Doric Contractors Pty Ltd v Garside [No 2] - [2018] WASC 365

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS

CITATION:   DORIC CONTRACTORS PTY LTD -v- GARSIDE [No 2] [2018] WASC 365
CORAM:   LE MIERE J
HEARD:   22 OCTOBER 2018
DELIVERED          :   27 NOVEMBER 2018
FILE NO/S:   CIV 1448 of 2014
BETWEEN:   DORIC GROUP HOLDINGS PTY LTD
First Plaintiff

DORIC CONTRACTORS PTY LTD
Second Plaintiff

AND

GARY DESMOND GARSIDE
First Defendant

TERRY JAMES PILBEAM
Second Defendant

ANDREW JAMES FATIN
Third Defendant

GREGORY LINTON ALLEN
Fourth Defendant

ROBERT LINDSAY SHIRLEY
Fifth Defendant

Catchwords:

Procedure - Production and inspection - Legal professional privilege - Whether communications are of a confidential character - Whether privilege has been impliedly waived - Issue waiver - Defendants' application dismissed - Turns on own facts

Legislation:

Competition and Consumer Act 2010 (Cth)
Corporations Act 2001 (Cth), s 553E
Fair Trading Act 1987 (WA)
Rules of the Supreme Court 1971 (WA), O 26 r 9(2)
Sale of Land Act 1970 (WA), s 13
Strata Titles Act 1985 (WA), s 70
Trade Practices Act 1974 (Cth)

Result:

Defendants' application for inspection of documents dismissed

Category: B

Representation:

Counsel:

First Plaintiff	:	Mr P Mendelow
Second Plaintiff	:	Mr P Mendelow
First Defendant	:	No appearance
Second Defendant	:	No appearance
Third Defendant	:	Mr M C Hotchkin
Fourth Defendant	:	Mr M C Hotchkin
Fifth Defendant	:	Mr M C Hotchkin

Solicitors:

First Plaintiff	:	Jackson McDonald
Second Plaintiff	:	Jackson McDonald
First Defendant	:	No appearance
Second Defendant	:	No appearance
Third Defendant	:	Hotchkin Hanly Lawyers
Fourth Defendant	:	Hotchkin Hanly Lawyers
Fifth Defendant	:	Hotchkin Hanly Lawyers

Case(s) referred to in decision(s):

Chen v City Convenience Leasing Pty Ltd [2005] NSWCA 297
DSE (Holdings) Pty Ltd v Intertan Inc (2003) 127 FCR 499
Macquarie Bank Ltd v Arup Pty Ltd [2016] FCAFC 117
Mann v Carnell (1999) 201 CLR 1
Vic Hotel Pty Ltd v DC Payments Australasia Pty Ltd (2015) 321 ALR 191
Viterra Malt Pty Ltd v Cargill Australia Ltd [2018] VSCA 118

LE MIERE J:

Summary

The third, fourth and fifth defendants have applied for an order, pursuant to O 26 r 9(2) of the Rules of the Supreme Court 1971 (WA), that the plaintiffs produce to those defendants for inspection the documents listed in the schedule annexed to the affidavit of Andrew James Fatin sworn 18 May 2018.
For the reasons which follow the application should be dismissed.

The action

This action concerns the development of units in North Fremantle. In January 2006 Northbank Bridges Pty Ltd (NBB) was incorporated to undertake the development. The development was marketed as the Rivershores Apartment Complex. The development was to sell the apartments 'off the plan', that is to sell apartments that were yet to be built. For this purpose NBB entered into contracts with purchasers which provided for the payment of a deposit, payments at various stages and a lump sum payment on completion (the pre‑sales contracts).
NBB lacked the financing necessary to complete the project. In February 2009 the first defendant (Mr Garside),…

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: [2018] WASC 365
Decision Date: 27 NOVEMBER 2018

CaseChat Overview and Summary

The case between Doric Contractors Pty Ltd and Garside was heard by the Supreme Court of Queensland. The dispute involved the production and inspection of documents, with a particular focus on communications protected by legal professional privilege. The primary question was whether these communications were of a confidential nature and whether the privilege had been waived, either expressly or impliedly, by the parties involved. Doric Contractors sought to inspect certain documents they believed were privileged, but Garside argued that the privilege had been lost, necessitating the inspection.

The legal issues before the court included determining the nature and scope of legal professional privilege, examining whether any waiver of this privilege had occurred, and assessing the relevance of the documents in question to the proceedings. The court had to consider whether the privilege was applicable and whether any actions by the parties could be construed as a waiver of that privilege. The court also needed to address the issue of whether the defendants had impliedly waived their privilege by raising certain arguments during the proceedings.

The court found that the communications in question were indeed of a confidential character, thereby qualifying for legal professional privilege. The court further determined that there was no evidence of an express waiver of privilege. Regarding the implied waiver, the court held that the defendants had not impliedly waived their privilege by the manner in which they argued their case. The court emphasised that the question of implied waiver turned on the specific facts of the case, and the arguments presented by the defendants did not constitute such a waiver. Consequently, the application by the defendants was dismissed.

The court ordered that the inspection of the documents in question was not permissible due to the protection afforded by legal professional privilege. The decision underscored the importance of maintaining the confidentiality of privileged communications and highlighted the need for careful consideration when determining whether a waiver of privilege has occurred. The court's ruling reinforced the principle that privilege issues should be assessed on a case-by-case basis, with a focus on the specific circumstances and actions of the parties involved.

Orders