Oates v BUTTERLY Summary

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

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

CaseChat Overview and Summary

The case of Oates v Butterly involved an application for leave to appeal an interlocutory order made by a District Court Judge in New South Wales. The applicant, Oates, sought to appeal the decision that dismissed their claim for damages arising from an alleged breach of contract. The respondent, Butterly, opposed the application on the basis that the appeal had no reasonable prospect of success and that the interlocutory order was correctly made. The matter was heard in the Supreme Court of New South Wales, which was tasked with determining whether the applicant should be granted leave to appeal.

The primary legal issue before the court was whether the applicant had demonstrated that the appeal had a reasonable prospect of success. This involved assessing the merits of the applicant's arguments against the findings and reasoning of the District Court Judge. The court also considered whether the interlocutory order was interlocutory in nature and whether the appeal was an appropriate means of challenging the order. The applicant argued that the District Court Judge had erred in law or misapplied the principles governing the breach of contract claim, while the respondent contended that the interlocutory order was correctly made and that the appeal had no reasonable prospect of success.

The court examined the grounds of appeal and the evidence presented by both parties. It found that the District Court Judge had carefully considered the relevant legal principles and had applied them correctly in reaching the decision. The court held that the applicant had not demonstrated that the appeal had a reasonable prospect of success, as the arguments presented were not sufficiently compelling to overturn the findings of the District Court Judge. The court also determined that the interlocutory order was indeed interlocutory in nature and that the appeal was not the appropriate means of challenging the order. Consequently, the court dismissed the application for leave to appeal.

The Supreme Court of New South Wales dismissed the application for leave to appeal from the interlocutory order of the District Court Judge. The court found that the applicant had not demonstrated a reasonable prospect of success on appeal and that the interlocutory order was correctly made. The appeal was therefore not permitted to proceed.

Oates v BUTTERLY

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established