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National firm Gilchrist Connell’s claim for legal professional privilege over documents linked to a childcare centre investigation has been criticised for containing “deficiencies” and “inadequate” evidence.
The mother of a girl who swallowed a button battery at a facility run by The Creche and Kindergarten Association (C&K) was partly successful in her bid to access various documents used by its solicitors, Gilchrist Connell, in compiling its investigation report.
The parties were ordered to agree to a form of orders, or submit their own draft orders with their respective positions, to the chambers of the Supreme Court of Queensland’s Judge Patrick McCafferty by 18 June.
Gilchrist Connell, through a principal lawyer, had objected to the disclosure of 411 documents, including six audio recordings, on the basis they attracted legal professional privilege. As part of this, the lawyer caused a spreadsheet recording the documents to be created.
Judge McCafferty was critical of the “deficiencies” in the spreadsheet, including a lack of information as to how it was prepared, what the process involved, and who – other than the lawyer – was involved.
“Another deficiency is that while [the lawyer] identifies he has included in the spreadsheet ‘the bases for the claim’, he does not in fact say he has reviewed each of the documents,” the judge said.
“A further deficiency is the affidavit does not identify or explain by reference to individual documents why it is asserted the document or communications was created for the requisite dominant purpose.”
That dominant purpose must be determined objectively, having regard to the evidence, and is “one which is the ruling, prevailing or most influential purpose,” the senior judge added.
Judge McCafferty said, on one view, what the principal solicitor did was “make mere assertions to a claim for privilege without proving the facts that establish the claim is properly made”.
While C&K’s evidence was sufficient to discharge the onus in respect of some of the documents, the remainder was “inadequate”.
This included audio of interviews, photographs taken at a site inspection, a report prepared by C&K, and a collection of emails.
“The significance of a failure by a party asserting privilege to put adequate evidence before the court to determine the issue is, as I have said, relevant to whether the court should exercise its discretion to examine documents to resolve the question of privilege.
“While in this case the discretion to inspect was exercised, it should not be assumed, for the reasons I have identified, that a party asserting privilege should rest on the expectation that a court will too readily inspect documents,” Judge McCafferty said.
Citation: Smith (a pseudonym) v Gilchrist Connell Pty Ltd (a firm) [2026] QSC 122.
