Dubbo City Council v Patrick Joseph Barrett [2003] NSWCA 267

Dubbo City Council v Patrick Joseph Barrett [2003] NSWCA 267

The appeal was dismissed because Elders' service of the medical reports on the plaintiff did not waive privilege as against the Council. The disclosure was treated, consistently with Akins v Abigroup Ltd, as disclosure under compulsion of law, so privilege was not lost under s 122(2)(c) of the Evidence Act 1995. Even if that were not so, disclosure to the plaintiff alone was not necessarily a waiver as against the Council.

Jurisdiction
Australia
Judgment Date
24 September 2003
Procedural Posture
Civil Appeal Concerning Privilege Over Medical Expert Reports / Appeal Pursuant to Leave From an Interlocutory Judgment of Acting Justice Newman Upholding Elders Limited's Claim of Privilege
Outcome
Appeal dismissed with costs.
Legal Topics
['evidence Act 1995 Ss 121 and 122' 'waiver of Privilege' 'expert Medical Reports' 'supreme Court Rules 1970 Pt 36 R 13 and R 13 A(3)' 'disclosure Under Compulsion of Law']
['evidence' 'civil Procedure' 'legal Professional Privilege'] ['evidence Act 1995 Ss 121 and 122' 'waiver of Privilege' 'expert Medical Reports' 'supreme Court Rules 1970 Pt 36 R 13 and R 13 A(3)' 'disclosure Under Compulsion of Law']

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Procedural Posture

Civil Appeal Concerning Privilege Over Medical Expert Reports / Appeal Pursuant to Leave From an Interlocutory Judgment of Acting Justice Newman Upholding Elders Limited's Claim of Privilege

Legal Issues

  1. 1 ['Whether Elders Limited waived privilege in medical expert reports by serving them on the plaintiff but not on the Council.' 'Whether service of expert reports under Supreme Court Rules 1970 Pt 36 r 13A(3) was disclosure under compulsion of law so that privilege was not lost under s 122(2)(c) of the Evidence Act 1995.' 'Whether the Council was entitled to production of the reports after judgment was entered for Elders Limited.']

Ratio Decidendi

The appeal was dismissed because Elders' service of the medical reports on the plaintiff did not waive privilege as against the Council. The disclosure was treated, consistently with Akins v Abigroup Ltd, as disclosure under compulsion of law, so privilege was not lost under s 122(2)(c) of the Evidence Act 1995. Even if that were not so, disclosure to the plaintiff alone was not necessarily a waiver as against the Council.

Court Disposition

Appeal dismissed with costs.

Orders

  • ['Appeal dismissed with costs']