Mann v Carnell [1999] HCA 66

High Court of Australia Gleeson CJ, Gaudron, McHugh, Gummow, Kirby and Callinan JJ Mann v Carnell (C10/1999) [1999] HCA 66

Catchwords

Practice and procedure - Preliminary discovery - Legal professional privilege - Loss of privilege - Waiver by disclosure to third party

Australian Capital Territory - Separation of powers - Representative government - Nature of relationship between the ACT Legislative Assembly and the ACT Executive

Legislation Cited

Evidence Act 1995 Cth, ss 118, 122.

Supreme Court Rules ACT, O 34A rr 2, 5.

Australian Capital Territory (Self-Government) Act 1988 Cth.

ORDER Appeal dismissed with costs. Gleeson CJ, Gaudron, Gummow and Callinan JJ

1. The principal question in this appeal is whether legal professional privilege which attached to certain communications was lost by a subsequent disclosure of those communications.

2. The question arose in the context of an application made by the appellant, to the Supreme Court of the Australian Capital Territory, for pre-trial discovery of documents. The application was made pursuant to O 34A r 5 of the Supreme Court Rules. Order 34A is headed "Preliminary Discovery". Rule 5 provides:

If —

(a) it is reasonable to believe that the applicant has, or may have, the right to obtain relief from a person whose description has been ascertained;

(b) having made reasonable inquiries, the applicant has not gained sufficient information to enable a decision to be made whether to institute a proceeding to obtain the relief;

(c) it is reasonable to believe that the person —

(i) has, or is likely or have; or

(ii) has had, or is likely to have had;

possession of a document relating to the question whether the applicant has the right to obtain the relief; and

(d) inspection of the document by the applicant would assist in making the decision;