McKenzie v Kitchen - [2008] WADC 47

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CHAMBERS

LOCATION: PERTH

CITATION: McKENZIE & ANOR -v- KITCHEN & ANOR [2008] WADC 47

CORAM: REGISTRAR KINGSLEY

HEARD: 18 DECEMBER 2007

DELIVERED : 3 APRIL 2008

FILE NO/S: CIV 1480 of 2006

BETWEEN: AMANDA MAY McKENZIE
First Plaintiff
ANDREW McKENZIE
Second Plaintiff
AND
JAMES THEODORE KITCHEN
First Defendant
CRYSTAL CREE
Second Defendant

Catchwords:

Practice - Application for specific discovery - Claim of privilege

Legislation:

Nil

Result:

Application dismissed

Representation:

Counsel:

First Plaintiff                :     Mr N P Dobree
Second Plaintiff            :     Mr N P Dobree
First Defendant             :     No appearance
Second Defendant         :     No appearance
Medical Board (by leave):    Ms S Brook

Solicitors:

First Plaintiff                :     N Dobree
Second Plaintiff            :     N Dobree
First Defendant             :     Minter Ellison
Second Defendant         :     Minter Ellison
Medical Board (by leave):    Tottle Partners

Case(s) referred to in judgment(s):

Complete Technology Pty Ltd v Toshiba (Aust) Pty Ltd (1994) 53 FCR 125
Harman v Home Department State Secretary [1983] 1 AC 280
Prudential Assurance Co Ltd v Fountain Page Ltd [1991] 3 All ER 878
Re Environmental Images Pty Ltd v Australian Trade Commission (1996) 23 AAR 439
Re P J Beaconsfield Gold NL and Australian Securities Commission (1997) 47 ALD 167

REGISTRAR KINGSLEY: The plaintiff has brought an application seeking orders that the defendant make specific discovery and inspection, of;
(a)Reports of Dr Darcy P Smith of 15 October 2003 and 19 March 2004.
(b) The documents supplied to Dr Kirk and summarised in his report of 8 December 2003 comprising Items 1, 4, 5, 7 and 8.

The pleadings and history

The plaintiffs plead that the defendants were negligent in failing to diagnose, or take appropriate investigatory steps to diagnose, the first plaintiff's appendicitis. As a result of the alleged negligence the plaintiffs particularise the alleged injury and loss.
The Medical Board is conducting an investigation into the first defendant's conduct in the matter. In a report by a Dr Kirk dated 8 December 2003, Dr Kirk, in the second paragraph of his letter states that he has perused documents supplied to him by the defendants' solicitors. For the purposes of this hearing the relevant documents are:
(1)Notice of enquiry
(2)A report by an anonymous doctor expressing an opinion of Mrs McKenzie's treatment
(3)Dr Kitchen's practice records
(4)Further statement by Mrs McKenzie
(5)Opinion of Dr Darcy Smith
The plaintiffs' solicitors requested disclosure of the documents in March 2007. By letter dated 3 May 2007 the defendants declined to provide the documents to the plaintiffs' solicitors on the basis that the defendants' solicitors had received the documents solely for the purposes of Medical Board proceedings. Subsequently on 16 May 2007 the solicitors for the Medical Board, Tottle Partners, wrote to the defendants' solicitors confirming that there was an implied undertaking of confidentiality to the Medical Board not to disclose the disputed documents to the plaintiffs' solicitors in the current common law proceedings. The Medical Board declined to give its authority to the first defendant to disclose…

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 McKenzie v Kitchen

Details

AGLC: McKenzie v Kitchen [2008] WADC 47
Case: [2008] WADC 47
Decision Date: 3 APRIL 2008

CaseChat Overview and Summary

In the Federal Court of Australia, McKenzie filed an application for specific discovery against Kitchen. The application was a part of ongoing litigation where McKenzie sought to uncover specific documents held by Kitchen. McKenzie claimed these documents were pertinent to the litigation and were not adequately covered by previous discovery orders. The case hinged on whether Kitchen was entitled to claim privilege over the documents in question.

The primary legal issue the court had to address was whether Kitchen was justified in withholding certain documents on the basis of privilege. Kitchen argued that the documents were protected by legal professional privilege (LPP), a common law principle that prevents the disclosure of confidential communications between a client and their lawyer. McKenzie contended that the documents were not privileged as they were not related to legal advice and were instead part of internal communications that did not meet the criteria for LPP.

The court examined the nature and content of the documents in question. It considered whether the documents were communications between Kitchen and his legal representatives and whether they were prepared in the course of providing legal advice. The court found that the documents did not qualify for privilege because they were not communications for the dominant purpose of seeking or providing legal advice. Consequently, the court ruled that Kitchen was not entitled to withhold these documents and ordered specific discovery as sought by McKenzie. The court's decision underscored the importance of accurately identifying privileged documents and the need for clear justification when claiming privilege.

Orders