Court of Appeal (Qld)|2001-08-18|Before: McPherson and Williams JJA, Ambrose JSeparate reasons for judgment of, each member of the Court, each concurring as to the orders made.
McPherson and Williams JJA, Ambrose JSeparate reasons for judgment of, each member of the Court, each concurring as to the orders made.
Catchwords
PROCEDURE – DISCOVERY AND INTERROGATORIES – DISCOVERY AND
INSPECTION OF DOCUMENTS – PRODUCTION AND INSPECTION –
GROUNDS FOR
RESISTING PRODUCTION – LEGAL PROFESSIONAL PRIVILEGE - WHAT CONSTITUTES
Source
Original judgment source is linked above.
Catchwords
PROCEDURE – DISCOVERY AND INTERROGATORIES – DISCOVERY ANDINSPECTION OF DOCUMENTS – PRODUCTION AND INSPECTION –GROUNDS FORRESISTING PRODUCTION – LEGAL PROFESSIONAL PRIVILEGE - WHAT CONSTITUTES– GENERALLY – whether privilegeapplies where adviser legallyqualified but not admitted to practice – where recipient reasonablybelieved the communicationwas privileged – where person giving advice isa chartered accountant who works for an accounting firmEVIDENCE –FACTS EXCLUDED FROM PROOF – ON GROUNDS OF PRIVILEGE – PROFESSIONALCONFIDENCE – LEGAL PROFESSION– GENERAL PRINCIPLES EVIDENCE– FACTS EXCLUDED FROM PROOF – ON GROUNDS OF PRIVILEGE – OTHERCASES – whether without prejudice privilegeapplies – privilege onlyapplies to admissions made in the course of negotiating a settlement –appellant had not establishedthat these were settlementnegotiationsPROFESSIONS AND TRADES – LAWYERS – UNQUALIFIED
PERSONS AND DISQUALFIED PRACTITIONERS – IN GENERAL
Alfred Crompton Amusement Machines Ltd v Customs and Excise
Commissioners (No 2) [1972] 2 QB 102, considered
Attorney-General (NT) v Kearney [1985] HCA 60
(1985) 158 CLR 500, considered
Baker v Campbell [1983] HCA 39
(1983) 153 CLR 52, followed
Butler v Countrywide Finance Ltd (1992) 5 PRNZ 447, considered
Calley v Richards (1854)19 Beav 401[1854] EngR 734
, 52 ER 406, considered
Chantrey Martin (a firm) v Martin [1953] 2 QB 286, considered
Citibank Ltd, Re: [1989] 1 Qd R 516, considered
City Realties (Rural) Ltd v Wilson Neill Ltd (1996) 9 PRNZ 562,
considered
Daintrey, Re: ex parte Holt [1893] 2 QB 116, considered
Field v Commissioner for Railways (NSW) [1957] HCA 92
(1957) 99 CLR 285,
followedGrant v Downs [1976] HCA 63
(1976) 135 CLR 674, considered
Grofam Pty Limited v ANZ Banking Group Limited [1993] FCA 501
(1993) 45 FCR 445,
considered
GPI Leisure Corporation Ltd v Yuill (1997) 42 NSWLR 225,
citedHarrington v Lowe (1996) 190 CLR 311, considered
Hong Kong Bank of Australia Ltd v Murphy (1992) 28 NSWLR 512,
approvedRodgers v Rodgers (1964) 114 CLR 608, considered
Rush & Tompkins Ltd v Greater London Council [1988] UKHL 7
[1989]
AC 1280, considered
Trade Practices Commission v Arnotts Ltd [1989] FCA 283
(1989) 88 ALR 69,
cited
Village/Nine Network Restaurants & Bars Pty Ltd v Mercantile Mutual
Custodians Pty Ltd [1999] QCA 420
Appeal No 9315 of 1998, 12 October 1999,
consideredWaterford v Commonwealth [1987] HCA 25
(1987) 163 CLR 54,
considered
Judgment (15 paragraphs)
[1]
PROCEDURE - DISCOVERY AND INTERROGATORIES - DISCOVERY AND INSPECTION OF DOCUMENTS - PRODUCTION AND INSPECTION - GROUNDS FOR RESISTING PRODUCTION - LEGAL PROFESSIONAL PRIVILEGE - WHAT CONSTITUTES - GENERALLY - whether privilege applies where adviser legally qualified but not admitted to practice - where recipient reasonably believed the communication was privileged - where person giving advice is a chartered accountant who works for an accounting firm
[2]
EVIDENCE - FACTS EXCLUDED FROM PROOF - ON GROUNDS OF PRIVILEGE - PROFESSIONAL CONFIDENCE - LEGAL PROFESSION - GENERAL PRINCIPLES
[3]
EVIDENCE - FACTS EXCLUDED FROM PROOF - ON GROUNDS OF PRIVILEGE - OTHER CASES - whether without prejudice privilege applies - privilege only applies to admissions made in the course of negotiating a settlement - appellant had not established that these were settlement negotiations
[4]
PROFESSIONS AND TRADES - LAWYERS - UNQUALIFIED PERSONS AND DISQUALFIED PRACTITIONERS - IN GENERAL
Harrington v Lowe(1996) 190 CLR 311, considered Hong Kong Bank of Australia Ltd v Murphy (1992) 28 NSWLR 512, approved
[8]
Rodgers v Rodgers(1964) 114 CLR 608, considered Rush & Tompkins Ltd v Greater London Council[1988] UKHL 7; [1989] AC 1280, considered Trade Practices Commission v Arnotts Ltd[1989] FCA 283; (1989) 88 ALR 69, cited Village/Nine Network Restaurants & Bars Pty Ltd v Mercantile Mutual Custodians Pty Ltd[1999] QCA 420; Appeal No 9315 of 1998, 12 October 1999, considered
D R Cooper SC, with C L Francis for the appellants in Appeal No 8963 of 2000 and for the appellant in Appeal No 8964 of 2000
[11]
J Marschke (sol.) for the first respondent in Appeal No 8963 of 2000
[12]
P A Keane QC, with S S W Couper QC for the second respondents in Appeal No 8963 of 2000 and for the first and second respondents in Appeal No 8964 of 2000
[13]
Lees Marshall Warnick for the appellants in Appeal No 8963 of 2000 and for the appellant in Appeal No 8964 of 2000
[14]
Clayton Utz for the first respondent in Appeal No 8963 of 2000
[15]
Gadens Lawyers for the second respondents in Appeal No 8963 of 2000 and for the first and second respondents in Appeal No 8964 of 2000