Manly Municipal Council v Ward [1997] NSWCA 194

Manly Municipal Council v Ward SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

POWELL and STEIN JJA 12 May 1997, 12 May 1997 [1997] NSWCA 194

Practice and Procedure — Subpoena for production of documents — Addressed to person not party to proceedings — Document produced in answer to subpoena — Access sought by party to proceedings (P2) — Access opposed by other party to proceedings (D) — Privilege — Legal professional privilege — Waiver — When imputed from conduct — Expert's report obtained by D in relation to earlier proceedings between a third party (P1) and D — Report served by D on P1 in earlier proceedings (District Court Rules Pt28 r8) — Report tendered by P1 and marked as exhibit in earlier proceedings — Claim for legal professional privilege in respect of report not available to D in later proceedings.

Powell JA By Summons filed 29 April 1997, the Claimant ("the Council") seeks leave to appeal from an Order made in the District Court by Taylor DCJ on 15 April 1997, by which Order his Honour granted to the Opponent's ("Ms Ward") counsel or solicitors, access to (inter alia) a document ("the Markham Report") which had been produced in answer to a subpoena served on a firm of solicitors ("Forsters"').

The background to the application with which, at the time, his Honour was concerned to deal, was that, in 1993, at the Manly Youth & Community Centre ("the Centre"), premises which appear to be owned, or occupied by the Council, there was held an event - seemingly called "Kangaroo Rock" - during the course of which event some 50 people, or thereabouts, sustained injury when the railing on a balcony at the Centre collapsed and they fell to the ground. It is said that some 40 or more of the people involved in that incident, have since commenced proceedings against the Council seeking to recover damages.