(including representation in legal proceedings): Schreuder v Murray [No 2] [2009]
WASCA 145; (2009) 41 WAR 169 (Schreuder) at [58], citing Daniels Corporation
International Pty Ltd v Australian Competition and Consumer
Commission [2002] HCA 49; (2002) 213 CLR 543 at [9] - [11] and Esso Australia
Resources Limited v Federal Commissioner of Taxation [1999] HCA 67; (1999)
201 CLR 49 at [35], [61] and [62].
71. Legal professional privilege is commonly considered under two categories, namely legal
advice privilege (confidential communications made for the dominant purpose of giving
or receiving legal advice) and litigation privilege (confidential communications,
information or documents brought into existence for the dominant purpose of preparing
for litigation): Schreuder at [59].
72. In a case of a party defending a claim for production of a document on the basis that the
document is protected by legal professional privilege, whilst the ultimate legal onus
remains on the party claiming the privilege, an evidential onus may be cast upon the
party seeking inspection if the claim for privilege is 'apparently proper': Carey v
Korda [2012] WASCA 228; (2012) 45 WAR 181 (Carey) at [70].
73. What is required to establish a privilege claim will vary depending on the nature of the
document and the particular ground on which privilege is claimed: Carey at [71]. The
example cited in Carey of what could readily be capable of sustaining a claim for legal
professional privilege on the ground that it was made for the dominant purpose of giving
legal advice is where a document is described as a confidential communication from the
lawyer to the client: Carey at [71].
74. However, each claim will need to be considered on its merits, and the sufficiency of the
evidence relied upon by the party disputing the privilege claim for the purpose of
meeting its evidential onus will vary according to the ground of privilege claimed and the
description of the document given: Carey at [71].
Secondary issue 1 - can the Tribunal make any orders other than the production of
documents?
75. It is clear that the only threshold for inspecting materials of a strata company is whether
the applicant falls within a specified or prescribed class of persons.
76. The owner, being a member of the strata company, is entitled to apply for inspection of
all materials specified under s 104 of the Act, without having to establish a purpose or
reason for the inspection.
77. As such, if I am satisfied that the documents requested by the owner are those required
to be held by the strata company, and is otherwise not protected by legal professional
privilege, I will make the orders sought.
78. This is consistent with the view taken by the majority of the Court of Appeal in
Engwirda v The Owners of Queens Riverside Strata Plan 55728 [2019]
WASCA 190 at [17], [23] and [24].
79. In that case, his Honours Murphy and Mitchell JJA and considered that the Tribunal is
to exercise the power where a strata company has wrongfully failed to make available for
inspection a record or document that a lot owner is statutorily entitled to inspect, and
the Tribunal has no role to oversee whether the entitlement to inspect documents is
exercised 'within reasonable bounds' or whether it involves 'serious potential of misuse,
oppression and pettiness'.
80. Further, I will make the orders, even taking into account the attestations of Ms Rigby
and Ms Logiudice that they have provided all documents within their possession and
control. Notwithstanding orders requiring each to particularise the documents that have
been provided to the owner, neither have adequately attended to this task, and so I do
not have any sense as to what has been provided to the owner (and whether it could be
said that the strata company has complied with the previous Tribunal orders, and
whether it has kept all the documents which it is required to keep for the prescribed
period of time).
81. However, to the extent that the owner is seeking information rather than existing
documents, or the creation of new documents, that clearly falls outside of what can be
sought under an application for inspection, and I will dismiss that part of her
application.
82. Further, to the extent that she seeks orders compelling the strata company (or other
entities) to do certain things, that fall outside the scope of her original application.
Whilst I am prepared to constrain her application to those documents identified in her
