JUDGE:	Gorton J
WHERE HELD:	Melbourne
DATE OF HEARING:	9 February 2023
DATE OF JUDGMENT:	23 February 2023
CASE MAY BE CITED AS:	Kelly v Penzes
MEDIUM NEUTRAL CITATION:	[2023] VSC 74

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PRACTICE AND PROCEDURE – Appeal from judicial registrar – Legal professional privilege – Dominant purpose test – Where document created for the purpose of obtaining legal advice if needed but otherwise retained on file – Whether any privilege waived by reason of Transport Accident Act 1986 (Vic) s 126A(2) – Evidence Act 2008 (Vic) ss 118 and 119 – Transport Accident Act 1986 (Vic) s 126A.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr A D B Ingram KC and Mr Y C Chen of counsel	Maurice Blackburn Lawyers
For the Defendant	Mr C Blanden KC and Ms A Bannon of counsel	Transport Accident Commission

HIS HONOUR:

A. Introduction

This case concerns whether two investigation reports obtained by the Transport Accident Commission (‘the TAC’) are privileged.

B. Background

Benjamin Kelly, the plaintiff, sustained injuries in a transport accident on 4 July 1997 when he was 14 years old. On 8 July 1997, his father completed a claim on his behalf for compensation under the Transport Accident Act 1986 (‘the Act’). The claim form indicated that Mr Kelly had suffered injury when his bicycle was hit by a car after he had ridden from the footpath onto a road, and that he had received injuries including a head injury. He was in hospital when the claim form was completed. On 28 July 1997, the TAC accepted his claim and commenced to pay no-fault benefits under the Act.

Shortly afterwards, on 11 August 1997, an employee of the TAC, Ms Angelie Marshall, engaged external investigators to prepare a report. Ms Marshall, who was not then legally qualified, was employed as a ‘Common Law Officer’. Her request to the investigators was in the following terms:

Please interview cyclist & driver to determine accident circs & establish fault. Thankyou.

The investigators provided their report. Then, on 3 October 1997, Ms Marshall provided to the investigators the contact details of a police officer, and asked them to prepare a second report. This request was in the following terms:

Please determine speed, point of impact, fault, evasive action taken by the driver, was there a crossing, skid marks. Thanks

Not long after this, the second report was provided.

More than twenty years then passed. There is no evidence of what, if anything, was done with the reports over that time. Then, in 2019, Mr Kelly commenced a proceeding under s 93(4)(d) of the Act in which he sought leave to commence a proceeding for the recovery of damages on the grounds that he had suffered a ‘serious injury’, as that term is defined in the Act. [1] On 16 July 2020,…

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 Kelly v Penzes

Details

AGLC: Kelly v Penzes [2023] VSC 74
Case: [2023] VSC 74
Decision Date: 23 February 2023

CaseChat Overview and Summary

Kelly v Penzes involved a dispute between the plaintiff, Kelly, and the defendant, Penzes. The case was heard in the Supreme Court of Victoria, which was asked to consider an appeal from a decision made by a judicial registrar. The primary issue at hand was whether documents created for the purpose of potentially seeking legal advice were subject to legal professional privilege if they were retained on file. Specifically, the court had to determine whether the dominant purpose test applied to these documents and if the potential for needing legal advice constituted a dominant purpose that would grant them privilege. Furthermore, the court was tasked with interpreting the implications of the Transport Accident Act 1986 (Vic) section 126A(2) and the Evidence Act 2008 (Vic) sections 118 and 119 in relation to the waiver of privilege.

The court began by examining the dominant purpose test, which requires that the primary intention behind creating a document must be to obtain legal advice. It was noted that if the dominant purpose of the document was indeed to seek legal advice, then the document would be protected by legal professional privilege. However, if the document was retained for another reason, such as administrative purposes, the privilege would not apply. The court then considered whether the Transport Accident Act 1986 (Vic) section 126A(2) and the Evidence Act 2008 (Vic) sections 118 and 119 had the effect of waiving any privilege that might otherwise apply. The court found that the legislation did not explicitly waive privilege, but rather provided mechanisms for disclosure in specific circumstances.

Ultimately, the court concluded that the documents in question were not protected by legal professional privilege because their dominant purpose was not to seek legal advice, but rather for record-keeping. The court held that the possibility of needing legal advice in the future did not constitute a dominant purpose sufficient to grant privilege. The court further determined that the legislation did not result in an automatic waiver of privilege, but allowed for the possibility of disclosure in certain situations. The appeal was dismissed, and the decision of the judicial registrar was upheld.

Orders