Dubbo City Council v Barrett - [2003] NSWCA 267

CITATION: Dubbo City Council v Patrick Joseph Barrett [2003] NSWCA 267

HEARING DATE(S): 9 September 2003

JUDGMENT DATE:
24 September 2003

JUDGMENT OF: Tobias JA at 1; Young CJ in Eq at 2; Davies AJA at 24

DECISION: Appeal dismissed with costs

CATCHWORDS: The respondent was injured at Dubbo cattle saleyards, which are operated by the appellant. He commenced an action against his employers, Elders and the Council. The respondent and Elders settled. The appellant then called for production of the medical reports served by Elders on the respondent. The Plaintiff claimed legal privilege and would only produce them if ordered to do so by the Court. The trial judge held that the documents were privileged. - EVIDENCE - ss 121, 122 Evidence Act 1995 - privilege - whether privilege waived when medical expert reports served - when is privilege waived? Obligations under SCR Pt 36(13) and (13A) - ND

LEGISLATION CITED: Evidence Act 1995 ss121, 122
District Court Rules
Supreme Court Rules 1970 - Part 36 r 13 and r 13A(3)

CASES CITED: Thomason v Campbelltown MC (1939) 39 SR (NSW) 347
Mann v Carnell (1999) 201 CLR 1
Esso Australia Resources Ltd v Commissioner of Taxation (1999) 201 CLR 49
Akins v Abigroup Ltd (1998) 43 NSWLR 539
The Bell Group Ltd v Westpac Banking Corporation (1998) 86 FCR 215
Sevic v Roarty (1998) 44 NSWLR 287
Home Office v Harmann (1983) 1 AC 280
In re Margetson and Jones (1897) 2 Ch 314
Barristers' Board of Western Australia v Tranter Corp Pty Ltd (1976) WAR 65
Austress Freyssinet Pty Ltd v Marlin International Pty Ltd [2002] NSWSC 958

PARTIES :
Dubbo City Council
Patrick Joseph Barrett

FILE NUMBER(S): CA 40511/03

COUNSEL: C - R Sheldon
1R - M J Cranitch SC / M Inglis
2R - P Morris

SOLICITORS: C - Phillips Fox
1R - Commins Hendriks
2R - Moray & Agnew

LOWER COURTJURISDICTION: Supreme Court

LOWER COURT FILE NUMBER(S): SC 20313/02

LOWER COURT
JUDICIAL OFFICER : Newman ADCJ

CA 40511/03

TOBIAS JA
YOUNG CJ in EQ
DAVIES AJA
Wednesday 24 September 2003

DUBBO CITY COUNCIL v PATRICK JOSEPH BARRETT

1 TOBIAS JA: I agree with Young CJ in Eq.

2 YOUNG CJ in EQ: This is an appeal pursuant to leave granted at the end of a concurrent hearing from an interlocutory judgment of Acting Justice Newman. In that judgment his Honour upheld a claim of privilege made by the second defendant, Elders Limited ("Elders") when called upon by counsel for the Dubbo City Council ("the Council") to produce medical reports which it had obtained for the purposes of defending a claim for damages made against it by the plaintiff/1st respondent, Mr Barrett.

3 On the appeal Mr R Sheldon of counsel appeared for the Council, Mr M Cranitch SC and Mr M Inglis appeared for the plaintiff/1st respondent and Mr P Morris of counsel for Elders, the 2nd respondent.

4 The background of the decision is that there was an accident at Dubbo cattle saleyards…

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: [2003] NSWCA 267
Decision Date: 24 September 2003

CaseChat Overview and Summary

Dubbo City Council (the appellant) appealed to the Court of Appeal of the Supreme Court of New South Wales against a decision of a trial judge concerning the production of medical reports. The dispute arose from an injury sustained by the respondent at the Dubbo cattle saleyards, which are operated by the appellant. The respondent had commenced proceedings against his employers, Elders, and the appellant. While the respondent and Elders reached a settlement, the appellant sought production of medical expert reports that Elders had served on the respondent. The respondent resisted production, claiming legal professional privilege, and only agreed to produce them if ordered by the court.

The central legal issue before the Court of Appeal was whether the respondent had waived legal professional privilege over the medical expert reports by serving them on Elders, his co-defendant. The court was required to consider the circumstances under which privilege is waived, particularly in light of the Evidence Act 1995 (NSW) and relevant court rules concerning the disclosure of expert evidence.

The Court of Appeal held that the service of the medical expert reports by the respondent on Elders did not constitute a waiver of legal professional privilege. The court reasoned that the reports were prepared for the dominant purpose of enabling the respondent to conduct litigation and obtain legal advice. Serving these reports on a co-defendant in the context of settlement negotiations did not, in itself, amount to an admission or disclosure that would waive the privilege. The court applied the principles of legal professional privilege as established under the Evidence Act 1995, focusing on the purpose for which the documents were created and the nature of their subsequent disclosure.

The appeal was dismissed, and the appellant was ordered to pay the costs of the appeal.

Orders

Orders of the court

Appeal dismissed with costs

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	Dubbo City Council v Patrick Joseph Barrett [2003] NSWCA 267
HEARING DATE(S):	9 September 2003
JUDGMENT DATE:	24 September 2003
JUDGMENT OF:	Tobias JA at 1; Young CJ in Eq at 2; Davies AJA at 24
DECISION:	Appeal dismissed with costs
CATCHWORDS:	The respondent was injured at Dubbo cattle saleyards, which are operated by the appellant. He commenced an action against his employers, Elders and the Council. The respondent and Elders settled. The appellant then called for production of the medical reports served by Elders on the respondent. The Plaintiff claimed legal privilege and would only produce them if ordered to do so by the Court. The trial judge held that the documents were privileged. - EVIDENCE - ss 121, 122 Evidence Act 1995 - privilege - whether privilege waived when medical expert reports served - when is privilege waived? Obligations under SCR Pt 36(13) and (13A) - ND
LEGISLATION CITED:	Evidence Act 1995 ss121, 122 District Court Rules Supreme Court Rules 1970 - Part 36 r 13 and r 13A(3)
CASES CITED:	Thomason v Campbelltown MC (1939) 39 SR (NSW) 347 Mann v Carnell (1999) 201 CLR 1 Esso Australia Resources Ltd v Commissioner of Taxation (1999) 201 CLR 49 Akins v Abigroup Ltd (1998) 43 NSWLR 539 The Bell Group Ltd v Westpac Banking Corporation (1998) 86 FCR 215 Sevic v Roarty (1998) 44 NSWLR 287 Home Office v Harmann (1983) 1 AC 280 In re Margetson and Jones (1897) 2 Ch 314 Barristers' Board of Western Australia v Tranter Corp Pty Ltd (1976) WAR 65 Austress Freyssinet Pty Ltd v Marlin International Pty Ltd [2002] NSWSC 958
PARTIES :	Dubbo City Council Patrick Joseph Barrett
FILE NUMBER(S):	CA 40511/03
COUNSEL:	C - R Sheldon 1R - M J Cranitch SC / M Inglis 2R - P Morris
SOLICITORS:	C - Phillips Fox 1R - Commins Hendriks 2R - Moray & Agnew

LOWER COURTJURISDICTION:	Supreme Court
LOWER COURT FILE NUMBER(S):	SC 20313/02
LOWER COURT JUDICIAL OFFICER :	Newman ADCJ