Oates v BUTTERLY

[2000] WASC 65

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA

IN CHAMBERS

CITATION:   OATES -v- BUTTERLY & ANOR [2000] WASC 65

CORAM:   MASTER BREDMEYER

HEARD:   15 MARCH 2000

DELIVERED          :   16 MARCH 2000

FILE NO/S:   CIV 1262 of 2000

BETWEEN:   MARIUS EVAN OATES

Plaintiff

AND

JOHN LIONEL BUTTERLY
JUDITH MAREE BUTTERLY
Defendants

Catchwords:

Application for leave to appeal from an interlocutory order of a District Court Judge

Legislation:

District Court of Western Australia Act 1969, s 79(1)(b)

Result:

Application dismissed

Representation:

Counsel:

Plaintiff:     Mr T N Cullity

Defendants:     Mr C C Rimmer

Solicitors:

Plaintiff:     Trewin Norman & Co

Defendants:     Jackson McDonald

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

Lloyd v Centurion Roller Shutters Pty Ltd & Anor (1994) 10 SR (WA) 202

Strowse v Hales Precision Metal Products Pty Ltd, unreported; DCt of WA; Library No D970357; 12 November 1997

Case(s) also cited:

Nil

1. MASTER BREDMEYER: This is an application by a plaintiff for leave to appeal against a decision of Viol DCJ given on 1 March 2000 on an interlocutory matter. Leave to appeal is required by s 79(1)(b) of the District Court of Western Australia Act 1969.  A Master has power to hear the application under O 60 r 1(1)(f) of the Rules of the Supreme Court.  Leave should be granted if the decision is wrong or attended by sufficient doubt and if substantial injustice would be done if the decision is not reversed.

2. I propose to follow the reasoning of Barlow J in Lloyd v Centurion Roller Shutters Pty Ltd & Anor (1994) 10 SR (WA) 202 and L A Jackson DCJ in Strowse v Hales Precision Metal Products Pty Ltd, unreported; DCt of WA; Library No D970357; 12 November 1997 and refuse leave to appeal for the following reasons.  I learn from those cases that surveillance videos prepared by a defendant are protected by legal professional privilege and that applications by plaintiffs to inspect them pre‑trial are consistently denied.  What is said to make this case different is that this video was shown by the defendants to Dr Edelman and a medical report was obtained from him.  Inspection of this report was sought by the plaintiff and also denied by Viol DCJ.  I agree with the learned District Court Judge that there is no property in a witness so, even if Dr Edelman had examined the plaintiff on behalf of the plaintiff, showing the video to him does not amount to a waiver of legal professional privilege.  The video was not shown to the plaintiff or to his solicitors.  I agree with Jackson DCJ in Strowse that there are good forensic and public policy reasons why a surveillance video need not be shown to the plaintiff.  I also agree with him that, although medical reports are normally exchanged pre‑trial under O 36A r 2(2), this is an appropriate case where a contrary rule can be made.  The reason is that this late medical report comments on the plaintiff's movements as shown in the video, so to disclose it would, in effect, disclose the content of the video, and I agree with Jackson DCJ that it is not unfair to a plaintiff to withhold a view of the surveillance video and the medical report commenting on it, until the trial.

3. The application for leave to appeal is dismissed with costs awarded to the defendants.