Suttram Pty Limited v Michelin Australia Pty Limited

[2009] NSWDC 156

CITATION:	Suttram Pty Limited v Michelin Australia Pty Limited [2009] NSWDC 156
JUDGMENT DATE:	16 February 2009
JURISDICTION:	District Court of New South Wales
JUDGMENT OF:	Cogswell SC DCJ
DECISION:	Access to documents granted.
CATCHWORDS:	CIVIL LAW - Application for access to documents - privilege - acess reasonably necessary to enable proper understanding of document tendered
LEGISLATION CITED:	Evidence Act 1995 s 126
CASES CITED:	Sugden v Sugden (2007) 49 MVR 96 Towney v Minister for Land and Water Conservation (NSW) (1997) 76 FCR 401
PARTIES:	Suttram Pty Limited Michelin Australia Pty Limited Michelin Australia
FILE NUMBER(S):	4530/06
COUNSEL:	Mr Sharpe (Plaintiff) Mr Vincent (2nd Defendant)

JUDGMENT

1 After a judgment I delivered on 14 November 2008 the solicitors for the plaintiff produced a document. The document was an email from the plaintiff's insurer to the plaintiff's solicitors dated 27 October 2005.

2 Mr Vincent of counsel for the second defendant relies on s 126 of the Evidence Act 1995 to argue that privilege will not prevent adducing evidence of certain other documents. Those other documents are ones referred to in the affidavit of Tony James Bates sworn 29 November 2008. They are the documents contained in schedule D in para 7. Although privileged at this stage, Mr Vincent argues that those documents in schedule D are no longer protected by the Evidence Act's provisions about privilege because they are documents which it is reasonably necessary to see to enable a proper understanding of one of the documents produced by the plaintiff after my ruling on 14 November 2008. The document produced then was tendered on this application and marked exhibit VDA and is, as I have said, an email from the plaintiff's insurer to the plaintiff's solicitor dated 27 October 2005.

3 Mr Vincent refers to a passage in that email which notes a suggestion that:

"There is much uncertainty re expert evidence in this matter and we note it has taken some time to get the right expert to say the right things".

Mr Vincent points to the documents in schedule D and argues that they obviously represent efforts by the plaintiff's solicitors to secure the services of an expert witness. In addition, I should add, he says that the documents in schedule F to Mr Bates' affidavit numbered (i) through to (vi) inclusive fall into the same category. Those documents in schedule F and all the documents in schedule D represent various forms of communication between the plaintiff's solicitors and Unisearch. Unisearch is an organisation which services the legal profession by giving advice about expert witnesses available in various fields.

4 Mr Vincent argues that the correspondence in schedule D and the relevant correspondence in schedule F clearly represent the efforts referred to in exhibit VDA as "getting the right expert to say the right things". The correspondence ranges over time from 1 April 2003 to 9 March 2004. That would be consistent with it having "taken some time".

5 Section 126 provides that documents are not protected by the privilege provisions of the Evidence Act "if it is reasonably necessary to enable a proper understanding of the communication or document", which had been previously produced. The expression "proper understanding" was considered by Sackville J in the Federal Court in Towney v Minister for Land and Water Conservation (NSW) (1997) 76 FCR 401. His Honour, by reference to the Macquarie Dictionary, noted the meaning of "proper" includes "complete or thorough" and "understand" includes "to apprehend clearly the character or nature of" and "to grasp the significance, implications or importance of". His Honour went on to say:

"However, I think it fair to say that, if a privileged document is voluntarily disclosed for forensic purposes, and a thorough apprehension or appreciation of the character, significance or implications of that document requires disclose of source documents, otherwise protected by client legal privilege, ordinarily the test laid down by s 126 of the Evidence Act will be satisfied."

Those remarks were referred to with approval by the Court of Appeal in this State in Sugden v Sugden (2007) 49 MVR 96.

6 In my opinion, it is reasonably necessary for a thorough apprehension of the significance or implications of the passage in exhibit VDA referred to by Mr Vincent, for Mr Vincent to see the documents contained in schedule D and the first six documents referred to in schedule F of Mr Bates' affidavit of 29 October 2008.

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