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

New South Wales District Court

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

HEARING DATE(S): 30 January 2007

JUDGMENT DATE: 1 February 2007

JURISDICTION: Civil

JUDGMENT OF: Rolfe DCJ

DECISION: 1. The Court refuses the second defendant's application to inspect documents P19 and P20.; 2. 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 Beames. This portion of P4 should be made available to the second defendant for inspection, but not the remaining portion under the date "27/9/01" and the Court so orders.; 3. Order each party to pay their own costs of the NOM.

CATCHWORDS: Claim by Plaintiffs against a firm of accountants based on misrepresentations, alleged to have been made by accountant, that the Plaintiffs had an enforceable contract to become part of a Medical Practice - Plaintiffs obtained advice prior to commencement of these proceedings from Senior Counsel about whether they had a cause of action against the Medical Practice - In the course of these proceedings, Senior Counsel's opinion was discovered to the Defendants and privilege over it waived. - Second Defendant applied to have access to documents referred to by Senior Counsel in his opinion on the basis that there was an implied waiver of privilege - Second Defendant submitted that matter ought be dealt with under the Common Law - Held that the matter should be determined under the provisions of Section 122 and Section 126 of the Evidence Act 1995 and not the Common Law - Held that the opinion of Senior Counsel could be understood on its own without the necessity of having to inspect the documents that the Second Defendant sought access to - Held further that no forensic disadvantage would, as a result, be suffered by the Second Defendant - Second Defendant's application for access to the documents therefore refused.