HUGHES & ANOR -v- ST BARBARA MINES LTD & ANOR [2006] WASC 145

Jurisdiction:	SUPREME COURT OF WESTERN AUSTRALIA	Citation No:	[2006] WASC 145
Case No:	CIV:1913/2002	Heard:	20 JUNE 2006
Coram:	MASTER NEWNES	Delivered:	21/07/06
No of pages:	9	Judgment Part:	1 of 1
Result:	Order for inspection of documents
Category:	B
PDF Version

Parties:	BRYAN KEVIN HUGHES VINCENT ANTHONY SMITH ST BARBARA MINES LTD (ACN 009 165 066) ZYGOT LTD (ACN 009 115 664)
Catchwords:	Practice and procedure Inspection of documents Letters of instruction to expert witness Expert's reports disclosed Whether letters of instruction protected by legal professional privilege Turns on own facts
Legislation:	Nil
Case References:	Australian Securities & Investments Commission v Southcorp Ltd (2003) 46 ACSR 438 Collins Debden Pty Ltd v Cumberland Stationery Co Pty Ltd [2005] FCA 1194 Dingwall v The Commonwealth of Australia (1992) 39 FCR 521 Instant Colour Pty Ltd v Canon Australia Pty Ltd, unreported; Fed C of A; 30 October 1995 AttorneyGeneral for the Northern Territory v Maurice (1986) 69 ALR 31 Buttes Gas & Oil Co v Hammer (No 3) [1981] QB 223 Tirango Nominees Pty Ltd v Dairy Vale Foods Limited (No 2) (1998) 83 FCR 397 Trade Practices Commission v Arnotts Ltd (No 5) (1990) 21 FCR 324

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

IN CHAMBERS

CITATION : HUGHES & ANOR -v- ST BARBARA MINES LTD & ANOR [2006] WASC 145 CORAM : MASTER NEWNES HEARD : 20 JUNE 2006 DELIVERED : 21 JULY 2006 FILE NO/S : CIV 1913 of 2002 BETWEEN : BRYAN KEVIN HUGHES

VINCENT ANTHONY SMITH

Plaintiffs

AND

ST BARBARA MINES LTD (ACN 009 165 066)

First Defendant

ZYGOT LTD (ACN 009 115 664)

Second Defendant

Catchwords:

Practice and procedure - Inspection of documents - Letters of instruction to expert witness - Expert's reports disclosed - Whether letters of instruction protected by legal professional privilege - Turns on own facts

Legislation:

Nil

(Page 2)

Result:

Order for inspection of documents

Category: B

Representation:

Counsel:

Plaintiffs : Mr I R Freeman

First Defendant : Mr J A Thomson

Second Defendant : Mr J A Thomson

Solicitors:

Plaintiffs : Lavan Legal

First Defendant : Tottle Partners

Second Defendant : Tottle Partners

Case(s) referred to in judgment(s):

Australian Securities & Investments Commission v Southcorp Ltd (2003) 46 ACSR 438
Collins Debden Pty Ltd v Cumberland Stationery Co Pty Ltd [2005] FCA 1194
Dingwall v Commonwealth of Australia (1992) 39 FCR 521
Instant Colour Pty Ltd v Canon Australia Pty Ltd, unreported; Fed C of A; 30 October 1995

Case(s) also cited:

AttorneyGeneral for the Northern Territory v Maurice (1986) 69 ALR 31
Buttes Gas & Oil Co v Hammer (No 3) [1981] QB 223
Tirango Nominees Pty Ltd v Dairy Vale Foods Limited (No 2) (1998) 83 FCR 397
Trade Practices Commission v Arnotts Ltd (No 5) (1990) 21 FCR 324

(Page 3)

1 MASTER NEWNES: This is an application by the defendants for an order for inspection of two letters written…

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: [2006] WASC 145
Decision Date

CaseChat Overview and Summary

This case concerns an application by the defendants, St Barbara Mines Ltd and Zygo Ltd, for an order for inspection of two letters written by the plaintiffs' solicitors to an expert witness. The plaintiffs, Bryan Kevin Hughes and Vincent Anthony Smith, are the trustees of the Kingstream Steel Creditors' Trust, for the benefit of pre-voluntary administration creditors of Kingstream Steel Ltd. The dispute revolves around an option deed between Kingstream and St Barbara Mines Ltd, which granted Kingstream an option to purchase certain mining tenements. The plaintiffs allege that the option deed does not provide for the inclusion of mining lease applications and seek rectification of the deed. They also claim that the defendants were negligent in withdrawing the applications and seek damages.

The legal issues before the court were whether the letters of instruction to the expert witness, Snowden Mining Industry Consultants Pty Ltd, were protected by legal professional privilege and whether there had been an implied waiver of privilege by the plaintiffs' disclosure of the expert's reports. The defendants argued that the disclosure of the expert's reports implied a waiver of privilege in respect of the letters of instruction, as they had likely influenced the content of the reports. The plaintiffs contended that there had been no waiver of privilege and that the letters did not influence the content of the reports.

The court examined the relevant principles of legal professional privilege and the circumstances in which privilege may be waived. The court concluded that the disclosure of the expert's reports implied a waiver of privilege in respect of the letters of instruction, as it was reasonable to infer that the letters had some influence on the content of the reports. The court ordered the plaintiffs to produce the letters for inspection by the defendants.

The final orders of the court will be determined after hearing the parties on the form of the order and on costs.

Orders