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GSA Industries (Aust) Pty Ltd v Constable

GSA Industries (Aust) Pty Ltd v Constable

Case [2001] QSC 180 15 June 2001

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SUPREME COURT OF QUEENSLAND

CITATION: Galway & Anor v. Constable & Ors [2001] QSC 180

PARTIES: TONY JAMES GALWAY
(applicant/fifth defendant)
AND
GSA INDUSTRIES (AUST) PTY LTD
ACN 004 784 301
(plaintiff)
v
GARY TREVOR CONSTABLE
(first defendant)
AND
KENNETH DANIEL KANNAR
(second defendant)
AND
TAMARA ANNA KANNAR
(third defendant)
AND
PHUNG GIA CHUC
(fourth defendant)

FILE NO/S: S5578 of 1999

DIVISION: Trial Division

PROCEEDING: Civil

ORIGINATING COURT: Brisbane

DELIVERED ON: 15 June 2001

DELIVERED AT: Brisbane

HEARING DATE: 28 May 2001

JUDGE: Holmes J

ORDER: Application for production dismissed

CATCHWORDS:
PROCEDURE – DISCOVERY AND INTERROGATORIES – PRODUCTION AND INSPECTION – GROUNDS FOR RESISTING PRODUCTION – LEGAL PROFESSIONAL PRIVILEGE – WHAT CONSTITUTES – FOR PURPOSES OF OR IN CONTEMPLATION OF LITIGATION
Report commissioned by “in-house” lawyer – wh legal professional privilege attached – wh dominant purpose in bringing report into existence was its use in contemplated

litigation or for legal advice – dominant purpose for legal advice therefore privileged

Uniform Civil Procedure Rules 1999

Alfred Crompton Amusement Machines Ltd v Customs and Excise Commissioners (No. 2) [1972] 2 QB 102
Attorney-General for the Northern Territory of Australia v Kearney (1985) 158 CLR 500
Australian Competition and Consumer Commission v Australian Safeway Stores Pty Ltd (1998) 81 FCR 526
Australian Hospital Care (Pindara) Pty Ltd and Anor v Duggan (No. 2) [1999] VSC 131
Australian Rugby Union Ltd v Hospitality Group Pty Ltd & Ors (1999) 165 ALR 253
Cataldi v Commissioner for Government Transport
[1969] 1 NSWR 561
Commissioner of Federal Police v Propend Finance Pty Ltd
(1997) 188 CLR 501
Di Pietrantonio v Austin Hospital - Heidelberg
[1958] VR 325
Electricity Trust of South Australia v Mitsubishi Australia Limited [1999] 57 SASR 48
Esso v Federal Commissioner of Taxation
(1991) 201 CLR 49
Glengallan Investments Pty Ltd & Ors v Arthur Andersen and Anor[2001] QCA 115
Gold Securities Australia Pty Ltd and Anor v Siebe PLC and Ors, Giles J, Supreme Court New South Wales, 31 October 1990 unreported
Grant v Downs (1976) 135 CLR 674
James v WorkCover Queensland [2000] QCA 507
Leader Westernport Printing Pty Ltd (t/a Waverley Offset Publishing Group) v IPD Instant and Duplicating Pty Ltd (1988) 5 ANZ Insurance Cases 60-856
McIlwraith McEacharn Operations Limited v C.E. Heath Underwriting and Insurance (Australia) Pty Ltd (No. 2)
[1995] 1 Qd R 363
Morlea Professional Services Pty Ltd v South Brisbane Insurance Co Ltd, Foster J, 27 September 1984, unreported
National Employers Mutual General Insurance Association v Waind (1979) 141 CLR 648
Nickmar Pty Ltd and Another v Preservatrice Skandia Insurance Ltd (1985) 3 NSWLR 44
Ritz Hotel Ltd v Charles of the Ritz Ltd
(1987) 14 NSWLR 100
Seabrook v British Transport Commission [1959] 1 WLR 509
Sparnon and Others v Apand Pty Ltd and Others
(1996) 68 FCR 322
Trade Practices Commission v Sterling
(1978) 36 FLR 244
Waterford v The Commonwealth (1987) 163 CLR 54
Waugh v British Railways Board [1980] AC 521
Wheeler v Le Marchant [1881] 17 Ch…

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 GSA Industries (Aust) Pty Ltd v Constable

Details

AGLC: GSA Industries (Aust) Pty Ltd v Constable [2001] QSC 180
Case: [2001] QSC 180
Decision Date: 15 June 2001

CaseChat Overview and Summary

The case of GSA Industries (Aust) Pty Ltd v Constable involved the issue of legal professional privilege concerning a report commissioned by an in-house lawyer. The dispute centred on whether the report was protected by legal professional privilege, and if so, whether it should be produced for inspection. The case was heard and determined by the Supreme Court of Victoria.

The primary legal issue that the court had to address was whether the report commissioned by the in-house lawyer was subject to legal professional privilege. Specifically, the court had to determine if the dominant purpose of the report was for the provision of legal advice or in contemplation of litigation. The court also had to consider whether the report was prepared for a purpose ancillary to the provision of legal advice or in the contemplation of litigation.

The court found that the dominant purpose of the report was for the provision of legal advice. Since the dominant purpose of the report was to provide legal advice, the report was protected by legal professional privilege. The court held that the report was therefore not required to be produced for inspection. The court dismissed the application for production of the report, finding that it was protected by legal professional privilege.

Orders

Orders of the court

Application for production dismissed

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.

Citations

AGLC Citation

GSA Industries (Aust) Pty Ltd v Constable [2001] QSC 180

Most Recent Citation

Samenic Limited v APM Group (Aust) Pty Ltd [2011] VSC 194

Cases citing this decision · 16 of 16 shown

Sino Iron Pty Ltd v Mineralogy Pty Ltd [No 9]
[2025] WASC 126 Para 1

…se it is the communication and not the document that is the subject of the claim of privilege.[26] [25] AWB Ltd v Cole [110]. [26] Galway v Constable [2001] QSC 180; [2002] 2 Qd R 146 [28] (Holmes J).…
Hongkong Xinhe International Investment Company Ltd v Bullseye Mining Ltd [No 5]
[2022] WASC 245 Para 4

…t the document that is the subject of the claim of privilege.[9] [7] Grant v Downs 677 (Barwick CJ). [8] AWB Ltd v Cole [111]. [9] Galway v Constable [2001] QSC 180; [2002] 2 Qd R 146 [35] (Holmes J).…
Gibbins v Bayside Council
[2020] NSWSC 1795

…ker, or of the person who authorised or procured it, is not necessarily conclusive of that purpose: see GSA Industries (Aust) Pty Ltd v Constable [2001] QSC 180; [2002] 2 Qd R 146 (‘ GSA Industries’ ) at 153 [28] per Holmes J; Australian Competition and Consumer Commission v Australian Safeway Stores Pty Ltd (199…
TEC Hedland Pty Ltd v The Pilbara Infrastructure Pty Ltd
[2020] WASC 364 Para 7

…se it is the communication and not the document that is the subject of the claim of privilege.[27] [26] AWB Ltd v Cole [110]. [27] Galway v Constable [2001] QSC 180; [2002] 2 Qd R 146 [28] (Holmes J).…
El Rashidy and El Rashidy and Anor
[2019] FamCA 402 Para 6

…thorised or procured it, is not necessarily conclusive of that purpose: see GSA Industries (Aust) Pty Ltd v Constable [2001] QSC 180; [2002] 2 Qd R 146 (‘ GSA Industries ’) at 153 [28] per Holmes J; Australian Competition and Consumer Commission v Australian Safeway Stores Pty Ltd (1998) 81 FCR 526 at 545 per Gol…
Graham Stafford (applicant) v Information Commissioner (First Respondent) and Queensland Police Service (Second Respondent)
[2019] QCATA 61 Para 1

…ion, the IC relied on the decision of Holmes J in [1] Decision of the IC dated 18 February 2016, [18]. Galway & Anor v Constable & Ors. [2] [2] [2001] QSC 180.…
Blenkinsop v Jeffrey Laurence Herbert as trustee of the Blenkinsop Family Trust [No 2]
[2017] WASC 47 Para 5

…to the purpose for which the document came into existence: Sparnon v Apand Pty Ltd (1996) 68 FCR 322, 328; GSA Industries (Aust) Pty Ltd v Constable [2001] QSC 180; [2002] 2 QdR 146, 153. In this case, however, it is the only evidence of purpose. On the basis of Mr Herbert's affidavit, no privilege attaches to t…
Von Stieglitz and Comcare (Compensation)
[2016] AATA 367 Para 17

…d the advice must be admitted to practice: see Dawson J in Waterford at 96; GSA Industries (Aust) Pty Ltd v Constable [2001] QSC 180 ; (2002) 2 Qd R 146 at 150; Glengallan Investments Pty Ltd v Arthur Andersen [2001] QCA 115 ; (2002) 1 Qd R 233 at 245. However, in Commonwealth v Vance [2005] ACTCA 35 ; (2005) 158…
Colefax v Department of Education and Communities
[2013] NSWADT 75

…yer who provided the advice must be admitted to practice: see Dawson J in Waterford at CLR 96; ALR 705; Galway v Constable [2002] 2 Qd R 146 at 150 ; [2001] QSC 180; Glengallan Investments Pty Ltd v Arthur Andersen [2002] 1 Qd R 233 at 245 ; [2001] QCA 115. However, in Commonwealth v Vance (2005) 158 ACTR 47 ; [2…
Aquila Coal Pty Ltd v Bowen Central Coal Pty Ltd
[2013] QSC 82

…ur Anderson & Anor (2001) QCA 115 Grant v Downs 135 CLR 674; [1976] HCA 63 GSA Industries (Aust) Pty Ltd v Constable [2002] 2 Qd R 146; [2001] QSC 180 Guns Limited & Ors v Alexander Maher & Ors (2008) VSC 464 Rich v Harrington (2007) 245 ALR 106; [2007] FCA 1987 Ritz Hotel Ltd v Charles of the Ritz Ltd (No 4) (19…
Tziolas v NSW Department of Education and Communities
[2012] NSWADT 69

…yer who provided the advice must be admitted to practice: see Dawson J in Waterford at CLR 96; ALR 705; Galway v Constable [2002] 2 Qd R 146 at 150 ; [2001] QSC 180; Glengallan Investments Pty Ltd v Arthur Andersen [2002] 1 Qd R 233 at 245 ; [2001] QCA 115. However, in Commonwealth v Vance (2005) 158 ACTR 47 ; [2…
Re Philip Morris Limited and Prime Minister
[2011] AATA 556

…ok Publishers Pty Limited [2002] FCA 1045 Grofam Pty Ltd v ANZ Banking Group (1993) 45 FCR 445; 117 ALR 669 GSA Industries (Aust) Pty Ltd v Constable [2001] QSC 180; [2002] 2 Qd R 146 Harris v Australian Broadcasting Corporation and Others (1983) 50 ALR 551; 5 ALD 545 Harris v Australian Broadcasting Commission […
McGuirk v NSW Police Force
[2011] NSWADT 155

…yer who provided the advice must be admitted to practice: see Dawson J in Waterford at CLR 96; ALR 705; Galway v Constable [2002] 2 Qd R 146 at 150 ; [2001] QSC 180; Glengallan Investments Pty Ltd v Arthur Andersen [2002] 1 Qd R 233 at 245 ; [2001] QCA 115. However, in Commonwealth v Vance (2005) 158 ACTR 47 ; [2…
Samenic Limited v APM Group (Aust) Pty Ltd
[2011] VSC 194 Para 1

…) 234 ALR 651 at [44]. [3](2004) 207 ALR 217. [4]59 ACSR 87 at [10]; [2006] NSWSC 899. [5]56 ACSR 487 at [60]; [2005] NSWCA 44. [6][2002] 2 Qd R 146; [2001] QSC 180. [7](2002) 4 VR 332 (CA). [8](1985) 3 NSWLR 44.…
Edwards and Secretary, Department of Health and Ageing
[2011] AATA 147

…o provided the advice must be admitted to practice: see Dawson J in Waterford at CLR 96; ALR 705; Galway v Constable [2002] 2 Qd R 146 at 150 ; [2001] QSC 180; Glengallan Investments Pty Ltd v Arthur Andersen [2002] 1 Qd R 233 at 245 ; [2001] QCA 115. However, in Commonwealth v Vance (2005) 158 ACTR 47 ; [2005] A…
Singapore Airlines v Sydney Airports Corporation
[2004] NSWSC 380

…ES CITED: Baker v Campbell (1983) 153 CLR 52 Mitsubishi Electric Australia Pty Ltd v Victorian WorkCover Authority (2002) 4 VR 332 Galway v Constable [2001] QSC 180 Australian Competition & Consumer Commission v Australian Safeway Stores Pty Ltd (1998) 81 FCR 526 Esso Australia Resources Ltd v Commissioner of Tax…

View all 16 citing cases →

Cases cited in this decision · 17 of 17 shown

Glengallan Investments Pty Ltd v Arthur Andersen
[2001] QCA 115 Para 1

…tably, that his communications, whether involving legal advice or not, could not attract privilege as the communications of a legal practitioner. [14][2001] QCA 115.…
James v WorkCover Queensland
[2000] QCA 507 Para 1

…its operation”[47]. By way of footnote his Honour observed that the boundaries of litigation privilege were “controversial”. [45][2000] QCA 507. [46]at para 21. [47]at para 46.…
Australian Rugby Union Ltd v Hospitality Group Pty Ltd
[2000] FCA 823

…an Safeway Stores Pty Ltd (1998) 81 FCR 526 Australian Hospital Care (Pindara) Pty Ltd and Anor v Duggan (No. 2) [1999] VSC 131 Australian Rugby Union Ltd v Hospitality Group Pty Ltd & Ors (1999) 165 ALR 253 Cataldi v Commissioner for Government Transport [1969] 1 NSWR 561 Commissioner of Federal Police v Propend Finance Pty Ltd (1997) 188 CLR 501 Di Pietrantonio v…
Esso Australia Resources Ltd v Federal Commissioner of Taxation
[1999] HCA 67 Para 1

…She pointed out that where two purposes were of equal weight, one could not be said to dominate the other. [22] Esso v Federal Commission of Taxation (1999) 201 CLR 49.at pp 77-78. [23](1996) 68 FCR 322 at pp 327-328.…
Australian Competition and Consumer Commission v Australian Safeway Stores Pty Ltd
[1998] FCA 1599 Para 1

…ning remains apposite to a dominant purpose test. [30] Australian Competition and Consumer Commission v Australian Safeway Stores Pty Ltd (1998) 81 FCR 526 at 545 ; Sparnon v Apand Pty Ltd (1996) 68 FCR 322 at p 328. [31] Commissioner of Australian Federal Police and Anor v Propend Finance Pty Limited & Ors (1997) 1…
Sparnon v Apand Pty Ltd
[1998] FCA 164 Para 1

…oses were of equal weight, one could not be said to dominate the other. [22] Esso v Federal Commission of Taxation (1999) 201 CLR 49.at pp 77-78. [23](1996) 68 FCR 322 at pp 327-328.…
Commissioner of Australian Federal Police v Propend Finance Pty Ltd
[1997] HCA 3 Para 1

…the communication of the report by PricewaterhouseCoopers to Mr Moratti be regarded as distinct and if so, was it capable of attracting privilege? [6](1997) 188 CLR 501 at pp 508, 515-516, 525, 543, 552, 568.…
Sparnon v Apand Pty Ltd
[1996] FCA 684 Para 1

…dominant purpose test. [30] Australian Competition and Consumer Commission v Australian Safeway Stores Pty Ltd (1998) 81 FCR 526 at 545 ; Sparnon v Apand Pty Ltd (1996) 68 FCR 322 at p 328. [31] Commissioner of Australian Federal Police and Anor v Propend Finance Pty Limited & Ors (1997) 188 CLR 501 per Brennan J at p 508. [32][…
Waterford v the Commonwealth
[1987] HCA 25 Para 1

…ivilege. It is to be noted, however, that the lawyer in that case was admitted to practice, albeit in another jurisdiction. [7](1985) 158 CLR 500. [8](1987) 163 CLR 54 at p 70. [9](1987) 14 NSWLR 100.…
Attorney-General (NT) v Kearney
[1985] HCA 60 Para 1

…g legal professional privilege. It is to be noted, however, that the lawyer in that case was admitted to practice, albeit in another jurisdiction. [7](1985) 158 CLR 500. [8](1987) 163 CLR 54 at p 70. [9](1987) 14 NSWLR 100.…
Trade Practices Commission v Sterling
[1979] FCA 59 Para 1

…ford v The Commonwealth (1987) 163 CLR 54 at p 61. See also Grant v Downs (1976) 135 CLR 674 at pp 688-689; Trade Practices Commission v Sterling (1978) 36 FLR 244 at p 247.…
National Employers' Mutual General Insurance Association Ltd v Waind
[1979] HCA 11 Para 1

…the dominant purpose test. Clearly co-existent purposes of equal weight will not suffice to meet the dominant purpose test. [24][1980] AC 521. [25](1979) 141 CLR 648.…
Grant v Downs
[1976] HCA 63 Para 1

…party asserting the privilege to establish the facts giving rise to it.[4] The Court is not bound by the parties’ assertions[5]. [4] Grant v Downs (1976) 135 CLR 674 at p 689; McIlwraith McEacharn Operations Limited v C.E. Heath Underwriting and Insurance (Australia) Pty Ltd (No. 2) [1995] 1 Qd R 363 at 371. [5] McI…
[1999] VSC 131
[1999] VSC 131 Para 1

…ch was independence. In that context, he isolated as a concern the absence of evidence that the lawyer in question held a practising certificate. [13][1999] VSC 131.…
[1980] AC 521
[1980] AC 521 Para 1

…le purpose test nor the dominant purpose test. Clearly co-existent purposes of equal weight will not suffice to meet the dominant purpose test. [24][1980] AC 521. [25](1979) 141 CLR 648.…
[1959] 1 WLR 509
[1959] 1 WLR 509 Para 1

…where the occurrence itself was likely to lead to litigation, without any actual indication that litigation was in fact pending. [40][1959] 1 WLR 509. [41][1959] 1 WLR 509 at p 529. [42][1969] 1 NSWR 561 at p 564. [43][1958] VR 325 at p 328.…
[1972] 2 QB 102
[1972] 2 QB 102 Para 1

…concerns behind the report [21]Such a procedure was endorsed in Alfred Crompton Amusement Machines Ltd v Customs and Excise Commissioners (No. 2) [1972] 2 QB 102 at p 129 cited with apparent approval by Mason and Wilson JJ in Waterford v The Commonwealth (1987) 163 CLR 54 at p 61. See also Grant v Downs (1976) 135…

Legislation cited in this decision · 1

Uniform Civil Procedure Rules 1999 (Qld)
1 mention (from Para 1)

CITATION:	Galway & Anor v. Constable & Ors [2001] QSC 180
PARTIES:	TONY JAMES GALWAY (applicant/fifth defendant) AND GSA INDUSTRIES (AUST) PTY LTD ACN 004 784 301 (plaintiff) v GARY TREVOR CONSTABLE (first defendant) AND KENNETH DANIEL KANNAR (second defendant) AND TAMARA ANNA KANNAR (third defendant) AND PHUNG GIA CHUC (fourth defendant)
FILE NO/S:	S5578 of 1999
DIVISION:	Trial Division
PROCEEDING:	Civil
ORIGINATING COURT:	Brisbane
DELIVERED ON:	15 June 2001
DELIVERED AT:	Brisbane
HEARING DATE:	28 May 2001
JUDGE:	Holmes J
ORDER:	Application for production dismissed
CATCHWORDS:	PROCEDURE – DISCOVERY AND INTERROGATORIES – PRODUCTION AND INSPECTION – GROUNDS FOR RESISTING PRODUCTION – LEGAL PROFESSIONAL PRIVILEGE – WHAT CONSTITUTES – FOR PURPOSES OF OR IN CONTEMPLATION OF LITIGATION Report commissioned by “in-house” lawyer – wh legal professional privilege attached – wh dominant purpose in bringing report into existence was its use in contemplated litigation or for legal advice – dominant purpose for legal advice therefore privileged Uniform Civil Procedure Rules 1999 Alfred Crompton Amusement Machines Ltd v Customs and Excise Commissioners (No. 2) [1972] 2 QB 102 Attorney-General for the Northern Territory of Australia v Kearney (1985) 158 CLR 500 Australian Competition and Consumer Commission v Australian Safeway Stores Pty Ltd (1998) 81 FCR 526 Australian Hospital Care (Pindara) Pty Ltd and Anor v Duggan (No. 2) [1999] VSC 131 Australian Rugby Union Ltd v Hospitality Group Pty Ltd & Ors (1999) 165 ALR 253 Cataldi v Commissioner for Government Transport [1969] 1 NSWR 561 Commissioner of Federal Police v Propend Finance Pty Ltd (1997) 188 CLR 501 Di Pietrantonio v Austin Hospital - Heidelberg [1958] VR 325 Electricity Trust of South Australia v Mitsubishi Australia Limited [1999] 57 SASR 48 Esso v Federal Commissioner of Taxation (1991) 201 CLR 49 Glengallan Investments Pty Ltd & Ors v Arthur Andersen and Anor[2001] QCA 115 Gold Securities Australia Pty Ltd and Anor v Siebe PLC and Ors, Giles J, Supreme Court New South Wales, 31 October 1990 unreported Grant v Downs (1976) 135 CLR 674 James v WorkCover Queensland [2000] QCA 507 Leader Westernport Printing Pty Ltd (t/a Waverley Offset Publishing Group) v IPD Instant and Duplicating Pty Ltd (1988) 5 ANZ Insurance Cases 60-856 McIlwraith McEacharn Operations Limited v C.E. Heath Underwriting and Insurance (Australia) Pty Ltd (No. 2) [1995] 1 Qd R 363 Morlea Professional Services Pty Ltd v South Brisbane Insurance Co Ltd, Foster J, 27 September 1984, unreported National Employers Mutual General Insurance Association v Waind (1979) 141 CLR 648 Nickmar Pty Ltd and Another v Preservatrice Skandia Insurance Ltd (1985) 3 NSWLR 44 Ritz Hotel Ltd v Charles of the Ritz Ltd (1987) 14 NSWLR 100 Seabrook v British Transport Commission [1959] 1 WLR 509 Sparnon and Others v Apand Pty Ltd and Others (1996) 68 FCR 322 Trade Practices Commission v Sterling (1978) 36 FLR 244 Waterford v The Commonwealth (1987) 163 CLR 54 Waugh v British Railways Board [1980] AC 521 Wheeler v Le Marchant [1881] 17 Ch…