_Greenhill Nominees P/L & Anor v Aircraft Technicians of Australia P/L & Anor_

Supreme Court of Queensland|2001-05-19|Before: Wilson, J.

[1] WILSON J: This is an application by the defendant against the first plaintiff for further disclosure pursuant to r. 223 of the Uniform Civil Procedure Rules.

[2] The substantive proceeding relates to damage to a helicopter which crashed on the Gold Coast on 11 July 1996. It is alleged to have been owned by one or other of the plaintiffs. The defendant maintained and serviced the helicopter. The plaintiffs claim that the accident and ensuing damage were caused by the defendant's negligence and/or breach of statutory duty and/or breach of contract.

[3] The defendant's case is that the real cause of the accident was the conduct of the operator (Allan Ross) in permitting the helicopter to fly in circumstances where -

(i) in the two or three days prior to the crash the helicopter had experienced a number of "hung starts";

(ii) on the same day as the crash it had experienced an episode of uncontrolled deceleration; and

(iii) it was flown before these matters were investigated by a licensed aircraft maintenance engineer.

See amended further amended defence filed 13 November 2000 paragraph 23.

[4] It is the plaintiffs' case that before the crash there were "slow starts" but not "hung starts".

[5] The proceeding is on the supervised case list. There was an exchange of witness statements pursuant to a direction of the court. There was a mediation which was unsuccessful in resolving the dispute. The matter came on for trial before Mr Justice Douglas on 28 September 2000. The first plaintiff (which was then the only plaintiff) sought leave to amend the statement of claim by the addition of a further plaintiff making the claims in the alternative. The application was successful, but the defendant was successful in obtaining an adjournment of the trial.

[6] In support of the application for amendment, the first plaintiff tendered witness statements of Allan Ross and Royce Lanham (another pilot, and a director of the company which was bailee of the helicopter and which used it for joy flights.) In doing so, the first plaintiff waived privilege in those witness statements.

[7] In the statement so produced, Ross denied that there were "hung starts" in the days leading up to the crash. The defendant seeks disclosure and production for inspection of statements by, or documents evidencing the instructions of, the witnesses Ross and Lanham as to the function and operation of the helicopter in the period 27 June - 11 July 1996. (See paragraphs 2 and 3 of the application as amended during the course of the hearing before me.) It submits that by using the witness statements in that way, the first plaintiff waived privilege in those other documents.

[8] Subject to the question of waiver, a party is not bound to communicate evidence which it has obtained for the purpose of litigation. In Baker v Campbell [1983] HCA 39; (1983) 153 CLR 52 at 66 Gibbs CJ said: -

"... it would be a very great change in long established practice if a party were bound to reveal to the court such things as......statements taken from witnesses for the purposes of a pending action, and such a change could not be made without the fullest examination of its possible consequences."

This is a principle distinct from that which protects confidential communications between solicitor and client in which advice is sought or given: Dingle v Commonwealth Development Bank of Australia (1989) 23 FCR 63; Nagan v Holloway [1996] 1 QdR 607.

[9] In this context, waiver is not lightly to be inferred. Whether waiver should be inferred depends on whether it would unfair or misleading to allow a party to refer to or use material and to yet assert that that material, or material associated with it, is privileged from production: Attorney-General (NT) v Maurice [1986] HCA 80; (1986) 161 CLR 475. The question most commonly arises in relation to disclosure of only part of a document: does fairness require that the whole document be disclosed? In principle it may arise in relation to disclosure of one document: does fairness require that associated documents be disclosed?

[10] In support of the present application, the defendant wishes to rely on an outline of argument prepared by counsel for the first plaintiff and used at the mediation. The first plaintiff has objected to this. I uphold the objection. See s 114 of the Supreme Court of Queensland Act 1991: except where fraud is alleged, in the absence of the agreement of all parties to the dispute, evidence of what was said or done at a mediation is inadmissible.

[11] On the question of waiver, it is necessary to consider all the circumstances. See Cole v Dyer [1999] SASC 272; (1999) 74 SASR 216 per Doyle CJ. This is not a case where part of a document has been withheld; rather, the defendant is seeking the production of other documents. It is not the law that the fact that a witness is called to give evidence in a case by a party amounts to a waiver of all previous communications between that party or its solicitor and that witness; a fortiori, voluntary use of a statement in a pre-trial application does not per se amount to such waiver. The defendant is seeking the production of the documents at the pre-trial stage, rather than in an endeavour to overcome unfairness arising out of something which has happened in the course of a trial.

[12] In my view the assertion of the privilege is not misleading in the relevant sense. In Attorney-General (NT) v Kearney [1985] HCA 60; (1985) 158 CLR 500 at 515 per Gibbs CJ, with whom Mason and Brennan JJ agreed, said: -

"...Legal professional privilege will be denied to a communication which is made for the purpose of frustrating the processes of the law itself, even though no crime or fraud is contemplated."

And in Pitts v Adney (1961) 78 WN (NSW) 886 at 889 Walsh J said: -

"It cannot be permitted to put a party into the position of being able to cause a court to be deceived as to the facts by shutting out evidence which would rebut inferences upon which that party seeks to rely."

See also J A Mc Beath Nominees Pty Ltd v Jenkins Development Corporation Pty Ltd [1992] 2 QdR 121 at 134 per Ryan J.

[13] The defendant's solicitor has sworn that he has evidence that Ross had previously made statements that there were "hung starts" in the days leading up to the crash. This is a matter which the defendant can test by cross-examination at trial. It is not a basis for a finding that the assertion of privilege amounts to unfairness.

[14] In all the circumstances I refuse the application for the disclosure sought in paragraphs 2 and 3 of the application.

[15] On 13 March 1998 Yasuhiko Kuroki, a director of the plaintiff, swore an affidavit claiming privilege from disclosing documents described in a schedule as follows -

4. Statements of witnesses or potential witnesses Various

[16] The defendant seeks an order that the first plaintiff file and serve a supplementary list of documents separately describing each document referred to in categories 1 to 7 of the schedule. The assertion that these should be further identified was first made in the context of the assertion (which was ill founded) that there had been a waiver of privilege as discussed above. In a letter dated 2 October 2000 the solicitors for the defendant said: -

"The description of these documents is inadequate, in the sense that we are having difficulty identifying which of them ought now be produced for our inspection consequent upon the waiver."

[17] It is necessary only that the documents be sufficiently described to "facilitate the production of a particular document for which the privilege has been claimed, in the event, for example, of a cesser of the privilege (through, for example, publication dehors the proceedings) or should the court order production upon a ruling that the privilege does not in fact attach": Interchase Corporation Limited (in liq) v Grosvenor Hill (Queensland) Pty Ltd (No 2) [1999] 1 QdR 163 at 170 per de Jersey J. The party seeking disclosure is not entitled to have such a description as would enable the formation of a prima facie view as to the correctness of the claim of privilege. That case was decided on the old Supreme Court Rules, but the position has not been altered by the Uniform Civil Procedure Rules.

[18] In my view the description of the documents in the schedule is adequate and I decline to make the order sought in paragraph 1 of the application.

[19] The defendant seeks disclosure and production for inspection of a letter from the solicitors for the first plaintiff to its aviation surveyors and adjusters and any other documents provided by the first plaintiff to its experts by way of instructions for the giving of certain reports.

[20] On the hearing of the application it was common ground that under Order 35 of the former Supreme Court Rules, instructions given by lawyers to an expert for the purpose of preparing an expert report were protected by legal professional privilege: Interchase Corporation Limited (in liq) v Grosvenor Hill (Queensland) Pty Ltd (No 1) [1999] 1 QdR 141 at 156 per Pincus JA. The position has not been changed by the Uniform Civil Procedure Rules.

[21] I decline to make an order as sought in paragraph 6 of the application.

[22] Paragraphs 4 and 5 of the application were not pursued before me.

[23] In all the circumstances the application is dismissed. I will hear counsel on costs.

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