Lowe v Lang - [2000] NSWSC 309

CITATION: Lowe v Lang [2000] NSWSC 309

CURRENT JURISDICTION: Equity

FILE NUMBER(S): SC 1082/96

HEARING DATE(S): 30 March 2000

JUDGMENT DATE: 30 March 2000

PARTIES :

Michael Campbell Lowe (P)
Barry Arthur Lang (D1)
Erolgreen Pty Ltd (D2)

JUDGMENT OF: Hamilton J

COUNSEL : P T Taylor (P)
P J Deakin QC and P R Stockley (D1 & 2)

SOLICITORS: Baldock Stacy & Niven (P)
Kenny Spring (D1 & 2)

CATCHWORDS: EVIDENCE [228] - Witnesses - Refreshing memory - Generally - Documents used to revive memory - Memory revised before swearing affidavits read in evidence - Whether production required under Evidence Act 1995 (NSW) s 34 - Memory revived from part of privileged document - Rest of document not relevant to witness' testimony - Whether production of whole document should be required under s 34.

LEGISLATION CITED: Evidence Act 1995 ss 32, 33, 34, 35, 36

CASES CITED: Adelaide Steamship Co Ltd v Spalvins (1998) 81 FCR 360
Esso Australia Resources Ltd v Commissioner of Taxation (1999) 74 ALJR 339
Lowe v Lang [2000] NSWSC 302
Lowe v Lang [2000] NSWSC 307
Mancorp Pty Ltd v Baulderstone Pty Ltd (1991) 57 SASR 87
Maurice v Attorney General for the NT (191986) 161 CLR 475
MGICA (1992) Ltd v Kenny & Good Pty Ltd (1996) 135 ALR 743
Northern Territory v GPAO (1999) 73 ALJR 470
Telstra Corporation Ltd v BT Australasia Pty Ltd (1998) 85 FCR 152

DECISION: Application for production of documents in part granted, in part refused.

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION
HAMILTON J
THURSDAY, 30 MARCH 2000
1082/96 MICHAEL CAMPBELL LOWE v BARRY A LANG & 1 ORS
JUDGMENT - See transcript page 746
HIS HONOUR:
1 There has been an application by Mr Deakin, of Queen's Counsel for the defendants, for a direction appropriate to ensure that specified documents are produced to the defendants for the purposes of the proceedings pursuant to s 34(1) of the Evidence Act 1995 (“the Evidence Act”). The matter arises in this way. Documents from the file of Mr Brad Stuart, solicitor, a witness in the proceedings, have been delivered to the Court as on subpoena during the course of his evidence in the witness box pursuant to a direction under s 36 of the Evidence Act. Mr Stuart had sworn two affidavits which have been read in the proceedings. The proceedings are being conducted under a regime in which the evidence in chief of all witnesses has been required to be given by affidavit, as is now customary in trials in this Division. There has been only very limited examination in chief of any witness, and that in every case by leave.
2 The documents concerned were contained in an envelope marked MFI 10. I had earlier ruled that privilege in relation to the documents we are here concerned with existed and had not been given up and refused inspection of the documents: Lowe v Lang [2000] NSWSC 302; Lowe v Lang

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.

Keep reading for free

Create a free CaseChat account to read Lowe v Lang and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2000] NSWSC 309
Decision Date: 30 March 2000

CaseChat Overview and Summary

In the case of Lowe v Lang, the plaintiff, Lowe, brought proceedings against the defendant, Lang, in the Supreme Court of New South Wales. The dispute centres on the admissibility of certain documents used to refresh the memory of a witness prior to giving evidence. The court was required to determine whether the entire document, which included both privileged and non-privileged information, should be produced under section 34 of the Evidence Act 1995 (NSW).

The primary legal issue addressed by the court was whether the entire document had to be produced to the opposing party. The court considered the nature of the information contained in the document and whether the refreshed memory of the witness pertained only to the non-privileged part of the document. The court had to balance the need for transparency in the legal process against the protection of privileged information. Specifically, the court had to determine whether the memory was refreshed by privileged information, and if so, whether the privilege extended to the entire document or only to the part that was relevant to the witness's testimony.

The court found that the memory of the witness was refreshed from a part of the document that was not privileged. However, the entire document was produced to the witness before the affidavits were sworn. The court concluded that the privilege did not extend to the entire document, as the part used to refresh the witness's memory was not privileged. Consequently, the court held that there was no requirement under section 34 of the Evidence Act to produce the whole document. The court balanced the need for transparency with the protection of privileged information and determined that only the non-privileged part of the document needed to be disclosed.

The final orders of the court confirmed that the production of the entire document was not required. The court emphasised the importance of distinguishing between privileged and non-privileged information when determining the scope of disclosure under section 34 of the Evidence Act. The court's decision highlighted the need for careful consideration of the nature of the information used to refresh a witness's memory and the extent to which privilege applies to the document in question.

Orders