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Kentish Council v Bellenjuc Pty Ltd

Kentish Council v Bellenjuc Pty Ltd

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Case Copied 11 November 2011 37 min read

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[2011] TASSC 58

COURT: SUPREME COURT OF TASMANIA

CITATION: Kentish Council v Bellenjuc Pty Ltd [2011] TASSC 58

PARTIES:  KENTISH COUNCIL
  v
  BELLENJUC PTY LTD

FILE NO/S: 173/2009
JUDGMENT

APPEALED FROM: Bellenjuc Pty Ltd v Kentish Council [2011] TASSC 12

DELIVERED ON:  11 November 2011
DELIVERED AT:  Hobart
HEARING DATE:  2 August 2011
JUDGMENT OF:  Porter J

CATCHWORDS:

Procedure – Discovery and interrogatories – Discovery and inspection of documents – Production and inspection – Grounds for resisting production – Legal professional privilege – Waiver of privilege – Implied waiver – Solicitor's instructions to expert – Proof of expert delivered – No express reference in proof to or incorporation of instructing material – Assumptions of fact set out – Rule of court requiring expert proof to contain facts, matters and assumption on which opinion expressed – Relevant principles – No implied waiver.

Supreme Court Rules 2000 (Tas), rr515 and 516(2)(d).
Mann v Carnell (1999) 201 CLR 1; Cole v Dyer (1999) 74 SASR 216; Australian Securities and Investments Commission v Southcorp Ltd [2003] FCA 804; British American Tobacco Australia Services Ltd v Cowell (2002) 7 VR 524 applied.
Attorney-General (NT) v Maurice (1986) 161 CLR 475; Clark v Boden (2004) 13 Tas R 198; Dean v More Than a Morsel Pty Ltd (2002) 170 FLR 432, considered.
Aust Dig Procedure [449]

REPRESENTATION:

Counsel:
             Appellant:  S B McElwaine
             Respondent:  B R McTaggart
Solicitors:
             Appellant:  Shaun McElwaine & Associates
             Respondent:  Page Seager

Judgment Number: [2011] TASSC 58
Number of paragraphs: 61

Serial No 58/2011
File No 173/2009

KENTISH COUNCIL v BELLENJUC PTY LTD

REASONS FOR JUDGMENT PORTER J

11 November 2011

Introduction

This is an appeal from a decision of the Associate Judge. Bellenjuc Pty Ltd ("the Company") has sued the Kentish Council for damages in negligence arising out of an accident in April 2004. The Company's employee was driving a semi-trailer on a road on which the Council was carrying out maintenance works. It is alleged that as a result of these works, mud, gravel and other debris were on the road. It is alleged that the Company's employee drove onto the debris which caused the employee to lose control of the truck, which rolled over causing injuries to the employee and extensive damage to the truck.

In the course of the action, the Company delivered an undated proof of evidence of Alan Thompson, a consulting engineer, as to the cause of the accident. In the proof, Mr Thompson states that he has assumed "matters of fact". The Council sought, but was refused, the production for inspection of the "brief of materials upon which his opinion is based". By an interlocutory application, the Council sought the following orders:

"That within 7 days the plaintiff produce for the inspection of the legal practitioner of the defendant all documents relied upon by Alan Thompson as forming the basis for any of the assumptions of fact expressed in his expert report dated 2 February 2010, including, but without limiting…

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: [2011] TASSC 58
Decision Date: 11 November 2011

CaseChat Overview and Summary

Kentish Council brought proceedings against Bellenjuc Pty Ltd in relation to an application for development approval. The Council sought discovery and inspection of documents, including expert reports, which Bellenjuc resisted on the basis of legal professional privilege. The primary dispute centred on whether Bellenjuc had waived its privilege by providing an expert report to the Council without explicitly incorporating or referring to the instructing material. The case was heard in the Supreme Court of Victoria.

The court had to decide whether Bellenjuc's provision of an expert report to the Council constituted an implied waiver of legal professional privilege. This involved assessing whether the principles of implied waiver of privilege applied in this context. The court needed to determine if the mere delivery of the expert report, without explicit reference to the instructing material, constituted a waiver of privilege under the circumstances. Additionally, the court examined the relevance of the rule of court that required expert proof to contain the facts, matters, and assumptions on which the expert's opinion was expressed.

The court found that Bellenjuc had not impliedly waived its legal professional privilege by delivering the expert report. The court reasoned that the absence of express reference to or incorporation of the instructing material in the expert report did not amount to a waiver of privilege. The court emphasised that the principles of implied waiver required a clear and unequivocal act of waiver, which was not present in this case. The court also noted that the rule of court concerning the contents of expert proof did not automatically lead to a waiver of privilege. Therefore, the court upheld Bellenjuc's objection to the discovery and inspection of the instructing material.

No orders were made regarding the discovery and inspection of documents.

Orders