Rayney v Aw

[2009] WASCA 203

Western Australia Court of Appeal

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Interrogate

Catchwords

1. Administrative Law
2. › Judicial review
3. › Statutory judicial review
4. › Scope of power
5. › Whether power to grant relief conditioned on establishing reviewable error
6. › Whether 'if it is just to do so' in s 36(4) confers power at large
7. › Magistrates Court Act 2004 (WA), ss 35, 36
1. Evidence
2. › Privilege
3. › Legal professional privilege
4. › Procedure for determining claims
5. › Whether court may compel disclosure of privileged material to opposing lawyers subject to confidentiality undertakings
6. › Whether privilege claim must be determined before any disclosure order
1. Evidence
2. › Privilege
3. › Legal professional privilege
4. › Scope of privilege
5. › Whether dates of communications and identities of parties ordinarily protected
6. › Whether communications with opponents ordinarily privileged

Quick Take

The Supreme Court's power under s 36(4) of the Magistrates Court Act 2004 (WA) to grant relief on judicial review is conditioned upon establishing a reviewable error under s 36(1); the words 'if it is just to do so' do not confer a power at large. A court cannot compel disclosure of information subject to a claim of legal professional privilege to the opposing party's lawyers under a confidentiality undertaking regime without first determining the validity of the privilege claim. The practice of limiting disclosure of confidential commercial information subject to undertakings (as in [name withheld] v [name withheld]) does not apply to information subject to a valid claim of legal professional privilege.