Mazelow P/L v Herberton Shire Council

[2001] QSC 250

SUPREME COURT OF QUEENSLAND

REGISTRY:  TOWNSVILLE

NUMBER:     S 495 of 2000

[2001] QSC 250  

PLAINTIFF:    MAZELOW PTY LTD (ACN 052 101 229)

and

DEFENDANT:  HERBERTON SHIRE COUNCIL

DECISION -  CULLINANE J.

DELIVERED THE 31ST DAY OF MAY 2001

This is an application by the Plaintiff for an order that the Defendant disclose a document which the Defendant claims is privileged from disclosure.

The litigation arises out of works performed by the Plaintiff pursuant to an agreement with the Defendant.  The works involved the strengthening of a dam under the control of the Defendant local authority.

Gutteridge Haskins & Davey Pty. Ltd. (G.H. & D. Pty. Ltd.), engineers, were appointed as superintendent of the contract.  It is the Plaintiff’s case that the Defendant repudiated the agreement and the Defendant claims damages and the return of certain securities as well as other relief.

The Defendant has claimed privilege in respect of the document which is described in the list of documents in the following way:

Description of Document	Person Who Made Document	Date (if any)
4. Letter and enclosure GHD to Defendant	GHD	09/05/00

The Plaintiff challenges the claim of privilege in relation to the document.

The Plaintiff by a letter of 5^th May 2000 wrote to the engineers in response to a letter of GH & D Pty Ltd dated 17^th April 2000 extending the time for the works program.

The letter from the Plaintiff alleges that the Defendant, by its agent, GH & D Pty Ltd has repudiated the contract and that such repudiation is accepted by the Plaintiff which reserves the right to claim damages.

There is also a demand for the return of certain bank guarantees by a nominated date.  The Plaintiff threatened to institute proceedings against the Defendant in the event that they were not returned.

I have inspected the document concerned.  It is fair to say that it is largely an historical summary of the performance of the contract from the perspective of the engineers.  There are however perhaps a couple of statements which may be regarded as amounting to opinions. 

It is the Defendant’s claim that the document was brought into existence for the purpose of appraising their solicitors of the factual background of the dispute which had by then arisen so as to obtain legal advice.  The date -upon which the request was made does not appear. 

Rule 211 of the Uniform Civil Procedure Rules provides for the duty of disclosure. Rule 212 provides for the documents to which Rule 211 does not apply and does so in the following terms:
           “[r 212]          Documents to which disclosure does not apply

(1)      The duty of disclosure does not apply to the following documents –

(a)a document in relation to which there is a valid claim to privilege from disclosure;

(b)a document relevant only to credit;

(c)an additional copy of a document already disclosed, if it is reasonable to suppose the additional copy contains no change, obliteration or other mark or feature likely to affect the outcome of the proceeding;

(2)      A document consisting of a statement or report of an expert is not privileged from disclosure.”

It is the Plaintiff’s contention that the document is not one in respect of which a valid claim to privilege could have been made putting aside any consideration of Rule 212(2) but that in any case if such a claim was otherwise maintainable Rule 212(2) deprives the Defendant of any right to it.

For a party to be able to rely upon a claim for privilege it is necessary that the document be brought into existence in reasonable anticipation of litigation.  See cases such as Alfred Crompton Amusement Machines Ltd v Customs and Excise Commissioners (No 2) 1974 AC 405 and Australian Competition and Consumer Commission v Australian Safeway Stores Pty Ltd 153 ALR 393 and Taylor v. Commissioner for Railways [1974] QR 131.

I think that the circumstances in which the report was obtained in this case meet this test.  The letter to which I have referred can only be understood as conveying a threat to institute proceedings.  The letter was written against the background of a cessation of work by the Plaintiff under a contract involving substantial works for a local authority.  Taken as a whole the circumstances in my view were able to give rise to a reasonable anticipation on the part of the Defendant that litigation was likely to be instituted.

For the Defendant it was contended that since the document amounted in by far the greater part to no more than a factual account of the history of the contract and the Plaintiff’s performance of it, it does not meet the test of a report or a statement for the purposes of Rule 212(2).  Primarily it is said that this is so because the report does not contain expressions of opinion except perhaps in a couple of minor instances.  Nor does it purport to be a statement of evidence which might be given by the engineer concerned.

The Respondent’s argument that the report or statement must be concerned with matters within the expert’s area of expertise must, it seems to me, be accepted.  Obviously a statement by a person who happens to be an expert in some field and which deals with a subject matter unrelated to his field of expertise does not fall within the rule.

However, I do not think it is necessary that the report or statement be constituted wholly or substantially by expressions of opinion. For example some areas of expertise may not involve expressions of opinion but rather the presentation of data established by scientific means.

The report in the present case cannot be divorced from its surrounding circumstances.  In the letter by the engineers to the Plaintiff dated the 17^th April 2000, the engineers gave certain directions to the Plaintiff to perform works and extended the time for the completion of the works.  These directions are contested by the Plaintiff and are the subject of the litigation.  Some of the dispute relates to the legal effect of the contract but the Plaintiff also contends that by the directions the engineers denied the Plaintiff the right to perform some of the contractual works and in other cases directed the Plaintiff to perform works which may not be able to be performed or are unreasonable.

These directions undoubtedly involve the making of judgments by the engineers within the area of its expertise.

The Plaintiff’s reply on 5^th May 2000 sets out its response.  The issues to which I have referred are reflected in the pleadings.

The report, the subject of this application, can, in my view, only be understood as the engineers’ summary of the history of the contract from its perspective.  I think it is fair to say, that it is capable of being regarded as a purported justification of the position adopted by the engineers on behalf of the Defendant and thus of the Defendant’s position.

It is true that in large measure, (although not wholly, because there are opinions expressed in a couple of places,) the report constitutes no more than a summary of factual matters which might have been prepared by a person without any expertise who had access to the records.  However as I have said the statement must be considered in the light of the surrounding circumstances and it is I think, coloured by them.
The Defendant, in my view, has not made out its claim for privilege.  I think that the rule applies to the document in this case. 

I order the Defendant to disclose the letter and enclosure of G H & D Pty Ltd to the Defendant dated 5^th May 2000. 

I order the Defendant to pay the Plaintiff’s costs of and incidental of the application to be assessed.