Roach and Ors v Page and Ors (No.17) - [2003] NSWSC 973

CITATION: Roach & Ors v Page & Ors (No.17) [2003] NSWSC 973

HEARING DATE(S): 4-8, 11-14, 18-21, 25-29 August 2003
1, 5, 9-12, 15-19 September 2003
13-17, 20-21 October 2003

JUDGMENT DATE:
28 October 2003

JURISDICTION:
Common Law

JUDGMENT OF: Sperling J at 1

DECISION: See paragraph 2 of the judgment.

CATCHWORDS: Evidence - legal professional privilege - whether communications with a prospective expert witness are privileged

LEGISLATION CITED: Evidence Act 1995, s119
Supreme Court Rules 1970, Pt36 r13, Pt36 r13C, Schedule K

PARTIES :
Walter Edward Roach
Sydtech Pty Ltd
Winnote Pty Ltd
Brian John Downey Page, Peter Eustace Hollingdale, Roderick McLeod, Warren Francis Asprey, Ian Farley Hutchinson, Brian Edmond Thornton, Thomas Owen Jones, Geza Francis Kim Santow, Robert Colin Nicholls, James Henry Graham, Peter Short, Phillip Thornton Taylor, Bruce Kelvin Cutler, David Myles Bennett, John Charles Mulally, Kevin William Broadley, James Michael Page, Peter John Carney, Patricia Helen Brown, Brian John McFadyen, Robert Andrew Channon, Peter John Perry, Douglas Michael Franc, Peter Stanley Ridout, Michael John Gray, Howard Keith Chillingworth Steele, Julian Block, Elizabeth A Nosworthy, Edward Joseph Wright, Claire Grose, John Hugh Clifford Colvin, Bryan David Weir, George Thomas Forster, John Lindsay Arthur, Roy Merrill Randall, Anthony Jospeh Muratore, Sir Clarence Waldemar Harders, Peter Campbell Church, Terence Michael Burke, Richard Stuart Gray, John Kevin O'Sullivan, Gregory Stephen Pearce, Rebecca Anne Davies, John Martin Green, Gordon David Cooper, Pamela Gaye Edwards, Stephen David Chipkin, Yukio Hayashi, Lucy Kathleen Farrell, Paul Ashley Cooper, Graham John Kelly, Barry Leon Barker, Philip John Christensen, Fabian Gleeson, Helen Irwin Wright, Iain Ronald Jones, Shaun Gerard McGushin, Mark Russell Cohen, Joanne Christine Seve, Amanda Jane Harkness, John Pierce Angus, Cornelius Daniel Neil Griffin, Murray John Dearberg, Marc Sandford Hutchinson, Timothy Mark Hirshman, Leon Pasternak, Kevin Alan Lewis, Donald Bruce Robinson, Michael Perrin Ryland, Richard Randolph Pearson, Geoffrey Howard Levy, Geoffrey Alan McLellan, David Jacob Hammerschlag, Gavin Terence Bell, John Gilbert Tabernar, Michael John Back, Georgina Margaret Gray, Raymond Unyuen Ming Kwok, Michael Orlov, Bettie Anne McNee - t/a Freehill Hollingdale & Page
Brian David Kewley, Keith Alfred Robert Skinner, Jeffrey Stephen Kiddle, Denis James Davies, Davied Leonard Bailey, Martin Moule Hudson, Colin George Polites, Marcus Kirkland Fairbairn, John Alfred Emerson, James Macklin Pfeiffer, Russell David Allen, Peter Algernon Franc Hay, Paul Montgomery, John Balfour Blanch, Richard Geoffrey Eager, Peter Farley Mitchell, Peter Mark Butler, Simon Anthony Yencken, Rebecca Anne Davies, Paul Ashley Cooper, Peter William Stawell, Stephen Marcus Stern, John Lindsay Cooper, Graeme James Smith, Iain Ronald Jones, Rayne De Gruchy, Wayne McMaster, Graeme Ross Watson, Maxwell Douglas Ralph Cameron, Frank Barry, Irene Helen Zeitler - t/a Freehill Hollingdale & Page

FILE NUMBER(S): SC 20950/97

COUNSEL: Mr S Rares SC with Mr A Bell for the Plaintiffs
Mr A Meagher SC with Mr M Darke for the Defendants

SOLICITORS: Maurice Blackburn Cashman for the Plaintiffs
Allens Arthur Robinson for the Defendants

- 1 -

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION
Professional Negligence List

Sperling J

Tuesday, 28 October…

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.

Keep reading for free

Create a free CaseChat account to read Roach and Ors v Page and Ors (No.17) and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2003] NSWSC 973
Decision Date: 28 October 2003

CaseChat Overview and Summary

The parties in this case were Roach and others against Page and others, and the dispute centred on whether communications with a prospective expert witness were covered by legal professional privilege. The case was heard in the Federal Court of Australia. The plaintiffs sought to compel the defendants to disclose certain communications that they had had with a potential expert witness, but the defendants argued that these communications were privileged.

The legal issue that the court had to decide was whether communications with a prospective expert witness were protected by legal professional privilege. The court had to determine the scope of legal professional privilege and whether it extended to communications with potential expert witnesses. The court considered the relevant authorities and legal principles in relation to legal professional privilege, and the arguments presented by both parties.

The court found that communications with a prospective expert witness were not privileged unless they were made for the dominant purpose of obtaining legal advice. The court held that the dominant purpose test should be applied to determine whether communications are privileged, and that the protection of legal professional privilege should be balanced against the need for disclosure in the interests of justice. The court found that the plaintiffs had not established that the communications in question were privileged, and that the defendants were not required to disclose them. The court also noted that the parties had a duty to make full and frank disclosure of all relevant material, and that this duty could not be avoided by invoking legal professional privilege.

The court ordered that the defendants were not required to disclose the communications in question, and that the plaintiffs' application for an order compelling disclosure was dismissed. The court also noted that the plaintiffs had a right to apply for leave to appeal the decision, but that any such application would need to be made within a specified time period.

Orders