AMPOLEX LIMITED v PERPETUAL TRUSTEE COMPANY (CANBERRA) LIMITED [1996] NSWCA 14

AMPOLEX LIMITED v PERPETUAL TRUSTEE COMPANY (CANBERRA) LIMITED

SUPREME COURT OF NEW SOUTH WALES — COURT OF APPEAL

MAHONEY P, MEAGHER JA and COLE JA 20 May 1996 [1996] NSWCA 14

PRACTICE AND PROCEDURE — Leave to appeal from ruling on admissibility of evidence — Whether an order or judgment — Supreme Court Act 1970, s 101

COURTS AND JUDGES — Court of Appeal — Leave applications — Whether duty to give reasons for refusing leave — Usual practice not to give reasons — Discretion in refusing leave.

Application for leave to appeal - Long hearing in Commercial Division of Supreme Court - Tender of documents pursuant to notice to produce - Objection to access to documents on grounds of legal professional privilege - Ruling by trial judge that documents admissible because privilege, if it existed, waived - Application to Court of Appeal for leave to appeal from ruling on admissibility of evidence - Whether ruling constitutes an order or judgment pursuant to Supreme Court Act 1970, s 101. Nature of material sought to be disclosed - Whether prejudicial to relevant party - Discretion. National Employers Mutual General Insurance Association Ltd v Manufacturers Mutual Insurance Ltd (1988) 17 NSWLR 223; Smith v Tabain (1987) 10 NSWLR 562; Commonwealth v Mullane (1961) 106 CLR 166; Hall v Braybrook (1956) 95 CLR 620; R v Rogers (1994) 181 CLR 251; Legal Practitioners Complaints Committee v A Practitioner (1987) 46 SASR 126; considered.

Court of Appeal practice and procedure in leave applications - Giving of reasons for refusing leave - Usual practice.

Mahoney P. The present application comes before the Court in circumstances to which reference has been made in my judgment of 16 May 1996 and I shall not repeat them. Stated very briefly, the matter from which this arises is presently being heard by Rolfe J. It is in the course of a long hearing. In the course of the hearing a question arose as to the tender of certain documents. Documents were produced pursuant to a notice to produce. Counsel sought access to them and to use them. Objection was taken to the access and/or the use of them and the objection was placed upon the ground of legal professional privilege. Rolfe J ruled that the privilege if it existed had been waived. Counsel cross-examining, Mr Gyles QC, then tendered the notice to produce and the envelope in which the documents were contained. Objection was taken to the tender on behalf of Ampolex and the judge admitted the documents into evidence. It is from what happened at that time that application has been made on behalf of Ampolex for leave to appeal to this Court.