More Than a Morsel Pty Ltd v Dean

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.