Dubbo City Council v Patrick Joseph Barrett [2003] NSWCA 267

New South Wales Court of Appeal

CITATION : Dubbo City Council v Patrick Joseph Barrett [2003] NSWCA 267 HEARING DATE(S) : 9 September 2003 JUDGMENT DATE : 24 September 2003

JUDGMENT OF : Tobias JA at 1; Young CJ in Eq at 2; Davies AJA at 24 DECISION : Appeal dismissed with costs

CATCHWORDS : The respondent was injured at Dubbo cattle saleyards, which are operated by the appellant. He commenced an action against his employers, Elders and the Council. The respondent and Elders settled. The appellant then called for production of the medical reports served by Elders on the respondent. The Plaintiff claimed legal privilege and would only produce them if ordered to do so by the Court. The trial judge held that the documents were privileged. - EVIDENCE - ss 121, 122 Evidence Act 1995 - privilege - whether privilege waived when medical expert reports served - when is privilege waived? Obligations under SCR Pt 36(13) and (13A) - ND Evidence Act 1995 ss121, 122 LEGISLATION CITED : District Court Rules Supreme Court Rules 1970 - Part 36 r 13 and r 13A(3) Thomason v Campbelltown MC (1939) 39 SR (NSW) 347 Mann v Carnell (1999) 201 CLR 1 Esso Australia Resources Ltd v Commissioner of Taxation (1999) 201 CLR 49 Akins v Abigroup Ltd (1998) 43 NSWLR 539 CASES CITED : The Bell Group Ltd v Westpac Banking Corporation (1998) 86 FCR 215 Sevic v Roarty (1998) 44 NSWLR 287 Home Office v Harmann (1983) 1 AC 280 In re Margetson and Jones (1897) 2 Ch 314 Barristers' Board of Western Australia v Tranter Corp Pty Ltd (1976) WAR 65 Austress Freyssinet Pty Ltd v Marlin International Pty Ltd [2002] NSWSC 958 PARTIES : Dubbo City Council Patrick Joseph Barrett FILE NUMBER(S) : CA 40511/03 C - R Sheldon COUNSEL : 1R - M J Cranitch SC / M Inglis 2R - P Morris C - Phillips Fox SOLICITORS : 1R - Commins Hendriks 2R - Moray & Agnew