Law and Property Management Pty Ltd at/f Law and Property Family Trust v Body Corporate for Paradise Palms
[2013] QCATA 319
•20 November 2013
| CITATION: | Law and Property Management Pty Ltd at/f Law and Property Family Trust v Body Corporate for Paradise Palms [2013] QCATA 319 |
| PARTIES: | Lawand Property Management Pty Ltd at/f Lawand Property Family Trust (Appellant) |
| v | |
| Body Corporate for Paradise Palms CTS 23869 (Respondent) |
| APPLICATION NUMBER: | APL046-13 |
| MATTER TYPE: | Appeals |
| HEARING DATE: | On the papers |
| HEARD AT: | Brisbane |
| DECISION OF: | Hon K Cullinane AM QC, Judicial Member |
| DELIVERED ON: | 20 November 2013 |
| DELIVERED AT: | Brisbane |
| ORDERS MADE: | 1. The application for inspection of documents is dismissed. |
| CATCHWORDS: | PRACTICE AND PROCEDURE – INTERIM DECISION – APPLICATION TO PRODUCE A DOCUMENT – where the applicant seeks an order requiring the respondent to produce documents under s 62 of the Queensland Civil and Administrative Tribunal Act 2009 – where respondent claims the relevant documents are protected by legal professional privilege – where the respondent claims the documents include communications between a solicitor and the respondent for the purposes of giving legal advice – whether the Tribunal should make an order requiring the respondent to produce such documents Body Corporate and Community Management Act 1997 (Qld) s 202 Baker v Evans (1987) 77 ALR 565, cited |
APPEARANCES and REPRESENTATION (if any):
This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009.
REASONS FOR DECISION
The Applicant has appealed against a decision of the Tribunal declaring that a purported by-law of the Respondent (or parts thereof) is invalid.
It is the Applicant’s claim that the Respondent in its outline of argument has raised a new issue. The Respondent seeks to have the original decision stand on other grounds.
The Applicant seeks the production of certain documents under section 62 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld). The Respondent raises a claim of professional privilege in relation to some of these documents and this application is concerned with the question whether the claim for privilege should be upheld.
The relevant documents are described in an affidavit of a solicitor (one Strangman) for the Respondent.
The relevant documents are dated late 1997 and mid and late 1998. They are described individually as they are required to be. The present litigation was instituted in 2012 and relates to events (contract and assignment) which occurred in 2007 and 2008.
The Applicant contends that the documents in respect of which privilege is claimed being from a period so many years earlier could not possibly be the subject of a such a claim.
This may be accepted if the claim for privilege was based upon the claim that the documents were prepared with the dominant purpose of being used in actual or anticipated litigation.
This is however not the case. Here the privilege claimed is based upon communication between a solicitor and client for the purposes of giving legal advice.
Professional privilege may be waived but otherwise endures for life in the case of a natural person or until dissolution in the case of a company. See Baker v Evans (1987) 77 ALR 565 and Colcraft v Guest (1898) 1 QB 759. There is no evidence of waiver here.
There is no basis in my view to doubt that the claim for privilege is genuinely made.
The applicant may seek relief under s 202 of the Body Corporate and Community Management Act 1997 (Qld) but would have to do so elsewhere and would still be faced, on my reading, with a possible claim of privilege.
The application for inspection of documents is dismissed.
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