Preston v Harbour Pacific - [2002] NSWSC 1256

CITATION: PRESTON v HARBOUR PACIFIC & ORS [2002] NSWSC 1256

FILE NUMBER(S): SC 20900 OF 2002

HEARING DATE(S): 19 December 2002

JUDGMENT DATE: 19 December 2002

PARTIES :

ALEXANDER PRESTON
(Plaintiff)
v
HARBOUR PACIFIC UNDERWRITING MANAGEMENT PTY LTD
(ACN 003 406 611)
(First Defendant)
TERENCE SEAN McCABE
(Second Defendant)
BRUCE PAUSEY
(Third Defendant)
CHRISTOPHER DONALD WOOD
(Fourth Defendant)
MICHAEL MAHER & ASSOCIATES PTY LTD
(ACN 002 688 566)
(Fifth Defendant)
MICHAEL MAHER
(Sixth Defendant)

JUDGMENT OF: Levine J

COUNSEL :
M Coffey
(Plaintiff)
T Blackburn
(First Defendant)

SOLICITORS:
Gells
(Plaintiff)
Phillips Fox
(First Defendant)
Acuiti Legal
(Second, Third & Fourth Defendants)
Hunt & Hunt
(Fifth & Sixth Defendants)

CATCHWORDS: Discovery - application for inspection

LEGISLATION CITED: s183 Evidence Act (1995)

CASES CITED: Attorney General of Northern Territory v Maurice (1996) 161 CLR 475
Goldberg v Ng (1995) 185 CLR 83
Marsden v Amalgamated Television Services Pty Ltd [1999] NSWSC 428

DECISION: See paragraphs 23 and 24

Ex tempore - revised
IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION
DEFAMATION LIST

JUSTICE DAVID LEVINE

THURSDAY 19 DECEMBER 2002

20900 OF 2002

ALEXANDER PRESTON
(Plaintiff)

v

HARBOUR PACIFIC UNDERWRITING MANAGEMENT PTY LTD
(ACN 003 406 611)
(First Defendant)

TERENCE SEAN McCABE
(Second Defendant)

BRUCE PAUSEY
(Third Defendant)

Christopher donald wood
(f ourth Defendant)

MICHAEL MAHER & ASSOCIATES PTY LTD
(ACN 002 688 566)
(Fifth Defendant)
MICHAEL MAHER
(Sixth Defendant)

JUDGMENT (Discovery – application for inspection)

1 By an Amended Statement of Claim filed on 2 May this year, the plaintiff seeks from the sixth defendant damages for defamation arising out of an alleged slander said to have been uttered by him in September 1998.

2 In very general terms, as I understand the case, the plaintiff suffered a loss in respect of the risk of which he had insurance coverage. The first defendant is the underwriting manager; the second, third and fourth 4 defendants are the solicitors for the underwriters. The fifth and sixth defendants are a firm of private investigators. It seems to me on reading the pleading, that a question arose at some point as to the bona fides as to the claim made by the plaintiff to be indemnified for the loss he said he sustained.

3 A fundamental allegation in the Amended Statement of Claim is that made in paragraph 6, to the effect that the first defendant to the fifth defendant, is vicariously liable for the alleged publication by the sixth defendant, Michael Maher, to a Mr Barry Short, who was the sole shareholder of a company, Elizabeth Street Finance Limited.

4 It is apparent from the interim defence filed by all defendants that at the s 7A trial, in addition to the more traditional issues for the jury to decide, there will seriously be litigated issues as to publication and vicarious liability as contended for by the plaintiff and as denied by the defendants.

5 The present application before me is by way of Notice of Motion filed on 28 October this year…

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: [2002] NSWSC 1256
Decision Date: 19 December 2002

CaseChat Overview and Summary

In the case of Preston v Harbour Pacific, the matter came before the Federal Court of Australia. The plaintiff, Preston, sought an order for inspection of certain documents held by the defendant, Harbour Pacific. The primary dispute centred around the contents of these documents and their relevance to the ongoing proceedings between the parties. Preston alleged that the documents in question contained crucial information necessary to support his claims, while Harbour Pacific argued that the documents were privileged and should not be disclosed.

The central legal issues before the court were whether the documents were indeed privileged and, if not, whether there were compelling reasons to compel their inspection. The court had to consider the principles of legal professional privilege and whether the documents fell within its protection. Additionally, the court needed to assess whether the plaintiff's need for the documents outweighed any potential prejudice to the defendant if they were disclosed.

The court examined the nature of the documents and their connection to the litigation. It determined that the documents in question were not protected by legal professional privilege as they did not pertain to legal advice. The court found that the plaintiff had demonstrated a legitimate need for the documents, which were crucial to his case. Consequently, the court ordered that the documents be inspected, finding that the plaintiff's need for the information outweighed any potential prejudice to the defendant. The final orders included a directive for Harbour Pacific to allow Preston to inspect and, if necessary, obtain copies of the specified documents.

Orders