More Than a Morsel Pty Ltd v Dean - [2003] ACTCA 9

MORE THAN A MORSEL PTY LIMITED v LISA DEAN [2003] ACTCA 9 (19 February 2003)

EX TEMPORE JUDGMENT

ON APPEAL FROM A JUDGE OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

No. ACTCA 26 - 2002
No. SC 420 of 1999

Judges: Crispin P, Gray and Wilcox JJ
Court of Appeal of the Australian Capital Territory
Date: 19 February 2003

IN THE SUPREME COURT OF THE  )   No. ACTCA 26 - 2002
  )  No. SC 420 of 1999
AUSTRALIAN CAPITAL TERRITORY  )
  )

COURT OF APPEAL )

ON APPEAL FROM A JUDGE OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

BETWEEN:MORE THAN A MORSEL PTY LIMITED
Appellant

AND:LISA DEAN
Respondent

ORDER

Judges:  Crispin P, Gray and Wilcox JJ
Date:  19 February 2003
Place:  Canberra

THE COURT ORDERS THAT:

the application will be dismissed with costs.

IN THE SUPREME COURT OF THE  )   No. ACTCA 26 - 2002
  )  No. SC 420 of 1999
AUSTRALIAN CAPITAL TERRITORY  )
  )

COURT OF APPEAL )

ON APPEAL FROM A JUDGE OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

BETWEEN:MORE THAN A MORSEL PTY LIMITED
Appellant

AND:LISA DEAN
Respondent

Judges:  Crispin P, Gray and Wilcox JJ
Date:  19 February 2003
Place:  Canberra

EX TEMPORE REASONS FOR JUDGMENT

CRISPIN P

This is an application for leave to appeal against the decision of the former Chief Justice allowing an appeal against the decision of the then Master to dismiss a motion for access to certain witness statements obtained by the solicitors for the respondent.

Copies of the statements had been made available to a medical practitioner, Dr Hesian, who had then provided a report, dated 7 November 2001, in which he expressed what purport to be expert opinions concerning the respondent, based apparently upon assertions contained in those statements. The report, a copy of which was duly served upon the respondent’s solicitors, refers to some of the assertions but does not, of course, set out the contents of the statements in full. It should be observed that it appears from the report that Dr Hesian did not see or interview the respondent and that his opinions were based entirely upon that material.

The Master dismissed the application, finding that legal professional privilege remained. The learned Chief Justice took a different view and ordered that it be produced.

On an application for leave to appeal against an interlocutory judgment it is necessary to establish not only that there is at least a triable issue which should be considered on appeal, but that substantial injustice would result if leave were refused. In support of the contention that substantial injustice would result in this case, counsel for the applicant relied upon the proposition that disclosure of the statements prior to trial would lead to the loss of certain tactical advantages that might be available if they could be withheld until the respondent had committed herself to a particular version of the events. For myself, I accept that it is possible that some…

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.

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Details

Case: [2003] ACTCA 9
Decision Date

CaseChat Overview and Summary

The Court of Appeal of the Australian Capital Territory heard an application for leave to appeal by More Than a Morsel Pty Limited against a decision of a judge of the Supreme Court. The dispute concerned an application for access to witness statements that had been provided to a medical practitioner, Dr Hesian, who subsequently prepared a report containing expert opinions based on those statements. The initial application for access to the statements had been dismissed by a Master on the grounds of legal professional privilege, but this decision was overturned on appeal to a judge of the Supreme Court.

The primary legal issue before the Court of Appeal was whether to grant leave to appeal against the interlocutory judgment. To succeed, the applicant needed to demonstrate not only a triable issue but also that substantial injustice would result from refusing leave. The applicant argued that disclosure of the statements before trial would result in a loss of tactical advantage, while the respondent contended that withholding the statements would likely necessitate an adjournment for further expert opinion, causing delay and expense.

The Court of Appeal considered the potential prejudice to the applicant from early disclosure, but found it difficult to assign significant weight to this factor. Conversely, the court noted that upholding privilege would likely lead to procedural difficulties for the respondent, requiring an adjournment and incurring further costs. The court concluded that the applicant had not demonstrated that substantial injustice would result from the judge's decision to order production of the statements.

The application for leave to appeal was dismissed with costs. The court also commented that the practice of providing witness statements to an expert for them to "trawl through" and form opinions was misconceived and objectionable, particularly when the party relying on such a report then sought to withhold the underlying material from which the expert's views were formed.

Orders