Sailz Whitsunday [2009] QBCCMCmr 22 (28 January 2009)

TAKE NOTICE that pursuant to an application made under the abovementioned Act by

I hereby order that the body corporate for Sailz Whitsunday must allow Barrie Robertson (applicant) to inspect the body corporate records. The inspection must be on a day nominated by the applicant provided it is within normal office hours and at least seven days after the date of this order.

I further order that the body corporate may withhold from inspection by the applicant any documents that a practising solicitor has certified as being, in his or her opinion, privileged from disclosure to the applicant. A list describing any documents withheld must be supplied to the applicant at the time of the inspection.

This is an interim order and will remain in effect for a period of not longer than six months. It is the responsibility of the applicants to apply to extend this order if no final determination has been made within that period. This order will automatically lapse upon a final order being made or this application being withdrawn.

Sailz Whitsunday Community Titles Scheme (Sailz) is a 32 lot scheme under the Body Corporate and Community Management Act 1997 (Act) and the Act’s Accommodation Module Regulation (Accommodation Module).

This application is by Barrie Robertson, an owner of lot 24 (applicant) seeking orders against the body corporate for Sailz (respondent). The applicant is seeking an order to allow him to view all of the body corporate’s records.

Submissions were provided by the secretary, on behalf of the body corporate. These were to the effect that possibly illegal and unsafe structures were built on common property by the past committee, including the applicant. It is submitted that there is a very real chance that legal action will result regarding the actions of the past office bearers.

Due to the claim by the secretary that the body corporate may potentially commence legal action against the applicant, I considered it necessary that the secretary identify any body corporate documents that may be privileged from disclosure. On 11 December 2008 I requested the secretary provide a numbered list of documents claimed to be for anticipated litigation against the applicant and describe any purposes the document could be used for apart from litigation.

On 19 January 2009 this office received a numbered list of 21 documents claimed to be for anticipated litigation. I note that a number of these documents appear to be related to the obtaining of quotations or in relation to financial matters of the body corporate. The remainder of the documents appear to be primarily communications either sent or received by the applicant or by another of the persons the secretary claims the body corporate may wish to take action against.

The body corporate must allow an owner of a lot to inspect the body corporate’s records within seven days of a written request accompanied by the prescribed fee (Act 205, Accommodation Module 203).

However, at common law, documents are privileged from disclosure if they are confidential documents prepared for the dominant purpose of obtaining legal advice or to the extent disclosure of the document would reveal confidential communications with a lawyer. The High Court has confirmed that legal professional privilege is a common law immunity that can only be removed by clear and unambiguous statutory provisions.[1]

There is some ambiguity in whether the intention of the legislative provisions in the Act that deal with access to records was to allow the body corporate to continue to rely upon legal professional privilege. Section 202 of the Accommodation Module, relating to access by committee members, specifically excludes access to defamatory material and to records privileged from disclosure. In contrast, section 205 of the Act refers only to withholding of defamatory material with no mention being made of privileged documents.

However, despite this inconsistency in drafting between the two sections, section 205 of the Act cannot be read as clearly and unambiguously removing legal professional privilege. Therefore, the body corporate is not required to disclose confidential documents if litigation is anticipated against the applicant and the documents were prepared for the dominate purpose of obtaining legal advice or would reveal confidential communications between the body corporate and its lawyers.

I have reviewed the list of 21 documents that the secretary claims are protected by legal professional privilege.

It appears highly unlikely that any of these documents are privileged from disclosure, based on the brief description of these documents supplied. For example, documents relating to levies and quotations for work on common property appear likely to significantly relate to the day to day administration of the scheme rather than being of a confidential nature for the dominate purpose of litigation. Further, it is very difficult to see how the secretary could claim any privilege over documents numbered 8 to 21 which appear to be created by, or previously sent to, the applicant himself or other former committee members against whom litigation may be threatened.

It would be prudent for the committee to reconsider its claim of privilege in light of the above comments. Possibly the committee will wish to obtain legal advice as to whether the documents are truly privileged. Alternatively, the committee may decide that most, or all, of the documents are not privileged. However, I consider that I would need to have further discussions with the parties and possibly need to view the documents in question before finally determining whether or not those documents are privileged.

In the circumstances, I do not wish to further delay access to body corporate documentation by the applicant pending an opportunity do discuss the claim of privilege further and view the documents in question. I therefore propose to make an interim order that the body corporate provide access to all body corporate documents that are not claimed to be privileged. If the committee, upon reading the above, still considers that some documents are privileged then it should act quickly to have those documents reviewed by a solicitor. If the solicitor considers some documents are privileged then those particular documents may be withheld pending a final determination as to the status of those documents in due course. However, in all the circumstances, I consider it appropriate to make the interim orders above to facilitate timely access in accordance with section 205 of the Act to all body corporate documents for which there is no formal claim of privilege certified be a solicitor.

For these reasons, I make the interim order above. If necessary, a final order will be made in due course.

[1] The Daniels Corporation International Pty Ltd v Australian Competition and Consumer Commission [2002] HCA 49

Number of Scheme:	16912
Name of Scheme:	Sailz Whitsunday
Address of Scheme:	24 Panadanus Drive CANNONVALE QLD 4802

Queensland Body Corporate and Community Management Commissioner - Adjudicators Orders

Sailz Whitsunday [2009] QBCCMCmr 22 (28 January 2009)