Dean v More Than a Morsel Pty Ltd - [2002] ACTSC 101

DEAN v MORE THAN A MORSEL PTY LTD
[2002] ACTSC 101 (27 September 2002)

CATCHWORDS

NON-PARTY PRODUCTION – order sought that defendant produce documents listed in notice to produce addressed to defendant’s solicitors – source of power to make order.
LEGAL PROFESSIONAL PRIVILEGE – waiver – whether documents referred to in doctor’s report attracted privilege – doctor’s report served under O 39 r 46 – whether service implied waiver of privilege in documents referred to – whether fairness required privilege to be regarded as waived – it did.
PRACTICE AND PROCEDURE – service of experts’ reports before trial – whether compelled by Rules – it was not.

Rules of Court, O 34B r 7, O 39 r 46

Goldberg v Ng (1995) 185 CLR 83

Attorney-General (NT) v Maurice (1986) 161 CLR 475

Sevic v Roarty (1998) 44 NSWLR 287

Refshauge and Dingwall, Civil Procedure ACT [9850.1]

ON APPEAL FROM THE MASTER

No. SC 420 of 1999

Judge: Miles CJ
Supreme Court of the ACT
Date: 27 September 2002

IN THE SUPREME COURT OF THE       )
  )          No. SC 420 of 1999
AUSTRALIAN CAPITAL TERRITORY    )

ON APPEAL FROM THE MASTER

BETWEEN:LISA DEAN
Plaintiff

AND:MORE THAN A MORSEL PTY LTD
ACN 052 406 505
Defendant

ORDER

Judge:  Miles CJ
Date:  27 September 2002
Place:  Canberra

THE COURT ORDERS THAT:

The defendant instruct its solicitors, Messrs Hunt and Hunt to produce to the solicitors for the plaintiff within 14 days the documents described in the notice to produce addressed to Messrs Hunt and Hunt dated 25 July 2002 at a time and place to be agreed between the solicitors, and in the absence of agreement, to be determined by the Master on two days notice to either party.

Costs of this application be reserved to the trial.

This is an appeal from an interlocutory judgment of the Master dismissing an application made on notice of motion by the appellant (the plaintiff) which sought an order as follows:

“That the Defendant produce for the Plaintiff’s inspection the documents specified in the Plaintiff’s notice to produce documents at a place and time, and in a manner, that the Court thinks fit;”

The notice of motion is addressed to “the Defendant and GIO Workers Compensation by their solicitors Hunt & Hunt”.

The notice of motion was dated 5 August 2002. It does not appear to be supported by an affidavit.

It appears that a bundle or file of documents entitled Masters Copy Documents was filed by the plaintiff’s solicitor on 22 July 2002. I am not aware of the authority of the registry to accept such bundles for filing. However, it appears to have been before the Master in the nature of an exhibit, it was before me on the appeal and it may be a useful source of copies of documents relevant to the appeal.

The notice to produce, specifying the documents which the plaintiff wanted produced was dated 25 July 2002 and was addressed to “Hunt & Hunt Lawyers” at…

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: [2002] ACTSC 101
Decision Date

CaseChat Overview and Summary

The case of Dean v More Than a Morsel Pty Ltd [2002] ACTSC 101 was heard in the Supreme Court of the Australian Capital Territory. The plaintiff, Lisa Dean, sought an order for the defendant to produce certain documents for inspection. These documents were identified in a notice to produce, addressed to the defendant's solicitors, Hunt & Hunt, and were specified in a report by Dr. George Hession. The defendant claimed legal professional privilege over these documents. The Master had dismissed the plaintiff's application for production, ruling that privilege had not been waived.

The legal issues before the court were twofold: the source of the power to make the order for production and whether the service of Dr. Hession's report had resulted in a waiver of legal professional privilege. The court found that the power to make the order derived from Order 34B of the Rules of Court, which pertains to non-party production. It was also necessary to determine whether the service of Dr. Hession's report, which referenced other documents, implied a waiver of privilege for those documents or if fairness necessitated such a waiver.

In its reasoning, the court noted that the principle of fairness was paramount in determining whether privilege should be waived. The court held that the service of Dr. Hession's report, which had been served in compliance with Order 39 rule 46, carried with it an implied disclosure of the documents listed in the notice to produce, or alternatively, fairness required the waiver of privilege over those documents. The Master's decision was incorrect in focusing solely on whether the disclosure was made under compulsion. The court concluded that the privilege had been waived and ordered the defendant to produce the specified documents within 14 days.

The final orders of the court mandated that the defendant instruct its solicitors to produce the specified documents within 14 days and that the costs of the application be reserved for the trial. This ruling emphasized the importance of considering fairness in determining the waiver of legal professional privilege and highlighted the significance of the Rules of Court in shaping procedural outcomes.

Orders