Grant v Downs [1976] HCA 63

High Court of Australia Barwick C.J. Stephen, Mason, Jacobs and Murphy JJ. Grant v Downs [1976] HCA 63

ORDER Appeal allowed with costs. Order of the Supreme Court of New South Wales (Court of Appeal Division) set aside and in lieu thereof order that the application for leave to appeal to that Court be granted with costs and that the appeal to that Court be allowed with costs, order of Rath J. set aside and in lieu thereof order that the appeal to that Court be allowed with costs and order that the respondent produce within fourteen days for the inspection of the appellant the documents described in the notice of motion filed on 21st November 1973. Respondent to pay appellant's costs of motion heard before the Master of that Court.

Cur. adv. vult.

The following written judgments were delivered:—

Nov. 26 Barwick C.J.

The circumstances in which this appeal comes before this Court are to be found in the reasons for judgment of other members of the Court. The decision of the particular question arising in this case involves a consideration of the appropriate terms of a statement of the principle to be applied in Australia in deciding whether a document is excluded from inspection by reason of "professional privilege". There is no such statement of authority binding the courts in Australia. The matter has been discussed in cases decided in England and in articles in legal journals. But no authoritatively accepted statement of principle has emerged. The matter, in my opinion, has not significantly advanced in English decisions beyond the judgments of the Court of Appeal in Birmingham and Midland Motor Omnibus Co. Ltd. v. London and North Western Railway Co. [6] . In that case, the predominant view was that expressed by Buckley L.J., but a substantially different opinion was expressed by Hamilton L.J. I shall say something of these views but the question of principle and its statement for Australia are not to be resolved by merely making a choice between the two views expressed in that case. The matter for our decision is the content of a statement of relevant principle appropriate to the conduct of litigation in this country. That should be approached, in my opinion, upon the premise that it is necessary in the public interest that professional privilege should be recognized and enforced. That there is occasion for excluding from inspection documents which fall within that privilege cannot, in my opinion, be denied. There is no need, in my opinion, presently to explore or express the basis or justification for the existence of the privilege. Its necessity should be accepted. The problem is to determine and state the relevant principle to operate in Australia. In this connexion, such guidance as may be found in the decisions of the English courts should be accepted: and our decisions should be consonant with the development of the common law.