TSALLIS -v- SCHOFIELD [2012] WASC 231

Link to Appeal :

[2013] WASCA 138

Jurisdiction:	SUPREME COURT OF WESTERN AUSTRALIA	Citation No:	[2012] WASC 231
Case No:	CIV:1483/2007	Heard:	3-4 APRIL 2012
Coram:	KENNETH MARTIN J	Delivered:	2/07/12
No of pages:	29	Judgment Part:	1 of 1
Result:	Privilege upheld Inspection refused
Category:	A
PDF Version

Parties:	VASILIS TSALLIS GEORGIA TSALLIS GREGORY RONALD RUSHTON HONEY RUSHTON ALLAN BARTHOLOMEW VERONIKA RIEGEL CLAIRE ASTRID GROCKE BRIAN HALL ERIKA HALL DESMOND PETER SEERY SARA LOUISE SEERY TERENCE RICHARD GROCKE EDEL GROCKE MARK BONSER SYLVIA GWEN KELLY IQBAL SAMNAKAY NEELAM ISMAIL SAMNAKAY PETER NOEL WINN PAMELA MAY WINN TODD MATHEW MOUNTFORD KATHLEEN DAWN EVANS RONALD McINERNEY VERNON SCHOFIELD CHRISTINE SCHOFIELD
Catchwords:	Privilege Without prejudice Objection to inspection Voir dire Waiver Use of documents in prior proceedings
Legislation:	Fair Trading Act 1987 (WA)
Case References:	C v M [2011] WASC 175 Field v Commissioner for Railways (NSW) [1957] HCA 92; (1957) 99 CLR 285 JA McBeath Nominees Pty Ltd v Jenkins Development Corporation Pty Ltd [1992] 2 Qd R 121 Mann v Carnell [1999] HCA 66; (1999) 201 CLR 1 Mitchell v Schofield [2007] WASC 303 Ofulue v Bossert [2009] 1 AC 990 Pihiga Pty Ltd v Roche [2011] FCA 240; (2011) 278 ALR 209 Rush & Tompkins Ltd v Greater London Council [1989] 1 AC 1280 Unilever plc v Procter & Gamble Co [2000] 1 WLR 2436 Yokogawa Australia Pty Ltd v Alstom Power Ltd [2009] SASC 377; (2009) 262 ALR 738

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

IN CHAMBERS

CITATION : TSALLIS -v- SCHOFIELD [2012] WASC 231 CORAM : KENNETH MARTIN J HEARD : 3-4 APRIL 2012 DELIVERED : 2 JULY 2012 FILE NO/S : CIV 1483 of 2007 BETWEEN : VASILIS TSALLIS

GEORGIA TSALLIS

First Plaintiffs

GREGORY RONALD RUSHTON

HONEY RUSHTON

Second Plaintiffs

ALLAN BARTHOLOMEW

VERONIKA RIEGEL

Third Plaintiffs

CLAIRE ASTRID GROCKE

Fourth Plaintiff

BRIAN HALL

ERIKA HALL

Fifth Plaintiffs

DESMOND PETER SEERY

SARA LOUISE SEERY

Sixth Plaintiffs

TERENCE RICHARD GROCKE

EDEL GROCKE

Seventh Plaintiffs

MARK BONSER

Eighth Plaintiff

SYLVIA GWEN KELLY

Ninth Plaintiff

IQBAL SAMNAKAY

NEELAM ISMAIL SAMNAKAY

Tenth Plaintiffs

PETER NOEL WINN

PAMELA MAY WINN

Eleventh Plaintiffs

TODD MATHEW MOUNTFORD

KATHLEEN DAWN EVANS

Twelfth Plaintiffs

RONALD McINERNEY

Thirteenth Plaintiff

AND

VERNON SCHOFIELD

CHRISTINE SCHOFIELD

Defendants

Catchwords:

Privilege - Without prejudice - Objection to inspection - Voir dire - Waiver - Use of documents in prior proceedings

Legislation:

Fair Trading Act 1987 (WA)

Result:

Privilege upheld

Inspection refused

Category: A

Representation:

Counsel:

First Plaintiffs : No appearance

Second Plaintiffs : No appearance

Third Plaintiffs : No appearance

Fourth Plaintiff : No appearance

Fifth Plaintiffs : No appearance

Sixth Plaintiffs : No appearance

Seventh Plaintiffs : No appearance

Eighth Plaintiff : No appearance

Ninth Plaintiff : No appearance

Tenth Plaintiffs : Dr P R MacMillan

Eleventh Plaintiffs : No appearance

Twelfth Plaintiffs : No appearance

Thirteenth Plaintiff : No appearance

Defendants : Mr M G Pendlebury

Solicitors:

First Plaintiffs : Stables Scott

Second Plaintiffs : Stables Scott

Third…

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.

Continue reading Tsallis v Schofield

Details

AGLC: Tsallis v Schofield [2012] WASC 231
Case: [2012] WASC 231
Decision Date: 2 JULY 2012

CaseChat Overview and Summary

The matter before the court involved a dispute between Tsallis and Schofield, where Tsallis sought to prevent Schofield from inspecting certain documents on the grounds of privilege. The case was heard in the Federal Court of Australia, with the central issue being whether these documents were protected by legal professional privilege, thereby barring their inspection and use in the current proceedings. The court was required to determine whether the documents in question were indeed privileged and whether any waiver of privilege had occurred.

The legal issues that the court had to address included the nature and extent of legal professional privilege, specifically without prejudice communications, and whether any such privilege had been waived by the parties' conduct in previous proceedings. The court had to examine whether the documents were prepared for the dominant purpose of litigation and whether any waiver of privilege had occurred through the disclosure or use of these documents in prior proceedings. Additionally, the court needed to consider the principles surrounding the admissibility of without prejudice communications and the exceptions to privilege.

In delivering the judgment, the court found that the documents in question were indeed protected by legal professional privilege, as they were prepared for the dominant purpose of litigation and contained without prejudice communications. The court noted that without prejudice communications are generally privileged, and privilege is not waived merely because such communications are referred to in court proceedings or other documents. The court also held that there was no evidence of a clear and unequivocal waiver of privilege by the parties' conduct in the prior proceedings. Consequently, the court upheld the privilege and refused the inspection of the documents in the current proceedings. The court's ruling was grounded in the protection of the legal process and the necessity to maintain confidentiality in legal advice.

Orders

Orders of the court

Privilege upheld

Inspection refused

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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