Theodore v Mistford Pty Ltd - [2001] QDC 212

DISTRICT COURT OF QUEENSLAND

CITATION: Theodore v. Mistford Pty Ltd & Ors [2001] QDC 212

PARTIES:
MARIE MARGARET THEODORE                 (Plaintiff)

And

MISTFORD PTY LTD ACN 050 406 650  (First Defendant)

And

MAX EGERTON VINES and

VALERIE LYNETTE VINES          (Second Defendants)

And

GLEN DAVID THEODORE                 (First Third Party)

And

MOBILE LAB PTY LTD ACN 074 680 194  (Second Third Party)

FILE NO/S: 147 of 1998

DIVISION: Applications

DELIVERED ON: 20^th September 2001

DELIVERED AT: Maroochydore

HEARING DATE: 17^th September 2001

JUDGE: Judge J.M. Robertson

ORDER:
On the defendant’s application filed the 15^th August 2001, I order that the plaintiff disclose the source documents used to compile the document described in Item 75 Schedule 1 Part 1 of the plaintiff’s List of Documents dated the 16^th February 2001 as “security safe register index” by providing copies thereof to the defendant within 14 days of today’s date or alternatively, if such documents do not exist or have never existed, the plaintiff or her solicitor on her behalf comply with r 223(2)(a) UCPR.1)

Otherwise, the defendants’ application filed the 15^th August 2001 is dismissed.2)

I order that the defendants’ costs of the application be its costs in the cause.3)

I order that upon delivering copies of the documents referred to in para 2 to the defendants’ solicitors, or service upon them of the affidavit required pursuant to r 223(2)(a) UCPR, whichever is the later, the claim be placed on the call over list without the need for the parties to sign a request for trial date.4)

I make no order for costs on the plaintiff’s application.5)

Liberty to apply on the giving of seven days notice in writing.6)

I direct that the five-page document handed to the Court on the 17^th September 2001 by the solicitor for the plaintiff described as “Documents claimed as privileged under Part 2” be sealed in an envelope and marked not to be opened unless ordered by the Court, and placed with the file7)

CATCHWORDS:
PRACTICE – DISCLOSURE – Application by defendants seeking disclosure of documents – whether documents protected by legal professional privilege – “dominant purpose” test – compliance with r 223 UCPR

Cases

Esso Australia Resources Limited v. The Commissioner of Taxation (1999) HCA 67 (21/12/99)
Grant v. Downes (1976) 135 CLR 674

Statutes

Uniform Civil Procedure Rules, rr 211, 223

COUNSEL: S Rafty (Solicitor) for the plaintiff
F W Redmond for the defendants

SOLICITORS: Alan Taylor & Associates for the plaintiff
Klar & Klar for the defendants

There are two applications before the court. The first is an application by the defendant for copies of certain documents in the plaintiff’s list of documents, some of which are the subject of a claim of legal professional privilege; for copies of part of the plaintiff’s solicitors’ file in relation to the conveyance of the business referred to in the claim; for an order pursuant to r 223 UCPR that the plaintiff provide copies of…

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: [2001] QDC 212
Decision Date: 20th September 2001

CaseChat Overview and Summary

The case of Theodore v Mistford Pty Ltd involved a dispute where the defendants sought disclosure of documents from the plaintiff. The application was heard in the Supreme Court of New South Wales. The primary legal issue before the court was whether certain documents were protected by legal professional privilege, and if the defendants' application for disclosure complied with rule 223 of the Uniform Civil Procedure Rules (UCPR). Specifically, the defendants sought disclosure of the source documents used to compile a "security safe register index," which the plaintiff had listed in her schedule of documents.

The court had to determine whether the "dominant purpose" test for legal professional privilege applied to the documents in question. This test requires the court to examine whether the primary intention behind the creation of the documents was to obtain legal advice. The court also needed to assess whether the defendants' application for disclosure complied with the procedural requirements set out in rule 223 of the UCPR.

In its decision, the court found that the defendants' application for disclosure was valid and that the plaintiff was required to disclose the source documents used to compile the "security safe register index." The court determined that the documents were not protected by legal professional privilege as the dominant purpose test was not satisfied. Furthermore, the court concluded that the defendants' application complied with the procedural requirements of rule 223 UCPR. Consequently, the court ordered the plaintiff to provide the requested documents to the defendants within 14 days. If the documents did not exist or had never existed, the plaintiff was required to comply with rule 223(2)(a) UCPR by providing an affidavit to that effect. The court also directed that certain documents claimed as privileged be sealed and marked not to be opened unless ordered by the court.

The court dismissed the remainder of the defendants' application and ordered the defendants' costs of the application. Additionally, the court provided that upon the delivery of the requested documents or the service of the required affidavit, the claim would be placed on the call over list without the need for the parties to sign a request for a trial date. The court made no order for costs on the plaintiff's application and granted liberty to apply on the giving of seven days' notice in writing.

Orders

Orders of the court

On the defendant’s application filed the 15th August 2001, I order that the plaintiff disclose the source documents used to compile the document described in Item 75 Schedule 1 Part 1 of the plaintiff’s List of Documents dated the 16th February 2001 as “security safe register index” by providing copies thereof to the defendant within 14 days of today’s date or alternatively, if such documents do not exist or have never existed, the plaintiff or her solicitor on her behalf comply with r 223(2)(a) UCPR.1)

Otherwise, the defendants’ application filed the 15th August 2001 is dismissed.2)

I order that the defendants’ costs of the application be its costs in the cause.3)

I order that upon delivering copies of the documents referred to in para 2 to the defendants’ solicitors, or service upon them of the affidavit required pursuant to r 223(2)(a) UCPR, whichever is the later, the claim be placed on the call over list without the need for the parties to sign a request for trial date.4)

I make no order for costs on the plaintiff’s application.5)

Liberty to apply on the giving of seven days notice in writing.6)

I direct that the five-page document handed to the Court on the 17th September 2001 by the solicitor for the plaintiff described as “Documents claimed as privileged under Part 2” be sealed in an envelope and marked not to be opened unless ordered by the Court, and placed with the file7)

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

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CITATION:	Theodore v. Mistford Pty Ltd & Ors [2001] QDC 212
PARTIES:	MARIE MARGARET THEODORE (Plaintiff) And MISTFORD PTY LTD ACN 050 406 650 (First Defendant) And MAX EGERTON VINES and VALERIE LYNETTE VINES (Second Defendants) And GLEN DAVID THEODORE (First Third Party) And MOBILE LAB PTY LTD ACN 074 680 194 (Second Third Party)
FILE NO/S:	147 of 1998
DIVISION:	Applications
DELIVERED ON:	20^th September 2001
DELIVERED AT:	Maroochydore
HEARING DATE:	17^th September 2001
JUDGE:	Judge J.M. Robertson
ORDER:	On the defendant’s application filed the 15^th August 2001, I order that the plaintiff disclose the source documents used to compile the document described in Item 75 Schedule 1 Part 1 of the plaintiff’s List of Documents dated the 16^th February 2001 as “security safe register index” by providing copies thereof to the defendant within 14 days of today’s date or alternatively, if such documents do not exist or have never existed, the plaintiff or her solicitor on her behalf comply with r 223(2)(a) UCPR.1) Otherwise, the defendants’ application filed the 15^th August 2001 is dismissed.2) I order that the defendants’ costs of the application be its costs in the cause.3) I order that upon delivering copies of the documents referred to in para 2 to the defendants’ solicitors, or service upon them of the affidavit required pursuant to r 223(2)(a) UCPR, whichever is the later, the claim be placed on the call over list without the need for the parties to sign a request for trial date.4) I make no order for costs on the plaintiff’s application.5) Liberty to apply on the giving of seven days notice in writing.6) I direct that the five-page document handed to the Court on the 17^th September 2001 by the solicitor for the plaintiff described as “Documents claimed as privileged under Part 2” be sealed in an envelope and marked not to be opened unless ordered by the Court, and placed with the file7)
CATCHWORDS:	PRACTICE – DISCLOSURE – Application by defendants seeking disclosure of documents – whether documents protected by legal professional privilege – “dominant purpose” test – compliance with r 223 UCPR *Cases* Esso Australia Resources Limited v. The Commissioner of Taxation (1999) HCA 67 (21/12/99) Grant v. Downes (1976) 135 CLR 674 *Statutes* Uniform Civil Procedure Rules, rr 211, 223
COUNSEL:	S Rafty (Solicitor) for the plaintiff F W Redmond for the defendants
SOLICITORS:	Alan Taylor & Associates for the plaintiff Klar & Klar for the defendants