The plaintiff is a minor and his tutor is his mother. He sues the State of New South Wales which is legally liable for any negligence of the NSW Department of Education. By a Statement of Claim filed on 17 June 2019 the plaintiff alleges that he was injured in an incident at his school on 14 March 2018. He seeks damages for both physical and psychological injuries.
[3]
Claim for privilege
On 22 August 2019 the plaintiff's solicitor served a subpoena upon the defendant. The subpoena seeks access to, inter alia, all incident reports, investigation reports, statements, meeting notes and teacher notes relating to the incident in which the plaintiff alleges he was injured.
Attard v State of New South Wales [2020] NSWDC 148 | Case summary | Zoe
The defendant has complied with the subpoena. It claims privilege over three documents.
By a Notice of Motion filed on 16 March 2020, the plaintiff has sought access to the documents produced by the defendant and identified as Packet S-3. This packet contains all of the documents produced by the defendant over which a claim for privilege is made.
Since the filing of the Notice of Motion, further consideration has been given by the defendant to the claim for privilege. Some of the documents in Packet S-3 have since been voluntarily produced to the plaintiff for inspection. There are three remaining documents over which the claim for privilege is maintained. They are identified in par 19 of the written submissions for the defendant filed on 22 April 2020.
The documents are:
1. a Student Incident Report prepared by a Deputy Principal of the school;
2. a Teacher Incident Report dated 14 March 2018; and
3. an email from the plaintiff's class teacher to the Principal and a Deputy Principal at the school, dated 16 March 2018.
With the consent of the parties I inspected the three documents over which privilege is claimed. I find that the documents are accurately described in par 19 of the defendant's written submissions. In relation to document (3), while it is in the form of an email, it is a detailed report by the classroom teacher concerning the incident.
The claim for privilege is based on the "litigation privilege" contained in s 119 of the Evidence Act 1995 (NSW).
Section 131A of the Evidence Act provides as follows:
"Application of Part to Preliminary Proceedings of Courts
(1) If:
(a) a person is required by a disclosure requirement to give information, or to produce a document, which would result in the disclosure of a communication, a document or its contents or other information of a kind referred to in Division 1, 1A, 1C or 3, and
(b) the person objects to giving that information or providing that document,
the court must determine the objection by applying the provisions of this Part (other than ss 123 and 128) with any necessary modifications as if the objection to giving information or producing the document were an objection to the giving or adducing of evidence.
(2) In this section, disclosure requirement means a process or order of the court that requires the disclosure of information or a document and includes the following:
(a) a summons or subpoena to produce documents or give evidence,
(b) pre-trial discovery,
(c) non-party discovery,
(d) interrogatories,
(e) a notice to produce,
(f) a requirement to produce a document under Division 1 of Part 4.6."
The defendant by means of the subpoena served by the plaintiff is therefore required by a "disclosure requirement" to produce a document which would result in the disclosure of information protected by "client legal privilege" pursuant to Div 1 in Pt 3.10 of the Evidence Act. The defendant has objected to providing the privileged documents which means that, pursuant to s 131A(1), the court must determine the objection by applying the provisions of Pt 3.10.
Sections 117 and 119 of the Evidence Act are found in Pt 3.10 of that Act.
Section 117 of the Evidence Act contains the following relevant definitions:
"confidential communication means a communication made in such circumstances that, when it was made-
(a) the person who made it, or
(b) the person to whom it was made,
was under an express or implied obligation not to disclose its contents, whether or not the obligation arises under law.
confidential document means a document prepared in such circumstances that, when it was prepared-
(a) the person who prepared it, or
(b) the person for whom it was prepared,
was under an express or implied obligation not to disclose its contents, whether or not the obligation arises under law."
Section 119 of the Evidence Act states:
"119 Litigation
Evidence is not to be adduced if, on objection by a client, the court finds that adducing the evidence would result in disclosure of-
(a) a confidential communication between the client and another person, or between a lawyer acting for the client and another person, that was made, or
(b) the contents of a confidential document (whether delivered or not) that was prepared,
for the dominant purpose of the client being provided with professional legal services relating to an Australian or overseas proceeding (including the proceeding before the court), or an anticipated or pending Australian or overseas proceeding, in which the client is or may be, or was or might have been a party."
[4]
Evidence of the School Principal
The defendant tendered the affidavit of the Principal dated 22 April 2020. The Principal was not required for cross-examination. The Principal did not witness the incident but was informed about it by one of the three Deputy Principals.
On 15 March 2018, being the day after the incident, the Principal met with the plaintiff's mother. During that conversation, the plaintiff's mother said words to the effect that she was going to take legal action as a result of her son being injured. The plaintiff's mother said that she had already consulted a lawyer because she believed that the class teacher had been negligent.
On 15 March 2018 the Principal received an email from the plaintiff's mother formalising her complaint about the incident. The email annexed a copy of the Department of Education Code of Conduct and the United Nations Convention on the Rights of the Child.
The email from the plaintiff's mother contained the phrase "failed duty of care and neglect for a child…"
The affidavit of the Principal annexed an extract from the Department of Education Policy for Reporting School Accidents (Policy). Under the heading "Why are accident reports prepared?" the following appears:
"School accident reports are prepared solely for the purpose of assisting the Department's legal advisors to assess and, if appropriate, defend claims made against it as a result of persons being injured on school sites or during the course of school activities. Legal professional privilege is likely to attach to school accident reports.
It is well established that persons injured on school sites or during the course of school activities may wish to claim compensation from the Department. These claims may involve litigation. Sometimes there is a considerable period of time between the date of the accident and the date of a claim being made. The Department's ability to properly consider and/or defend claims depends to a significant degree on the information contained in school accident reports."
Under the heading "What information should be provided in the accident report?", the following appears:
"Witness statements should be obtained from any person, including a student, who has direct knowledge of the incident."
The Policy says that accident reports should be retained for seven years or until the injured person attains the age of 25 years, whichever is the longer. Clearly this is designed to ensure that such reports are kept while the limitation period is still running for the bringing of an action.
The affidavit of the Principal deposes to the following matters:
1. The Principal was aware of the Policy.
2. Both because of the Policy, and for school record-keeping purposes, the Principal was aware of the need to create incident reports in relation to the subject incident.
3. After speaking to the mother and receiving her email, it was the belief of the Principal that there would be litigation in respect of the subject accident and it would be necessary to obtain statements from relevant witnesses, including the class teacher, for the purpose of obtaining legal advice and defending such proceedings.
4. The Principal was of the belief that such statements would be confidential and would be for the sole use of the Department of Education.
The Principal deposed that after receiving the email on 15 March 2018, she contacted the three Deputy Principals and advised them that she had spoken to the mother, who had stated that she intended to pursue legal action against the class teacher, and that she had already consulted a lawyer. The Principal asked one of the Deputy Principals to collect statements from people who were there at the time of the incident.
On 16 March 2018 the Principal received an email from the class teacher which contained her report in relation to the subject incident. From my reading of the third document claimed to be confidential, this is the email which the Principal received.
The Principal deposed that after receiving all statements and reports she placed them into one folder "because I strongly suspected that they would be needed later for legal proceedings".
As previously recited, there was no cross-examination of the Principal on her affidavit. That decision was sensibly made by counsel for the plaintiff, after he had the opportunity to consult with the plaintiff's mother and with his instructing solicitor.
[5]
Submissions for the plaintiff
Counsel for the plaintiff referred the court to the decision of Justice Bellew in Hunter New England Local Health District v Munters Pty Ltd [2018] NSWSC 788. The general principles applicable to a claim for privilege was set out at [79] of the judgment as follows:
"The principles which govern a claim for privilege under s 118 and/or s 119 of the Act include the following:
1. the party who claims the privilege bears the onus: ASIC v Rich [2004] NSWSC 1089;
2. the purpose of r 21.3(2)(d) is to provide sufficient particulars to a party seeking to inspect documents of the basis of any claim for privilege, so that such a claim can, if thought appropriate, be contested. Although a failure to comply with that rule does not preclude a party from claiming privilege, the rule is there for a purpose, and the failure to comply with it is not to be encouraged: Bailey v Department of Land and Water Conservation (2009) 74 NSWLR 333; [2009] NSWCA 100 esp. at [39]-[41] per Tobias JA;
3. the party claiming the privilege must recognise the need for focused and specific evidence in order to ground the claim. V erbal formulae, and bare conclusory assertions of purpose, are insufficient. A court determining a claim for privilege should, where possible, be assisted by evidence of the thought processes behind, or the nature and purpose of, the document(s) or communications(s) over which the claim is made: Barnes v Commission of Taxation [2007] FCAFC 88; 242 ALR 601 at [18]-[19] (Tamberlin, Stone and Siopsis JJ) citing Kennedy v Wallace (2004) 142 FCR 185; [2004] FCAFC 337, and National Crime Authority v S (1991) 29 FCR 203; [1991] FCA 234;
4. where privilege issues arise in the context of discovery, every effort should be made to ensure not only that there is compliance with relevant provisions of the rules, but also that the evidence adduced in support of the claim for privilege is, in all respects, adequate and compelling. It is both inappropriate and risky for inadequacies in the evidence to be ignored on the basis that a judge can inspect the documents and decide the issues for himself or herself: Bailey v Department of Land and Water Conservation (supra) at [45] per Tobias JA;
5. the Court has a discretion under s 133 of the Act to inspect any documents over which a claim for privilege is made: ASIC v Rich (supra); Bailey v Department of Land and Water Conservation (supra) at [57] per Tobias JA;
6. bearing in mind the importance of proper evidence being provided to the court which fully and fairly discloses the basis of a claim for privilege, the court should not normally be asked to fill gaps by exercising its discretion to inspect documents which are kept from the other party: Ensham Resources Pty Ltd v AIOI Insurance Co Ltd (2012) 209 FCR 1; [2012] FCAFC 191 at [111] per Buchanan J;
7. ss 118 and 119 apply a dominant purpose test. The word "dominant" is used in that sense to describe a purpose that is the ruling, prevailing and most influential purpose: ASIC v Rich (supra); R v Rogerson; R v McNamara (No 31) [2016] NSWSC 195;
8. whether a particular purpose is dominant will be a question of objective fact: Singapore Airlines v Sydney Airports Corporation Ltd [2004] NSWSC 380 at [35] citing Sparnon v Apand Pty Ltd (1996) 68 FCR 322 at 327-328. That said, the subjective purpose of a communication or document, although not conclusive, may remain a relevant consideration: Asahi Holdings (Australia) Pty Ltd v Pacific Equity Parties Pty Ltd [2013] FCA 998;
9. the relevant time for ascertaining the purpose is the time at which the document or communication was made: ASIC v Rich (supra)."
In the present case it could not be said that the defendant has merely made a bare assertion that the dominant purpose for the documents was for use in prospective litigation. The affidavit of the Principal and the annexure to that affidavit of extracts from the Policy make it plain that statements should be taken from witnesses to incidents in schools, as soon as possible after the incident, for use in future litigation.
In the present case, the following facts are also relevant to the issue of dominant purpose:
1. The plaintiff's mother attended school on the day of the incident - Statement of Claim par 13;
2. The plaintiff's mother told the Principal on the day after the incident that she had already consulted a lawyer;
3. The plaintiff's mother told the Principal on the day after the incident that she was going to take legal action as a result of her son being injured;
4. The email from the plaintiff's mother on the day after the incident used terminology such as "duty of care" and "neglect" which suggests not only that legal advice had been obtained, but that an action for damages in negligence was being contemplated.
While in par 11 of the affidavit of the Principal, it was said that the incident reports were created both because of the Policy and "for school record-keeping purposes", I find that the dominant purpose for creating the three documents over which privilege is claimed was for the school being provided with professional legal services relating to an anticipated court action. I make this finding based upon the unchallenged evidence contained in the affidavit of the Principal, and the clear Policy directing principals to obtain incident reports for the purposes of obtaining legal advice and defending any contemplated proceedings.
Counsel for the plaintiff was at the distinct disadvantage of not having seen the three documents over which privilege was claimed. In relation to the first document, he pointed out that there was no date on the document. However, having read the document, I find that it was clearly a document created to set out details of the incident, and must have been prepared at a time very shortly after the incident. Counsel for the plaintiff pointed out that the Teacher Incident Report dated 14 March 2018 was prepared on the day of the incident, which was the day before the plaintiff's mother attended at the school and indicated that she was proposing to take legal action. However, the plaintiff's mother had attended at the school on the day of the incident, and I infer that the purpose of creation of the report of that particular teacher on 14 March 2018 was to make a contemporaneous record of the recollections of that teacher, in accordance with the Policy.
Counsel for the plaintiff submitted that the description of the third document, being an email from the class teacher to the Principal and a Deputy Principal, did not indicate that it was a report as contemplated by the Policy. I have had the advantage of having read the document, and it is clearly expressed to be a report and a narrative of what happened in the incident.
[6]
Conclusion
I find that the three documents over which privilege is claimed are confidential documents prepared for the dominant purpose of the defendant being provided with professional legal services relating to anticipated Australian court proceedings, being an action in negligence for damages suffered by the plaintiff and arising out of an incident at the school attended by the plaintiff.
I uphold the claim for privilege and will dismiss the plaintiff's Notice of Motion.
Counsel for the defendant very fairly submitted that if the claim for privilege was upheld, then the costs of the motion should be costs in the cause. I will make that order.
My orders are:
1. Dismiss the plaintiff's Notice of Motion filed on 16 March 2020.
2. Order that the costs of the motion be costs in the cause.
[7]
DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.
Decision last updated: 29 April 2020