CRONIN -v- JOONDALUP HOSPITAL PTY LTD, TRADING AS JOONDALUP HEALTH CAMPUS, OWNED AND OPERATED BY RAMSAY HEALTH CARE (AUSTRALIA) PTY LTD [2026] WASC 207

[2026] WASC 207 Page 1 JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA IN CHAMBERS CITATION : CRONIN -v- JOONDALUP HOSPITAL PTY LTD, TRADING AS JOONDALUP HEALTH CAMPUS, OWNED AND OPERATED BY RAMSAY HEALTH CARE (AUSTRALIA) PTY LTD [2026] WASC 207 CORAM : PALMER J HEARD : ON THE PAPERS DELIVERED : 29 MAY 2026 FILE NO/S : CIV 2289 of 2025 BETWEEN : JOSANNE CRONIN Plaintiff AND JOONDALUP HOSPITAL PTY LTD, TRADING AS JOONDALUP HEALTH CAMPUS,OWNED AND OPERATED BY RAMSAY HEALTH CARE(AUSTRALIA) PTY LTD Defendant Catchwords: Practice and procedure - Legal professional privilege - Application for order to produce documents allegedly referred to in affidavit - Application to set aside subpoena issued to solicitors for their file - Whether legal professional privilege has been waived - Whether documents sought to be produced were referred to in affidavit -- 1 of 21 -- [2026] WASC 207 Page 2 Legislation: Limitation Act 2005 (WA) Rules of the Supreme Court 1971 (WA) O 26 r 8(2), O 36B r 8A(2) Result: Application to set aside subpoena dismissed Application for order to produce documents dismissed Category: B Representation: Counsel: Plaintiff : In person Defendant : Not applicable Solicitors: Plaintiff : In person Defendant : Minter Ellison Case(s) referred to in decision(s): Apotex Pty Ltd v ICOS Corporation (No 2) [2017] FCA 589 Australian Competition & Consumer Commission v Visy Industries Holdings Pty Ltd [2006] FCA 136 Australian Competition and Consumer Commission v Australink Pty Ltd [2009] FCA 265 Canstruct Pty Ltd v Project Sea Dragon Pty Ltd (Subject to a Deed of Company Agreement) (No 3) [2023] FCA 905 Dubai Bank Limited v Galadari (No 2) [1990] 2 All ER Koolan Iron Ore Pty Ltd v Infrassure Ltd [2020] FCA 233 MacDonald v CSR Pty Ltd [2025] WASC 532 Marubeni Corp v Alafouzos [1986] CA Transcript 996 Murray v Schreuder [2009] WASC 51 Poland v Hedley [2023] WASCA 69 Quilter v Heatly (1883) 23 Ch D 42 -- 2 of 21 -- [2026] WASC 207 Page 3 Trans Petroleum (Australia) Pty Ltd v United Petroleum (WA) Pty Ltd [2019] WASC 154 -- 3 of 21 -- [2026] WASC 207 PALMER J Page 4 PALMER J: Introduction 1 In 2017, the plaintiff underwent spinal surgery in a hospital run by the defendant. 2 On 12 November 2025, the plaintiff commenced these proceedings against the defendant for damages for personal injuries she alleges she sustained from the treatment that she received. 3 The plaintiff is representing herself in these proceedings. 4 On 23 January 2026, the plaintiff filed a chamber summons (the Extension Application) seeking leave to extend the limitation period within which to bring these proceedings, pursuant to s 39(3)(b) and s 39(4)(a)-(c) of the Limitation Act 2005 (WA) (the Limitation Act). That application was supported by a Further Affidavit of Josanne Lyn Cronin Affirmed on 22 January 2026 (the Further Affidavit). 5 By way of a chamber summons dated 13 March 2026 (the Production Application), the defendant now seeks orders pursuant to O 26 r 8(2) of the Rules of the Supreme Court 1971 (WA) (the Rules of the Supreme Court) that the plaintiff produce for inspection within seven days: 'Shine Lawyers' historical file and communications with them' referred to in the Further Affidavit. 6 The plaintiff disputes that the defendant is entitled to production under O 26 r 8(2). In any event, the plaintiff maintains that the documents in question are subject to legal professional privilege. 7 On 16 March 2026, the defendant issued a subpoena to Shine Lawyers for the following material: The contents of Shine Lawyers' file relating to the retainer of it by Josanne Lyn Cronin from in or around 2018 relating to a potential medical negligence claim arising from back pain (potential claim) (Shine Lawyers reference ref KJAR/AMIL/6178013) namely: 1. all letters and other forms of written communications (including emails) sent to or received from Josanne Lyn Cronin relating to the potential claim; 2. file notes or similar records recording the substance of any telephone or other verbal communications with Josanne Lyn Cronin about the potential claim; and -- 4 of 21 -- [2026] WASC 207 PALMER J Page 5 3. advice given to Josanne Lyn Cronin (in whatever form) about the potential claim and/or the cause (or potential cause) of her medical condition giving rise to the potential claim. 8 The plaintiff has sought to set aside the subpoena on the basis that the documents sought are subject to legal professional privilege. 9 The defendant did not dispute that Shine Lawyers' file and its contents had been subject to legal professional privilege but argued that the Further Affidavit had waived that privilege. When a limitation period will be extended 10 Before turning to consider what the Further Affidavit said, it is useful to say something about when a limitation period will be extended pursuant to s 39(3)(b) and s 39(4)(a)-(c) of the Limitation Act, as well as the circumstances in which the Further Affidavit was filed. 11 Section 14(1) of the Limitation Act provides that an action for damages relating to a personal injury to a person cannot be commenced if three years have elapsed since the cause of action accrued. 12 Section 39(1) of the Limitation Act provides that a plaintiff may apply to a court for leave to commence an action for damages relating to a personal injury to a person, even though the limitation period provided for under the Limitation Act has expired. 13 As I have mentioned, the Extension Application seeks orders extending the limitation period within which to bring these proceedings, pursuant to s 39(3)(b) and s 39(4)(a)-(c) of the Limitation Act. 14 Section 39(3)(b) of the Limitation Act provides that a court may extend a limitation period, if it is satisfied that when the limitation period expired, a person to whom the cause of action accrued, was aware of the physical cause of the death or injury but was not aware that the death or injury was attributable to the conduct of a person. 15 Section 39(4) of the Limitation Act provides that: On an application a court may extend the time in which the action can be commenced up to 3 years from when a person to whom the cause of action accrues became aware, or ought reasonably to have become aware — (a) of the physical cause of the death or injury; -- 5 of 21 -- [2026] WASC 207 PALMER J Page 6 (b) that the death or injury was attributable to the conduct of a person (whether a defendant or not); and (c) of the identity of the person mentioned in paragraph (b). The circumstances in which the Further Affidavit was filed 16 As I have mentioned, the plaintiff commenced these proceedings on 12 November 2025. 17 On 13 November 2025, the plaintiff filed a document titled 'Form 55 - Application to Extend Limitation Period' which was filed in the Supreme Court as a memorandum pursuant to O 59 r 9(2). The plaintiff also filed an affidavit the same day. 18 On 19 December 2025, a first case management conference was held before Acting Registrar Hill. 19 At that hearing, the defendant's counsel submitted that the 'Form 55' document that the plaintiff had filed on 13 November 2025 was irregular. It was argued that this meant that the plaintiff had not made an application to extend the limitation period.1 20 The defendant's counsel also contended that the affidavit that the plaintiff had filed on the 13 November 2025 failed to mention that she had engaged Shine Lawyers in 2018 and attached without prejudice correspondence.2 21 Acting Registrar Hill indicated that given the concerns expressed about the affidavit attaching without prejudice material, he would give the plaintiff leave to uplift the affidavit and re-file it with those materials removed. He also observed that this would permit the plaintiff to address any matters raised by the defendant that the plaintiff wished to address.3 22 Acting Registrar Hill then made orders that:4 (a) the plaintiff have leave to uplift the plaintiff's affidavit filed on 13 November 2025 and file a further affidavit on or before 23 January 2026; and 1 ts 19 December 2025, ts 4 - ts 5. 2 ts 19 December 2025, ts 5 - ts 6. 3 ts 19 December 2025, ts 8 - ts 9. 4 Orders of Acting Registrar Hill dated 22 December 2025. -- 6 of 21 -- [2026] WASC 207 PALMER J Page 7 (b) the plaintiff make an application for an extension of the limitation period by the same date. 23 The Extension Application and the Further Affidavit were filed pursuant to these orders. 24 In an affidavit that the plaintiff filed in opposition to the Production Application, she asserted that the court directed her to file the Further Affidavit to address her involvement with Shine Lawyers.5 25 That is not correct. I have explained the circumstances in which the plaintiff filed the Further Affidavit above. The court did not direct her to file an affidavit to address her dealings with Shine Lawyers. 26 Rather, the plaintiff seems to have chosen to address those dealings when they were raised by the defendant. Her decision to do so is understandable. How she was not aware, or ought not reasonably to have become aware, that her injury was allegedly attributable to the defendant's conduct until 2025, despite having consulted lawyers in 2018, was a matter that she might well want to explain to advance the Extension Application. What the Further Affidavit said 27 In the Further Affidavit, the plaintiff said the following. 28 Prior to her first spinal surgery in July 2017, she understood that the surgery would be a discectomy which would involve the removal of disc material only. She said that she was not told that the procedure would involve the cutting, fracturing or removal of bone and there was no discussion of the need for an osteotomy. She said that she did not consent to such a procedure.6 29 Imaging following the initial surgery identified spinal fractures.7 30 The plaintiff required further surgery for a re-herniated disc and another surgery to fuse her spine. Imaging after the fusion also identified spinal fractures.8 5 Affidavit of Josanne Lyn Cronin affirmed on 2 April 2026 in Response to the Defendant’s Application made on 13 March 2026 for Order that the Plaintiff Produce Documents [5] - [7]. 6 Further Affidavit [5]. 7 Further Affidavit, [6]. 8 Further Affidavit, [7]. -- 7 of 21 -- [2026] WASC 207 PALMER J Page 8 31 At the time that the fractures were first identified, the plaintiff was not told about why they had appeared and was not given any explanation for why she required further surgeries other than being told that the disc had re-herniated and that she had sustained a fracture. Nor was she told about subsequent fractures that developed.9 32 In the years following the surgeries, the plaintiff was not provided with any explanation identifying any intra-operative bone cutting or removal.10 33 In or about 2018, the plaintiff contacted Shine Lawyers because she was in significant and worsening pain, her condition was deteriorating, and she was struggling to continue working. She sought legal assistance to understand why her condition had deteriorated following her spinal surgery.11 34 Shine Lawyers asked her to complete an authority so that they could request her medical records. She did not pay Shine Lawyers any money and was not provided with copies of any hospital records or imaging that may have been obtained on her behalf. She was not informed what documents were supplied to Shine Lawyers. She therefore did not know what information, if any, was held by them or whether it revealed anything about the cause of her injuries.12 35 Paragraphs 19 to 22 of the Further Affidavit stated as follows: 19. At no time during my communications with Shine Lawyers was I informed that any surgical steps had been taken outside the scope of my consent or that any intra-operative bone cutting or removal had occurred. I was not informed that my injuries were attributable to any failures in hospital documentation or disclosure, and I remained unaware of any material facts capable of grounding a cause of action in relation to those matters. 20. During 2018, I continued to contact Shine Lawyers explaining that I remained in significant pain, that I was struggling to keep working, and that imaging had raised concerns about my spinal fusion. At no time did any doctor, hospital staff member or Shine Lawyers explain to me how or why the fractures had occurred, or whether they were linked to any surgical steps taken during the first operation or to any failure in hospital documentation or disclosure. 9 Further Affidavit, [8] - [10]. 10 Further Affidavit [14] - [16]. 11 Further Affidavit [17]. 12 Further Affidavit [18]. -- 8 of 21 -- [2026] WASC 207 PALMER J Page 9 (See Attachment J-Shine Lawyers authority). 21. On, or about October 2019, Shine Lawyers advised me that they would not proceed further with investigating my matter and that no further steps would be taken. At that time, I was not provided with any explanation, information, or material indicating that my injuries were attributable to any surgical steps taken outside the scope of my consent or to any intra- operative bone cutting or removal. 22. I did not receive any further correspondence from Shine Lawyers explaining the basis for their decision at that time. I first obtained Shine Lawyers' historical file only in January 2026, after making a formal request. (emphasis added) 36 In October 2018, Joondalup Hospital Pty Ltd invoiced Shine Lawyers for access to the plaintiff's medical records, confirming that their application related to 762 pages of material and estimating processing time of 80 minutes.13 37 The plaintiff later discovered that her complete hospital file comprised approximately 1,200 pages. She considers that this confirms that Shine Lawyers did not hold, and she did not have access to, her complete hospital records during the period they were undertaking enquiries in relation to her condition.14 38 The plaintiff was not provided with any of the hospital records obtained by Shine Lawyers at that time and therefore did not know what information those records contained, or whether they revealed anything about the cause of her injuries.15 39 It was only in June to July 2025, that the plaintiff was provided with her complete hospital records.16 40 Paragraph 41 of the Further Affidavit stated: I am aware that certain communications between myself and former legal advisers are subject to legal professional privilege and I do not waive that privilege. I confirm that, before June-July 2025, none of those communications told me that any unauthorised surgical 13 Further Affidavit [23]. 14 Further Affidavit [25]. 15 Further Affidavit [26]. 16 Further Affidavit [40]. -- 9 of 21 -- [2026] WASC 207 PALMER J Page 10 procedure, intra-operative bone removal, breach of consent or hospital governance failure had occurred. 41 After receiving her complete hospital records, the plaintiff discovered for the first time that bone had been removed beyond the procedures to which she had consented.17 When a subpoena will be set aside 42 The plaintiff seeks an order that the subpoena be set aside pursuant to O 36B r 8A(2) of the Rules of the Supreme Court.18 That rule provides that on the request of an addressee or a party, the court may set aside a subpoena, or part of it. 43 That documents are subject to legal professional privilege has been recognised as a legitimate basis to object to the inspection of documents that have been produced under a subpoena.19 44 In this case, the parties agree that whether the subpoena should be set aside turns upon whether or not legal professional privilege was waived by the Further Affidavit. When legal professional privilege is waived 45 The principles regarding when legal professional privilege is waived were discussed by the Court of Appeal in Poland v Hedley.20 The court summarised the position as follows: Legal professional privilege exists to protect the confidentiality of communications between the lawyer and client. It is inconsistency between the conduct of the client and the maintenance of the confidentiality which effects a waiver of the privilege. The assessment of whether a party has waived privilege is determined by considering whether, viewed objectively, the conduct of the privilege-holder is inconsistent with the maintenance of the confidentiality which the privilege is intended to protect. Where the privilege-holder's conduct objectively evinces the requisite inconsistency, the law will recognise the inconsistency and its consequences, even though such consequences may not reflect the subjective intention of the privilege-holder. The assessment is to be made in the context and circumstances of the case, and in light of any considerations of fairness arising from that context or those circumstances. Depending upon the circumstances of the case, considerations of fairness may be relevant to a determination of 17 Further Affidavit [42] - [44]. 18 See Objection to subpoena to produce issued to Shine Lawyers Pty Ltd dated 16 March 2026 filed on 24 March 2026. 19 MacDonald v CSR Pty Ltd [2025] WASC 532 [9] (MacDonald). 20 Poland v Hedley [2023] WASCA 69 (Poland v Hedley) [72]. -- 10 of 21 -- [2026] WASC 207 PALMER J Page 11 whether, objectively, there is inconsistency. There is not, however, some overriding principle of fairness operating at large. All the circumstances must be looked at, including whether any disclosure to a third party was on terms and in circumstances consistent with the preservation of confidentiality. 46 The Court of Appeal said that the mere reference to a document will not constitute a waiver of privilege. The Court of Appeal explained, however, that where a party to proceedings makes an assertion as part of its case that, directly or indirectly, puts the contents of privileged communications in issue, or necessarily opens them to scrutiny, with the consequence that an inconsistency arises between the making of the assertion and the maintenance of the privilege, privilege will be impliedly waived. The Court of Appeal observed that it does not matter that the privilege-holder did not subjectively intend to lose the benefit of the privilege.21 47 In Banksia Mortgages Ltd v Croker,22 Schmidt J considered a situation in which an affidavit sworn by the defendant's lawyer referred to the content of privileged emails.23 His Honour concluded that privilege had been waived and observed: 24 In ASIC v Rich [2004] NSWSC 923, Austin J was concerned at hearing with various questions of waiver. He observed; '9 A distinction is sometimes drawn between 'disclosure' waiver and 'issue' waiver, although they may be simply different examples of the application of the principle stated in Mann v Carnell. In the case of 'disclosure' waiver, a party behaves inconsistently with the maintenance of privilege by disclosing part, but not all, of a privileged communication. In the case of 'issue' waiver, a party behaves inconsistently with the maintenance of the privilege by putting in issue the state of mind of a person in circumstances where that state of mind is likely to have been influenced by a privileged communication.' His Honour went on: '13 Here, the defendants rely on 'disclosure' waiver. They say that ASIC has disclosed part of the communication that occurred at the meeting on 21 November 2001, thereby waiving part of a protected communication, in circumstances where fairness dictates that the waiver of that part should result in waiver of the 21 Poland v Hedley [75]. 22 Banksia Mortgages Ltd v Croker [2010] NSWSC 535 (Banksia Mortgages). 23 The content of the emails is set out at: Banksia Mortgages [29] and [30]. 24 Banksia Mortgages [32] - [35]. -- 11 of 21 -- [2026] WASC 207 PALMER J Page 12 rest of the communication. They rely on Attorney-General for the Northern Territory v Maurice (1986) 161 CLR 475 at 488, where Mason and Brennan JJ said: 'The holder of the privilege should not be able to abuse it by using it to create an inaccurate perception of the protected communication. Professor Wigmore explains: '[W]hen his conduct touches upon a certain point of disclosure, fairness requires that his privilege shall cease whether he intended that result or not. He cannot be allowed, after disclosing as much as he pleases, to withhold the remainder' (Wigmore, Evidence in Trials at Common Law (1961), vol 8, para 2327, p 636). In order to ensure that the opposing litigant is not misled by an inaccurate perception of the disclosed communication, fairness will usually require that waiver as to one part of a protected communication should result in waiver as to the rest of the communication on that subject-matter.' … In this case the disclosure occurred at an earlier point in the proceedings. Not only did Mr Mitry then disclose by his affidavit that he had received instructions from Mrs Croker and that they were contained in the emails which he identified, he also disclosed the contents of the emails, or at least parts of them. It was not contended that the emails dealt with anything other than factual matters, but clearly, given the resistance to their production they must contain other matters not disclosed in Mr Mitry's affidavit. This disclosure of factual matters about which instructions had been received is not surprising. The affidavit was used in order that the plaintiff's claim for summary judgment could be defended. That exercise, undoubtedly, required evidence to be put on. The necessary consequence of the disclosure of part of the communications received from Mrs Croker by email, is that the maintenance of a claim for privilege in the emails at this stage of the proceedings, is inconsistent with that earlier disclosure. The result of the course taken is that as well as what is contained in the affidavit being disclosed, the privilege which attached to Mrs Croker's email communications with her solicitor as to those matters was also waived by the filing and service of Mr Mitry's affidavit. While the emails were confidential communications which were privileged and to which s 119 of the Evidence Act attached, once their contents were disclosed, or partially disclosed as they were, that privilege was lost. -- 12 of 21 -- [2026] WASC 207 PALMER J Page 13 Whether the Further Affidavit waived privilege 48 The plaintiff relies upon the evidence in the Further Affidavit in support of the Extension Application. The evidence in that affidavit addresses when the plaintiff became aware, or ought reasonably to have become aware, that her injury was allegedly attributable to the defendant's conduct. The evidence is relevant to whether the limitation period within which to bring these proceedings should be extended and, if so the duration of any such extension. 49 Section 39(3)(b) of the Limitation Act only permits the limitation period to be extended if the court is satisfied that, at the time the limitation period expired, the plaintiff was aware of the physical cause of her injury but not aware that her injury was allegedly attributable to the conduct of a person. 50 Section 39(4)(b) provides that the limitation period may be extended for a maximum of 3 years from when the plaintiff became aware, or ought reasonably to have become aware, that her injury was allegedly attributable to the conduct of a person. 51 The evidence in the Further Affidavit seeks to explain how and why the plaintiff did not know that her injury was allegedly attributable to the defendant's conduct until 2025, despite the fact that she engaged Shine Lawyers in 2018 and they obtained the plaintiff's medical records on her behalf. 52 The Further Affidavit makes a number of statements about what the plaintiff was not told by Shine Lawyers. 53 Paragraph 19 of the Further Affidavit states that Shine Lawyers did not tell the plaintiff that 'any surgical steps had been taken outside the scope of [her] consent or that any intra-operative bone cutting or removal had occurred', or that '[her] injuries were attributable to any failures in hospital documentation or disclosure'. 54 Paragraph 20 of the Further Affidavit states that 'at no time' did Shine Lawyers tell the plaintiff how or why the fractures had occurred, whether they were linked to the first operation, or to any failure in hospital documentation or disclosure. 55 Paragraph 21 of the Further Affidavit states that on or about October 2019, Shine Lawyers did not provide the plaintiff with any explanation, information, or material indicating that her injuries were -- 13 of 21 -- [2026] WASC 207 PALMER J Page 14 attributable to any surgical steps taken outside the scope of her consent, or to any intra-operative bone cutting or removal. 56 Each of these statements makes assertions about the content of the privileged communications between Shine Lawyers and the plaintiff. In my view, those assertions put the contents of those communications in issue. 57 Disclosing what was not discussed, arguably involves a partial disclosure of the communications because an assertion that matters were omitted, also makes an assertion about the content of the totality of what was discussed. In this regard, the plaintiff's partial disclosure of the communications is similar to the position in Banksia Mortgages. 58 In any event, an assertion that the plaintiff did not know things until 2025 because she was not told of certain matters by Shine Lawyers, puts her state of mind in issue where that state of mind has been influenced by the privileged communications. 59 I consider that there is an inconsistency between making the statements made in the Further Affidavit about the content of the privileged communications and the maintenance of privilege. While it might be accepted that the plaintiff did not subjectively intend to waive privilege, fairness dictates that there is a waiver of the privilege over the entirety of the communications. Otherwise, the defendant would be denied any meaningful opportunity to test the assertions the plaintiff has made about the content of those communications. 60 I consider, therefore, that privilege was waived over the communications between the plaintiff and Shine Lawyers and I do not consider that the subpoena should be set aside. 61 The defendant indicated that even if the subpoena was not set aside, it pressed the application for production under O 26 r 8(2) of the Rules of the Supreme Court. Given the conclusion I have reached about waiver, whether production should be ordered under that rule, turns upon whether the Further Affidavit made a sufficiently direct allusion to the documents for which production was sought. When a document must be produced under O 26 r 8(2) 62 Order 26 r 8(2) of the Supreme Court Rules provides: Any party to a cause or matter shall be entitled at any time to serve a notice on any other party in whose pleadings or affidavits reference is -- 14 of 21 -- [2026] WASC 207 PALMER J Page 15 made to any document requiring him to produce that document for inspection by the party giving the notice. (emphasis added) 63 The purpose of O 26 r 8(2) is to put the party seeking production of the document for inspection in the same position as they would have been in if the document referred to had been set out in full in the affidavit. The document must be produced unless good cause is shown.25 64 It has been observed that when a document is directly relied on by an opposing party, basic procedural fairness would require that a party be able to inspect the document.26 In Canstruct Pty Ltd v Project Sea Dragon Pty Ltd (Subject to a Deed of Company Agreement) (No 3), Derrington J explained the position as follows:27 … the rule appears to embrace the notion that, where a party in a pleading or affidavit makes specific reference to a document so as to call it in aid of their case, either for the fact of its existence or for its content, they are required as a matter of basic procedural fairness to produce the document immediately to the other side. In this context, emphasis is appropriately to be placed on the 'procedural' nature of the fairness that is to be accorded. A party receiving a pleading or an affidavit is entitled to understand it, and to be able to verify its internal veracity or consistency by reference to both its express words and the documents that it refers to as part of its narrative. That must necessarily be so, given the usual need for parties to respond to pleadings or affidavits prior to the occurrence of discovery in the action. 65 What is meant by 'reference' was considered in Dubai Bank Limited v Galadari (No 2).28 The court in Dubai considered that each document need not be individually identified and that a compendious reference to a class of documents would be sufficient. They observed:29 In Smith v Harris (1883) 48 LT 869 the plaintiff had stated in his statement of claim that during a certain period he and his father had used the word 'Glenlivet' on their letters and bill heads. In resisting an application by the defendant for production of these documents, the 25 Quilter v Heatly (1883) 23 Ch D 42 [50]; Murray v Schreuder [2009] WASC 51 [63]; Trans Petroleum (Australia) Pty Ltd v United Petroleum (WA) Pty Ltd [2019] WASC 154 [36]. 26 Australian Competition & Consumer Commission v Visy Industries Holdings Pty Ltd [2006] FCA 136 [33]; Canstruct Pty Ltd v Project Sea Dragon Pty Ltd (Subject to a Deed of Company Agreement) (No 3) [2023] FCA 905 [28] (Canstruct). 27 Canstruct [19]. See also [13]. 28 Dubai Bank Limited v Galadari (No 2) [1990] 2 All ER (Dubai Bank). 29 Dubai Bank, 743j - 744b. -- 15 of 21 -- [2026] WASC 207 PALMER J Page 16 plaintiff argued that this was only a general reference to documents. Chitty J, however, held (at 870): ' ... that it is both a general reference and also a special reference to each and every bill head and each and every letter; because the plaintiff, instead of setting out each document separately refers to them compendiously, that is no reason why inspection should not be allowed.' That decision is not binding on this court, but we see no reason to doubt its correctness. In our judgment, a compendious reference to a class of documents, as opposed to a reference to individual documents, is well capable of falling within the rule, provided that it is indeed a reference. 66 The court considered, however, that reference to a document requires a direct allusion to that document. The court said that reference by inference did not fall within the natural and ordinary meaning of the words 'reference is made to any document'. It said that that phrase imports a direct allusion to a document or documents. It considered that a court should not have to engage in a process of inference and conjecture to determine whether a document or class of documents exist.30 67 The court referred to the conclusion of Lawton LJ in Marubeni Corp v Alafouzos31 with apparent approval. In that case an affidavit had been sworn which stated: 'The Plaintiffs have obtained outside Japanese legal advice which categorically states that this agreement does not render performance of the sale contract illegal in any way whatsoever.' Lawton LJ did not consider that this statement made any reference to a document.32 68 The court concluded that a mere opinion that on the balance of probabilities, a transaction referred to in a pleading or affidavit must have been effected by a document, does not give the court jurisdiction to make an order unless the pleading or affidavit makes direct allusion to the document or class of documents in question.33 69 In Australian Competition and Consumer Commission v Australink Pty Ltd, 34 Spender J was called upon to consider a situation in which an affidavit stated that the ACCC 'has received 60 complaints 30 Dubai Bank, 744h-l. 31 Marubeni Corp v Alafouzos [1986] CA Transcript 996 (Marubeni). 32 Dubai Bank, 745a-e. 33 Dubai Bank, 745f. 34 Australian Competition and Consumer Commission v Australink Pty Ltd [2009] FCA 265 (Australink). -- 16 of 21 -- [2026] WASC 207 PALMER J Page 17 from consumers'.35 His Honour did not consider that this was sufficient reference. He said:36 The word 'complaints' can easily comprehend both oral or written complaints. The word 'complaints' thus cannot be said to be a reference to a document, even though there may be strong grounds for thinking that some or other of the complaints would have been in writing. I reject the submission on behalf of the applicants on the Motion that the word 'complaints' is no different to 'letters of complaint'. The difference is crucial, and, in my opinion, important. The example of the legal advice referred to in [Marubeni Corp v Alafouzos] is similar to the use of the word 'complaints' by Ms Carr in her affidavit. That use is similar to the terms 'forecasts or budgets of future revenues, expenditures and profits prepared by management', and 'the opinions and judgment of management of GIO', each of which Moore J in King held not to refer to documents. 70 In Apotex Pty Ltd v ICOS Corporation (No 2),37 Besanko J had to consider a situation in which an expert witness, Professor Polli, stated in an affidavit that he had previously been engaged on behalf of the respondent's parent company to 'provide expert evidence' in relation to a certain drug. His Honour concluded:38 … There is no direct allusion to a document in the relevant sense. A reference by inference or an implied reference (if that be different) is not sufficient and the fact that a document almost certainly exists is not sufficient. Another way of approaching the issue leads to the same result. If one considers the matter from the point of view of 'basic procedural fairness' there would be no procedural unfairness in this case because the statement appears to have been made to describe Professor Polli's prior involvement with the parties to the proceeding and not with a view to bolstering or supporting in some way his expert opinion. 71 In Koolan Iron Ore Pty Ltd v Infrassure Ltd,39 Jackson J considered a paragraph in an affidavit that stated that 'Infrassure received reports from time to time during the adjusting process but did not itself conduct the loss adjusting process'.40 72 Justice Jackson accepted that the affidavit went further than referring to a transaction and mentioned a class of communications, 35 Australink [14]. 36 Australink [21] - [22]. 37 Apotex Pty Ltd v ICOS Corporation (No 2) [2017] FCA 589 (Apotex). 38 Apotex [19]. 39 Koolan Iron Ore Pty Ltd v Infrassure Ltd [2020] FCA 233 (Koolan Iron). 40 Koolan Iron [8]. -- 17 of 21 -- [2026] WASC 207 PALMER J Page 18 namely 'reports'. His Honour also accepted that it was highly likely that at least some of those communications were in written form.41 73 Justice Jackson considered that the reference to 'reports' was indistinguishable in form to the reference to 'complaints' in Australink. His Honour observed that both were descriptions of communications which in the circumstances are highly likely to include documents.42 74 His Honour concluded that the authorities compelled the conclusion that while it was highly likely that the reports mentioned included documents, the statement did not mention any document in the manner required by the relevant rule.43 75 Justice Jackson noted that emails from Infrassure confirmed that there were documents. His Honour accepted that there had been a concession that there were documents but he observed that Marubeni shows that this is not enough. He said that evidence outside of an affidavit which establishes that the allusion is to a document will not mean that the pleading or affidavit 'mentions' the document to the necessary level of direct allusion.44 76 In Canstruct Derrington J had to consider whether documents were mentioned in an affidavit which stated that the deponent would 'receive from members of Canstruct's project team, weekly and monthly progress reports, detailing the work completed by Canstruct in either the preceding week (or month) and the work that was planned to be completed for the coming week (or month as the case may be)'.45 77 The affidavit attached weekly site reports from site. The affidavit stated that as a result of the matters deposed to, the deponent was very familiar with the site and the work performed by Canstruct.46 78 It was submitted that when the affidavit was read as a whole it was evident that the relevant paragraph referred to documents.47 79 Justice Derringtonconsidered that that case before him could not be distinguished from Koolan Iron. He said that there was nothing in a general reference to 'weekly and monthly progress reports' to indicate 41 Koolan Iron [14]. 42 Koolan Iron [16]. 43 Koolan Iron [17]. 44 Koolan Iron [19]. 45 Canstruct [7]. 46 Canstruct [7]. 47 Canstruct [9]. -- 18 of 21 -- [2026] WASC 207 PALMER J Page 19 whether the reports in question were written, oral or a combination of both.48 80 His Honour did not consider that the fact that particular reports had been produced meant that the general reference to reports was a direct allusion to documents. His Honour also noted that there was no explicit reference to any document with the title of the documents for which production was being sought. His Honour considered that as there was no mention of the documents, there would be no procedural unfairness in not producing them.49 Whether the documents sought were referred to in the Further Affidavit 81 The Production Application seeks production of 'Shine Lawyers' historical file and communications with them'. 82 I do not consider that the references made to communications in the Further Affidavit made direct allusions to a document. Like the 'complaints' in Australink and the 'reports' in Koolan Iron and Canstruct, the communications may have been in writing, or they may have been oral. Indeed, that much seems to have been recognised in the terms of the subpoena issued with Shine Lawyer's file which sought to subpoena, amongst other things, 'file notes or similar records recording the substance of any telephone or other verbal communications with Josanne Lyn Cronin about the potential claim'. 83 The reference to Shine Lawyers' file was made in paragraph 22 of the Further Affidavit which states: 'I first obtained Shine Lawyers' historical file only in January 2026, after making a formal request'. 84 The defendant argued that the reference to the 'file' is a compendious reference to a class of documents. 85 In my view, this submission involves reading the word file as being a reference to the documents within the file. Given that neither paragraph 22, nor the balance of the affidavit says anything about the contents of the file (including that it contained any documents) understanding the reference to the word file in this way involves making an inference that the file contained documents. While such an inference may readily be drawn, as Besanko J observed in Apotex,50 a 48 Canstruct [29]. 49 Canstruct [30] - [32]. 50 Apotex [19]. -- 19 of 21 -- [2026] WASC 207 PALMER J Page 20 reference by inference or an implied reference is not sufficient to engage the rule, even if it is almost certain that a document exists. 86 Further, the statement made in paragraph 22 seems to have been made to explain when the plaintiff obtained the file. The statement does not rely upon any contents of the file to bolster or support the plaintiff's position. As I have said, the Further Affidavit makes no reference to the contents of the file. In these circumstances, as in Apotex,51 there is therefore no procedural unfairness in not permitting the defendant access to the file. 87 I therefore do not consider that paragraph 22 of the Further Affidavit refers to the documents within the Shine Lawyers' file, such that they must be produced pursuant to O 26 r 8(2) of the Rules of the Supreme Court. I will therefore not order the production of the documents sought by the Production Application pursuant to that order. Conclusion 88 For these reasons, I will not set aside the subpoena. Nor will I order the production of the documents sought by the Production Application. 89 I will hear from the parties on the question of costs. 51 Apotex [19]. -- 20 of 21 -- [2026] WASC 207 PALMER J Page 21 I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia. VS Associate to the Hon Justice Palmer 29 MAY 2026 -- 21 of 21 --