Rankilor v City of South Perth

The appeal involved Rankilor, the appellant, and the City of South Perth, the respondent. The dispute arose from an application for particular discovery in which the appellant sought documents held by the respondent. The case was heard in the Supreme Court of Western Australia. The appellant argued that the primary judge was not in a position to be fairly certain that the documents existed, and therefore, an order for discovery should be made. The appellant also argued that the documents in question were protected by legal professional privilege.

The court needed to decide whether the primary judge was correct in determining that the appellant could not establish the existence of the documents with sufficient certainty. Additionally, the court had to consider the applicability of legal professional privilege to the documents in question, specifically an assessor's report commissioned by the respondent's insurer and provided to the respondent's solicitor. The court also needed to determine whether the subpoena should be used as a substitute for discovery.

The court found that the primary judge was correct in his assessment that the appellant had not demonstrated the existence of the documents with sufficient certainty. The court held that the appellant had not provided enough information to convince the court that the documents existed. Regarding legal professional privilege, the court found that the privilege was not waived as the assessor's report was provided to the respondent's solicitor for the purpose of obtaining legal advice. The court emphasised that a subpoena should not be used as a substitute for discovery, and the appellant had not demonstrated that discovery was necessary in this case. The appeal was dismissed.