the claims for privilege were based on valid grounds, such as the anticipation of litigation and the common interest between the defendant and the State in defending the claims made by the plaintiff. The court declined to inspect the documents and dismissed the plaintiff's application. The court will hear from the parties regarding the appropriate orders, including the costs of this application.

Orders