Background
The plaintiff, identified by pseudonym, commenced proceedings in the Supreme Court of Queensland against The Creche and Kindergarten Association Limited (C&K) seeking damages for psychological injuries she allegedly suffered after her daughter swallowed a button battery on 11 October 2021 while in C&K’s care at one of its kindergartens. In the wake of the incident, both Workplace Health and Safety Queensland and the Department of Education launched investigations. Within two days, C&K’s insurer directed the company to retain Gilchrist Connell, explicitly to “protect privilege in anticipation of a claim being made.” The firm was formally retained on 13 October 2021 to advise on the regulatory investigations and potential liability exposure, and was also engaged to prepare a formal investigation report for the Department of Education, which it delivered on 9 November 2021.
On 12 December 2025, the plaintiff served a notice of non-party disclosure under r 242 of the Uniform Civil Procedure Rules 1999 (Qld) on Gilchrist Connell, seeking production of the firm’s entire file relating to its retainer to prepare the investigation report—including correspondence, interview notes, audio recordings, photographs, and all related material. Gilchrist Connell objected on 23 February 2026, asserting that all 411 documents and six audio recordings in the file (the disputed documents) were shielded by legal professional privilege. Service of the objection automatically stayed the notice under r 246, and the plaintiff applied for orders lifting the stay and compelling production.
C&K sought to sustain the privilege claim through an affidavit from Mr Hauser, a Gilchrist Connell principal who had day-to-day conduct of the file. The affidavit described the retainer and enumerated the categories of documents in a spreadsheet but provided limited analysis of the individual documents or the circumstances in which each was created. The spreadsheet also identified some documents as “available for disclosure” that had never been produced. At the hearing, C&K sought for the first time to argue that the documents lacked relevance—a ground not raised in the objection notice.
The Court’s Holding
McCafferty J declined to entertain C&K’s late-raised relevance argument, holding that because lack of relevance was not stated as a ground in the objection notice as required by r 245(3), it could not be litigated at the hearing. Documents within the spreadsheet marked “available for disclosure” were ordered to be produced without further objection. On the privilege question, the court reaffirmed that the dominant purpose test governs: a document is privileged only if, objectively assessed at the time of creation, its dominant purpose was obtaining or giving legal advice or use in anticipated litigation. The mere involvement of solicitors—even close involvement—does not by itself establish privilege.
The court held that the party claiming privilege must adduce adequate evidence to support the claim, whether by describing the circumstances of creation, pointing to the nature of the documents, or adducing direct evidence from participants. The court noted that r 213(3) of the UCPR—which requires the supporting affidavit to be sworn by a person who “knows the facts giving rise to the claim”—does not technically apply to non-party disclosure objections, but the obligation to produce sufficient evidence remains. Mr Hauser’s affidavit was found inadequate in respect of significant portions of the disputed documents: it relied on broad categorical descriptions without analysis of individual documents or the circumstances in which they were created.
On the court’s discretion to inspect the disputed documents, McCafferty J affirmed that the inspection power exists and is wide, but held that it must not be used as a substitute for evidence. Where a party has failed to adduce adequate evidence in support of a privilege claim—particularly over a large volume of documents—the court should not be expected to trawl through the material to determine whether the claim is sound. A disproportionate burden is placed on scarce court resources when parties rely on inadequate evidence and then seek judicial inspection as a remedy. The parties were directed to agree on a form of order reflecting the court’s reasons.
Key Takeaways
- A privilege objection to a non-party disclosure notice must clearly state all grounds at the time of objection; new grounds (such as lack of relevance) raised for the first time at the hearing will ordinarily be rejected.
- The dominant purpose of a document is determined objectively at the time of creation—not by the label placed on it, the involvement of lawyers, or the subjective intention of the person who created it. Equal competing purposes defeat the claim.
- To sustain a legal professional privilege claim over a large document set, the claimant must adduce affidavit evidence that goes beyond categorical descriptions; the court will not routinely exercise its inspection power to fill the evidentiary gap left by inadequate privilege evidence.
- Documents within a privilege log that are conceded not to be privileged must be produced promptly, regardless of any other unresolved dispute over remaining documents.
Why It Matters
This decision provides important practical guidance for litigants and their solicitors responding to non-party disclosure notices in Queensland. It makes clear that a categorical spreadsheet and a broadly worded affidavit will not ordinarily suffice to sustain a privilege claim over hundreds of documents, particularly where the instructing firm itself prepared the documents in a dual capacity—as litigation adviser and as author of a regulatory report delivered to a third-party government body. The tension between privilege and disclosure is sharpest precisely in this kind of post-incident investigation context, where a firm is engaged both to advise on liability and to produce a document for external regulatory use.
The decision also signals a firm judicial expectation that privilege claimants front-load adequate evidence rather than rely on the court’s inspection discretion as a fallback. For practitioners across Australia, it reinforces the message from recent decisions such as Medibank Private Limited v McClure [2026] FCAFC 38: courts will scrutinise claims carefully, and the mere channelling of documents through lawyers or the labelling of a document as “privileged” will not carry the day without evidence that legal advice was objectively the dominant purpose at the time of creation.