Mahoney v Salt - [2012] QSC 43

SUPREME COURT OF QUEENSLAND

CITATION:

Mahoney v Salt [2012] QSC 43

PARTIES:

TANYA MAREE MAHONEY
(Applicant)

v

LOLA SALT AND AYLAN SALT
(Respondents)

FILE NO/S:

BS 11283 of 2011

DIVISION:

Trial Division

PROCEEDING:

Application

ORIGINATING COURT:

Supreme Court

DELIVERED ON:

March 6, 2012

DELIVERED AT:

Brisbane

HEARING DATE:

February 6, 2012

JUDGE:

Boddice J

ORDER:

The application for disclosure is dismissed.1.

2. The compulsory conference is to be held on or before 30 April 2012.

CATCHWORDS:

PROCEDURE – DISCOVERY AND INTERROGATORIES – DISCOVERY AND INSPECTION OF DOCUMENTS – PRODUCTION AND INSPECTION – GROUNDS FOR RESISTING PRODUCTION – CLIENT LEGAL PRIVILEGE – WHAT CONSTITUTES – PATRICULAR CASES – where the applicant delivered to the respondents a notice of claim pursuant to the Personal Injuries Proceedings Act(Qld) 2002 – where the applicant seeks orders, pursuant to s 35(1) of that Act, that the respondents disclose certain documents – where the respondents object to disclosing the statements on the basis that they are the subject of legal professional privilege – whether legal professional privilege exists in the documents

PROCEDURE – DISCOVERY AND INTERROGATORIES – DISCOVERY AND INSPECTION OF DOCUMENTS – PRODUCTION AND INSPECTION – GROUNDS FOR RESISTING PRODUCTION – CLIENT LEGAL PRIVILEGE – WAIVER OF PRIVILEGE – where the applicant contends the respondents have failed to establish legal professional privilege – where the applicant contends the respondents have alternatively waived legal professional privilege – whether legal professional privilege exists in the documents – whether privilege was waived

STATUTES – ACTS OF PARLIAMENT – INTERPRETATION – PRESUMPTIONS AS TO LEGISLATIVE INTENTION – NOT TO ALTER COMMON LAW RIGHT, PRIVILEGE OR DOCTRINE - where the applicants claim the Personal Injuries Proceedings Act(Qld) 2002 restricts the application of legal professional privilege – whether the documents the subject of the application were “investigative reports” within s30(2) of the Act

Personal Injuries Proceedings Act(Qld) 2002

Shorter Oxford English Dictionary (5th Edition, Oxford)

Commissioner of Australian Federal Police v Propend Finance Pty Ltd (1997) 188 CLR 501

Daniels Corporation International Pty Ltd v Australian Competition and Consumer Commission (2002) 213 CLR 543

Esso Australia Resources Ltd v Federal Commissioner of Taxation (1999) 201 CLR 49

Felgate v Tucker [2011] QCA 194

Grant v Downs (1976) 135 CLR 674

Grosvenor Hill (Queensland) Pty Ltd v Interchase Corporation and Ors [1997] QCA 450

Interchase Corporation Ltd (in liq) v Grosvenor Hill (Queensland) Pty Ltd (No 1) [1999] 1 Qd R 141 at 162

Pratt Holdings Pty Ltd and Anor v Commissioner of Taxation (2004) 136 FCR 357

State of Queensland v Allen [2011] QCA 311

Trade Practices Commissioner v Stirling (1979) 36 FLR 244

Waterford v Commonwealth (1987) 163 CLR 54

Watkins v State of Queensland [2008] 1 Qd R 564

COUNSEL:

JP Kimmins for the applicant

K Holyoak for the respondents

SOLICITORS:

Shine Lawyers for the applicant

Gadens Lawyers for the respondents

On 13 December 2010, the applicant delivered a Notice of Claim pursuant to the Personal Injuries Proceedings Act 2002 (“the Act”) in respect of…

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 Mahoney v Salt

Details

AGLC: Mahoney v Salt [2012] QSC 43
Case: [2012] QSC 43
Decision Date: 6 March 2012

CaseChat Overview and Summary

In the matter of Mahoney v Salt, the parties were involved in a dispute concerning the discovery of documents in the context of personal injury proceedings under the Personal Injuries Proceedings Act 2002 (Qld). The applicant sought orders for the respondents to disclose certain documents, which the respondents objected to on the grounds of legal professional privilege. The case required the court to determine whether the documents were subject to legal professional privilege, whether such privilege had been waived, and whether the Act had altered the common law regarding privilege.

The primary legal issue before the court was whether the documents in question were protected by legal professional privilege and, if so, whether this privilege had been waived. Additionally, the court had to consider whether the Personal Injuries Proceedings Act 2002 had any impact on the application of legal professional privilege to the documents, specifically whether they constituted "investigative reports" under the Act. The applicant argued that the respondents had failed to establish legal professional privilege and had waived any such privilege, while the respondents maintained that the documents were privileged and not subject to disclosure.

The court found that the respondents had established that the documents were subject to legal professional privilege, and there was no evidence of waiver. The court also determined that the Personal Injuries Proceedings Act 2002 did not restrict the application of legal professional privilege to the documents in question. Consequently, the application for disclosure was dismissed, and the compulsory conference was to be held by a specified date.

Orders

Orders of the court

The application for disclosure is dismissed.1.

2. The compulsory conference is to be held on or before 30 April 2012.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	Mahoney v Salt [2012] QSC 43
PARTIES:	TANYA MAREE MAHONEY (Applicant) v LOLA SALT AND AYLAN SALT (Respondents)
FILE NO/S:	BS 11283 of 2011
DIVISION:	Trial Division
PROCEEDING:	Application
ORIGINATING COURT:	Supreme Court
DELIVERED ON:	March 6, 2012
DELIVERED AT:	Brisbane
HEARING DATE:	February 6, 2012
JUDGE:	Boddice J
ORDER:	The application for disclosure is dismissed.1. 2. The compulsory conference is to be held on or before 30 April 2012.
CATCHWORDS:	PROCEDURE – DISCOVERY AND INTERROGATORIES – DISCOVERY AND INSPECTION OF DOCUMENTS – PRODUCTION AND INSPECTION – GROUNDS FOR RESISTING PRODUCTION – CLIENT LEGAL PRIVILEGE – WHAT CONSTITUTES – PATRICULAR CASES – where the applicant delivered to the respondents a notice of claim pursuant to the Personal Injuries Proceedings Act(Qld) 2002 – where the applicant seeks orders, pursuant to s 35(1) of that Act, that the respondents disclose certain documents – where the respondents object to disclosing the statements on the basis that they are the subject of legal professional privilege – whether legal professional privilege exists in the documents PROCEDURE – DISCOVERY AND INTERROGATORIES – DISCOVERY AND INSPECTION OF DOCUMENTS – PRODUCTION AND INSPECTION – GROUNDS FOR RESISTING PRODUCTION – CLIENT LEGAL PRIVILEGE – WAIVER OF PRIVILEGE – where the applicant contends the respondents have failed to establish legal professional privilege – where the applicant contends the respondents have alternatively waived legal professional privilege – whether legal professional privilege exists in the documents – whether privilege was waived STATUTES – ACTS OF PARLIAMENT – INTERPRETATION – PRESUMPTIONS AS TO LEGISLATIVE INTENTION – NOT TO ALTER COMMON LAW RIGHT, PRIVILEGE OR DOCTRINE - where the applicants claim the Personal Injuries Proceedings Act(Qld) 2002 restricts the application of legal professional privilege – whether the documents the subject of the application were “investigative reports” within s30(2) of the Act Personal Injuries Proceedings Act(Qld) 2002 Shorter Oxford English Dictionary (5th Edition, Oxford) Commissioner of Australian Federal Police v Propend Finance Pty Ltd (1997) 188 CLR 501 Daniels Corporation International Pty Ltd v Australian Competition and Consumer Commission (2002) 213 CLR 543 Esso Australia Resources Ltd v Federal Commissioner of Taxation (1999) 201 CLR 49 Felgate v Tucker [2011] QCA 194 Grant v Downs (1976) 135 CLR 674 Grosvenor Hill (Queensland) Pty Ltd v Interchase Corporation and Ors [1997] QCA 450 Interchase Corporation Ltd (in liq) v Grosvenor Hill (Queensland) Pty Ltd (No 1) [1999] 1 Qd R 141 at 162 Pratt Holdings Pty Ltd and Anor v Commissioner of Taxation (2004) 136 FCR 357 State of Queensland v Allen [2011] QCA 311 Trade Practices Commissioner v Stirling (1979) 36 FLR 244 Waterford v Commonwealth (1987) 163 CLR 54 Watkins v State of Queensland [2008] 1 Qd R 564
COUNSEL:	JP Kimmins for the applicant K Holyoak for the respondents
SOLICITORS:	Shine Lawyers for the applicant Gadens Lawyers for the respondents