JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CHAMBERS
LOCATION: PERTH
CITATION: DUNMALL -v- O'SULLIVAN & ORS [2010] WADC 76
CORAM: PRINCIPAL REGISTRAR GETHING
HEARD: 22 APRIL 2010
DELIVERED : 26 MAY 2010
FILE NO/S: CIV 232 of 2006
BETWEEN: GEOFFREY DUNMALL
Plaintiff
AND
MARY O'SULLIVAN
First DefendantTERRENCE CONSTRUCTIONS PTY LTD
Second DefendantSHIRE OF MURRAY
Third Defendant
Catchwords:
Discovery - Inspection - Legal professional privilege - Two purposes, neither dominant, both legal
Legislation:
Nil
Result:
Application for production denied
Privilege upheld
Representation:
Counsel:
Plaintiff: Mr B P Wheatley
First Defendant : Ms A K Farnworth
Second Defendant : No appearance
Third Defendant : No appearance
Solicitors:
Plaintiff: Mossensons
First Defendant : DLA Phillips Fox
Second Defendant : Not applicable
Third Defendant : John Eller
Case(s) referred to in judgment(s):
Attorney-General (NT) v Maurice (1986) 161 CLR 475
Australian Rugby Union Ltd v Hospitality Group Pty Ltd (1999) 165 ALR 253
AWB Ltd v Cole (2006) 152 FCR 382
Baker v Campbell (1983) 153 CLR 52
Bond v West Australian Newspapers Ltd [No 3] [2009] WASC 129
Boyes v Colins (2000) 23 WAR 123
Daniels Corporation International Pty Ltd v Australian Competition & Consumer Commission (2002) 213 CLR 543
Federal Commissioner of Taxation v Pratt Holdings Pty Ltd (2005) 225 ALR 266
Goldberg v Ng (1995) 185 CLR 83
Grant v Downs (1976) 135 CLR 674
GSA Industries (Aust) Pty Ltd v Constable [2002] 2 Qd R 146
Hoad v Nationwide News Pty Ltd (1998) 19 WAR 468
Korean Air Lines Co Ltd v Australian Competition and Consumer Commission (No 2) [2008] FCA 44
Leader Westernport Printing Pty Ltd (t/a Waverley Offset Publishing Group) v IPD Instant & Duplicating Pty Ltd (1988) 5 ANZ Insurance Cases [60‑856]
Nickmar Pty Ltd v Preservatrice Skandia Insurance Ltd (1985) 3 NSWLR 44
Osland v Secretary, Department of Justice (2008) 82 ALJR 1288
Petersen v Moloney (1951) 84 CLR 91
Pratt Holdings Pty Ltd v Federal Commissioner of Taxation (2004) 136 FCR 357
Quality Publications Australia Pty Ltd v Commissioner of Taxation [2009] FCA 1293
Re: Southland Coal Pty Ltd (Receivers and Managers appointed) (in liq) (2006) 203 FLR
Spark v Iama Ltd [2000] WASC 150
Strzelecki Holdings Pty Ltd v Cable Sands Pty Ltd [No 2] [2009] WASC 150
Techfarm Pty Ltd v AXA Insurance Australia & Anor [2004] WASC 166
Techfarm Pty Ltd v AXA Insurance Australia Ltd [2005] WASCA 151
Trade Practices Commission v Sterling (1979) 36 FLR 244
Wheeler v Le Marchant (1881) 17 Ch D 675
Woodward v Shellab Pty Ltd (t/as Shellabears) & Ors [2009] WADC 74
PRINCIPAL REGISTRAR GETHING: In this application, the plaintiff has sought production of two expert's reports obtained by the first defendant, as well as some photographs of the accident scene the subject of the action. The first defendant resists production on the ground of legal professional privilege. The plaintiff further asserts that the…
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- AGLC
- Dunmall v O'Sullivan [2010] WADC 76
- Case
- [2010] WADC 76
- Decision Date
CaseChat Overview and Summary
The primary legal issue before the court was whether the documents in question were protected by legal professional privilege. The court had to consider the principles governing legal professional privilege, including the requirement that the privilege is claimed for the dominant purpose of giving or obtaining legal advice or the provision of legal services. The court also had to consider the onus of proof regarding the claim of privilege.
The court held that legal professional privilege is a substantive rule of law that can be invoked to resist the disclosure of documents that reveal confidential communications between a client and their lawyer. The court noted that privilege can be claimed for two purposes, neither of which needs to be dominant, but both must be legal. The court also held that the onus of proof regarding the claim of privilege lies with the party making the claim, but this can be discharged by evidence of the circumstances and context in which the communications occurred or the documents were created. The court found that the plaintiff had not discharged the onus of proof and that the documents were protected by legal professional privilege.
The court's final order was that the defendant was not required to produce the documents in question, as they were protected by legal professional privilege.
Orders
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
"Legal professional privilege is a rule of substantive law which may be availed of by a person to resist the giving of information or the production of documents which would reveal communications between a client and his or her lawyer made for the dominant purpose of giving or obtaining legal advice or the provision of legal services, including representation in legal proceedings": Daniels Corporation International Pty Ltd v Australian Competition & Consumer Commission (2002) 213 CLR 543 at 552 [9]; Esso (supra) at 73 [61]; Strzelecki Holdings Pty Ltd v Cable Sands Pty Ltd[No 2] [2009] WASC 150, at [15]. In Esso, the majority, Gleeson CJ, Gaudron and Gummow JJ, at 68 – 69, 73 ([46], [61]) approved the following statement of principle by Barwick CJ in Grant v Downs (supra) at 677:"[A] document which was produced or brought into existence either with the dominant purpose of its author, or of the person or authority under whose direction, whether particular or general, it was produced or brought into existence, of using it or its contents in order to obtain legal advice or to conduct or aid in the conduct of litigation, at the time of its production in reasonable prospect, should be privileged and excluded from inspection." The issue of the onus of establishing that the communication falls within the privilege was considered by Beech J in Strzelecki (supra) in the following terms (at [16] - [20]):"There is authority that the party claiming privilege bears the onus of establishing that the communication occurred, or the document was brought into existence, for the dominant purpose of giving or obtaining legal advice: AWB v Cole [44(1)]; Seven Network Ltd v News Ltd [2005] FCA 142 [7]. The defendant accepts that it bears this onus.However, the position as regards onus may not be so clear. There is authority that in an application under O 26 r 12 of the Rules of the Supreme Court 1971 (WA), the applicant bears at least an evidentiary onus to displace the claim to privilege: see CTC Resources NL v Australian Stock Exchange Ltd [2000] WASCA 19; (2000) 22 WAR 48 [33] - [35]; Brambles Holdings Ltd v WMC Engineering Services Pty Ltd (1995) 14 WAR 239, 246 - 247 (Owen J), cf 240 - 241 (Kennedy J) and 243 (Rowland J); Southern Equities Corporation Ltd v Western Australian Government Holdings Ltd (1993) 10 WAR 1, 5, 16, 22.In any event, I do not rest my decision on any question of onus. Assuming, favourably to the plaintiff, that the onus rests entirely on the defendant, for the reasons to be given I am satisfied that the claim to privilege is sustained.Any such onus on the defendant may be discharged by evidence as to the circumstances and context in which the communications occurred or the documents were brought into existence, or by evidence as to the purposes of the person who made the communication, authored the document or procured its creation. The onus might also be discharged by reference to the nature of the documents, supported by argument or submissions: Grant v Downs [1976] HCA 63; (1976) 135 CLR 674, 689; AWB v Cole [44(1)].A claim of privilege will not be established by a mere assertion, in general terms, that communications were undertaken for the purpose of obtaining or giving legal advice, without any statement as to the subject matter of the advice said to have been sought: see AWB v Cole [44(3)] and authorities there cited."