Dr Geoffrey Cocker v Dennis O'Connor Pty Ltd [2007] NSWDC 4

Dr Geoffrey Cocker v Dennis O'Connor Pty Ltd [2007] NSWDC 4

The application was governed by the Evidence Act 1995, not the common law. Having read Mr Meagher SC's opinion and documents P19 and P20, the Court held that the opinion could be understood on its own without inspection of P19 and P20, so the second defendant would suffer no forensic disadvantage and inspection should be refused. After inspecting P2-P18, the Court held that those documents were privileged except for the part of P4 dated "26/9/01" referring to a telephone conversation between the plaintiffs' solicitor and Mr Beames.

Jurisdiction
Australia
Judgment Date
01 February 2007
Procedural Posture
Civil Proceedings Involving Claims Based on Alleged Misrepresentations, Negligence and Breach of Contract / Second Defendant's Notice of Motion for Leave to Inspect Documents Over Which Privilege Was Claimed
Outcome
Second defendant's application to inspect documents P19 and P20 refused; documents P2-P18 held privileged except for part of P4; each party ordered to pay its own costs of the Notice of Motion.
Legal Topics
['implied Waiver of Privilege' 'inspection of Subpoenaed and Discovered Documents' "associated Material Referred to in Counsel's Opinion" 'uniform Civil Procedure Rules and Evidence Act 1995']
['evidence' 'civil Procedure' 'legal Professional Privilege'] ['implied Waiver of Privilege' 'inspection of Subpoenaed and Discovered Documents' "associated Material Referred to in Counsel's Opinion" 'uniform Civil Procedure Rules and Evidence Act 1995']

Case Brief

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Procedural Posture

Civil Proceedings Involving Claims Based on Alleged Misrepresentations, Negligence and Breach of Contract / Second Defendant's Notice of Motion for Leave to Inspect Documents Over Which Privilege Was Claimed

Legal Issues

  1. 1 ["Whether waiver of privilege over Senior Counsel's opinion impliedly waived privilege over documents P19 and P20 referred to or relied upon in preparing that opinion." 'Whether the application should be determined under the common law or under ss 122 and 126 of the Evidence Act 1995.' "Whether inspection of documents P19 and P20 was reasonably necessary for a proper understanding of Senior Counsel's opinion." 'Whether documents P2-P18 were privileged.']

Ratio Decidendi

The application was governed by the Evidence Act 1995, not the common law. Having read Mr Meagher SC's opinion and documents P19 and P20, the Court held that the opinion could be understood on its own without inspection of P19 and P20, so the second defendant would suffer no forensic disadvantage and inspection should be refused. After inspecting P2-P18, the Court held that those documents were privileged except for the part of P4 dated "26/9/01" referring to a telephone conversation between the plaintiffs' solicitor and Mr Beames.

Court Disposition

Second defendant's application to inspect documents P19 and P20 refused; documents P2-P18 held privileged except for part of P4; each party ordered to pay its own costs of the Notice of Motion.

Orders

  • ["The Court refuses the second defendant's application to inspect documents P19 and P20." 'In regard to documents P2 – P18, the Court concludes that these documents are privileged with the exception of that part of P4 dated "26/9/01" referring to a telephone conversation between the plaintiffs\' solicitor and Mr...