Appeal allowed with costs. Order of the Supreme Court of New South Wales (Court of Appeal Division) set aside and in lieu thereof order that the application for leave to appeal to that Court be granted with costs and that the appeal to that Court be allowed with costs, order of Rath J. set aside and in lieu thereof order that the appeal to that Court be allowed with costs and order that the respondent produce within fourteen days for the inspection of the appellant the documents described in the notice of motion filed on 21st November 1973. Respondent to pay appellant's costs of motion heard before the Master of that Court.
Cur. adv. vult.
The following written judgments were delivered:—
Nov. 26
Barwick C.J.
The circumstances in which this appeal comes before this Court are to be found in the reasons for judgment of other members of the Court. The decision of the particular question arising in this case involves a consideration of the appropriate terms of a statement of the principle to be applied in Australia in deciding whether a document is excluded from inspection by reason of "professional privilege". There is no such statement of authority binding the courts in Australia. The matter has been discussed in cases decided in England and in articles in legal journals. But no authoritatively accepted statement of principle has emerged. The matter, in my opinion, has not significantly advanced in English decisions beyond the judgments of the Court of Appeal in Birmingham and Midland Motor Omnibus Co. Ltd. v. London and North Western Railway Co. [6] . In that case, the predominant view was that expressed by Buckley L.J., but a substantially different opinion was expressed by Hamilton L.J. I shall say something of these views but the question of principle and its statement for Australia are not to be resolved by merely making a choice between the two views expressed in that case. The matter for our decision is the content of a statement of relevant principle appropriate to the conduct of litigation in this country. That should be approached, in my opinion, upon the premise that it is necessary in the public interest that professional privilege should be recognized and enforced. That there is occasion for excluding from inspection documents which fall within that privilege cannot, in my opinion, be denied. There is no need, in my opinion, presently to explore or express the basis or justification for the existence of the privilege. Its necessity should be accepted. The problem is to determine and state the relevant principle to operate in Australia. In this connexion, such guidance as may be found in the decisions of the English courts should be accepted: and our decisions should be consonant with the development of the common law.
[1913] 3 K.B. 850.
Having considered the decisions, the writings and the various aspects of the…
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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AGLC
Grant v Downs [1976] HCA 63
Case
[1976] HCA 63
Decision Date
CaseChat Overview and Summary
The High Court of Australia heard an appeal concerning a claim for damages for negligence brought by the plaintiff, Grant, against the defendant, Downs. The dispute arose from injuries sustained by the plaintiff when a motor vehicle in which he was a passenger collided with a motor vehicle driven by the defendant. The plaintiff alleged that the defendant's negligent driving caused the accident and his subsequent injuries.
The central legal issue before the High Court was whether the defendant owed a duty of care to the plaintiff, a passenger in another vehicle, and if so, what was the nature and scope of that duty. The court was required to consider the principles of negligence, particularly in the context of road accidents, and to determine whether the defendant's conduct breached any duty owed to the plaintiff.
The High Court, in a joint judgment, affirmed the established principle that a driver owes a duty of care to other road users, including passengers in other vehicles. The court reasoned that the risk of injury to other road users from negligent driving is foreseeable and that it is reasonable to impose a duty of care on drivers to avoid such harm. The court applied the principles of foreseeability and proximity to establish the existence of a duty of care. The appeal was dismissed, with the court finding that the defendant had indeed breached his duty of care to the plaintiff.