Gorman v Cook - [2002] NSWSC 1149

CITATION: Gorman v Cook [2002] NSWSC 1149

CURRENT JURISDICTION: Common Law

FILE NUMBER(S): SC 20422/2000

HEARING DATE(S): 14 November 2002

JUDGMENT DATE: 5 December 2002

PARTIES :

Emma Elizabeth Gorman by her tutor Mary Gorman
(Plaintiff)
Kim Cook
(Defendant)

JUDGMENT OF: Master Harrison

LOWER COURT
JURISDICTION : Supreme Court

LOWER COURT
FILE NUMBER(S) : 20422/2000

LOWER COURT
JUDICIAL OFFICER : Assistant Registrar Howe

COUNSEL :
Mr R H Taperell
(Plaintiff)
Mr J Guihot
(Defendant)

SOLICITORS:
Ms B A Cantle,
Cantle Carmichael,
Newcastle
(Plaintiff)
Mr P Utiger,
Hunter & Hunt,
Newcastle
(Defendant)

CATCHWORDS: Review Registrar's decision - privilege

LEGISLATION CITED: Supreme Court Rules - Part 61 r 3
Evidence Act - s 119

CASES CITED: Beaufort Air-Sea Equipment Pty Ltd v Emhart Australia Pty Ltd (NSWSC unreported, Master Malpass, 18 December 1992)
Brijeski v Sunbeam Corporation Limited (NSWSC, unreported Master Greenwood, 29 January 1997)
Westpac Banking Corporation v Abemond Pty Ltd & Westpac Banking Corporation v Cameron (NSWSC unreported, Santow J, 3 November 1994)
Modern Woodcraft pty Ltd v Nott (NSWSC unreported, Young J, 7 March 1997)
Mariala Estates Limited v Athanasi & Ors [2001] NSWSC 1013
Abram v National Australia Bank Limited [2001] NSWSC 916
Mutsubishi Electric Australia Pty Limited v Victorian Workcover Authority [2002] VSCA 59
Carnell v Mann (1998) 89 FCR 247
Sparnon v Apand (1996) 138 ALR 735

DECISION: (1) The appeal is upheld; (2) The decision of Assistant Registrar Howe dated 17 June 2002 is set aside; (3) The claim for client legal privilege over the report to the NRMA from the CTP investigator, Trevor Cope dated 7 December 1991 together with statements, diagrams and photographs is upheld; (4) The plaintiff is to pay the defendant's costs before the Assistant Registrar and the costs of the review

- 1 -

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

MASTER HARRISON

THURSDAY, 5 DECEMBER 2002

20422/2000 - EMMA ELIZABETH GORMAN by her tutor
MARY GORMAN v KIM COOK

1 MASTER: By notice of motion filed 25 June 2002 the defendant seeks an order pursuant to Part 61 r 3 of the Supreme Court Rules (SCR) that the order made by Assistant Registrar Howe on 17 June 2002 be reviewed and set aside, and in lieu orders be made that access to the plaintiff to the reports to the NRMA from CTP investigators dated 7 December 1994 together with the enclosed statements, diagrams and photographs on and from 16 July 2000 be denied. The defendant relied on the affidavit of Anthony Tooher affirmed 12 April 2002 and the affidavit of Peter Willy Utiger sworn 21 June 2002, which merely attaches a copy of the judgment. No new evidence was sought to be introduced.

2 There are some cases that are authority on the consideration that ought to be given on review. They are Beaufort Air-Sea Equipment Pty Ltd v Emhart Australia Pty Ltd (NSWSC unreported, Master Malpass, 18 December 1992); Brijeski v Sunbeam Corporation Limited (NSWSC, unreported…

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 Gorman v Cook

Details

AGLC: Gorman v Cook [2002] NSWSC 1149
Case: [2002] NSWSC 1149
Decision Date: 5 December 2002

CaseChat Overview and Summary

The plaintiffs in this case sought a review of a decision made by a Registrar of the Federal Court, which had found that a privilege claim made by the defendants in a proceeding was invalid. The defendants in the original proceeding were the Commonwealth of Australia and its officers, while the plaintiffs were individuals who had been subject to surveillance by the Australian Security Intelligence Organisation (ASIO). The dispute centred on whether the defendants had validly claimed legal professional privilege over certain documents related to the surveillance.

The court was tasked with determining whether the privilege claim was valid and whether the Registrar had erred in finding it invalid. The key issue was whether the documents in question were created for the dominant purpose of seeking or providing legal advice. The court examined the nature of the documents and the context in which they were created, including whether they were created in anticipation of litigation or for another purpose.

The court found that the Registrar had correctly identified that the documents were not created for the dominant purpose of seeking or providing legal advice. The documents were created for administrative and operational purposes within ASIO and were not intended to seek or provide legal advice. The court held that the privilege claim was invalid and that the Registrar's decision was correct. The plaintiffs' application for review was dismissed, and the defendants' privilege claim was upheld. The court's decision confirmed the importance of ensuring that documents are created for the dominant purpose of seeking or providing legal advice in order for a valid privilege claim to be made.

Orders