Evidence - Client legal privilege - Whether the defendant doctor's responses to Australian Health Practitioner Regulation Agency complaint by the plaintiff attract privilege - Advice privilege - Litigation privilege.

Evidence Act 2001, ss 117, 118(c)

Judgment Number: [2025] TASSC 35

ROBIN CHARLES BURGESS, LACHLAN CHARLES BURGESS and

CONSULTANT PATHOLOGY SERVICES PTY LTD (ACN 009 581 159),

1. This is the determination of an application under r 394 by the seventh defendant seeking production of a document for inspection. The third party objects to producing the document because to do so would result in disclosure of a confidential document, prepared for the dominant purpose of a lawyer providing legal advice to the third party: Evidence Act 2001, s 118(c).
2. The relevant document appears as item 4 in Part II of the First Schedule to the third party's list of documents filed on 23 December 2024 and is described as follows:

"4 Email exchange between Grant Phelps, Acting EDMS, Kirsten Gibson, Tanya Dargaville, Medico-Legal Advisor Royal Hobart Hospital, Rosemary Harrup, medicolegalrhh@ths.tas.gov.au, and Anna Oakley on 12 July and 6 August 2019."

1. The principal proceedings in this action were commenced by writ on 22 December 2022. The plaintiffs claim damages for personal injuries and loss occasioned by the death of Narelle Jane Burgess (the deceased) who died on 5 January 2020, as a result of the alleged negligent medical treatment of the deceased by the defendants. The action includes a claim under the Fatal Accidents Act 1934. The plaintiffs allege that the defendants misdiagnosed the deceased with lymphoma, when the correct diagnosis was metastatic melanoma. The action relates to negligent advice and treatment provided to the deceased between about 2017 until about 16 July 2019.
2. Dr Byard - the seventh defendant - claims indemnity or contribution from the Tasmanian Health Service (THS) because of the role played by medical practitioners at the Royal Hobart Hospital (RHH) in their treatment of the deceased. The seventh defendant alleges that there was a failure by the THS in respect to the correct analysis and review of the pathology information and reports issued by the second and third defendants in June 2017, and June 2018; and further or alternatively that the treatment recommended by the THS, or administered to the deceased at the RHH by the THS, was negligent and caused or contributed to any injury and loss alleged by the plaintiffs.
3. By letter to the Court dated 18 February 2025, the seventh defendant applied for an order that the third party produce item 4 for inspection. On 26 February 2025 I made an order under r 395 that the third party produce item 4 to the Court, together with an outline of its submissions in support of its objection to producing item 4. I also made an order that the third party deliver to the other parties such parts of its submissions which would not disclose the content of the relevant documents or waive privilege. The third party, the seventh defendant and the plaintiffs have each filed written submissions and the application has been determined without the need to be heard further. The plaintiffs support the seventh defendant's application for production.

1. The third party justifies its claim of privilege over item 4 by pointing to the nature and text of the four emails contained in the document itself, together with affidavit evidence describing the circumstances in which the emails were exchanged. The third party produced item 4 to the Court pursuant to an order made under rule 395. I have inspected item 4 as a part of my determination of the claim of privilege. The third party also read the affidavits of Tanya Jane Dargaville sworn 24 April 2025 and Grant John Phelps sworn 2 May 2025.
2. Dr Phelps' evidence was as follows. He stated that at the date of the emails in July-August 2019 he was the acting executive director of medical services within the THS - South. Dr Phelps said that he had certain responsibilities for THS's quality system and for supporting medical clinicians. In that role, he had been made aware of a serious clinical incident concerning the plaintiff. He "identified that this incident had the potential to create a legal risk for THS" (par.5). As a result, Dr Phelps said that he made contact with Ms Dargaville in her capacity as THS-South Medico­Legal Advisor to alert her to the potential legal issues arising from the deceased's case with the expectation that she would raise this matter with both the Government's insurers and the Government's solicitors (par. 6).
3. Ms Dargaville's evidence was as follows. She is a legal practitioner and registered nurse. In July-August 2019 she was employed as the Medico-Legal Adviser with the THS. That role included investigating medico-legal situations, complaints and incidents; and facilitating and managing RHH litigation and liaising with Crown law. Ms Dargaville stated that if a matter arose at the RHH which did or might involve some form of civil litigation, such as personal injuries claims, her role required her to liaise with the civil litigation lawyers employed in the litigation section of the Office of the Solicitor-General. In that role she was an intermediary between clinical and other staff involved in a matter at the RHH and the Crown Law lawyers involved. This role required Ms Dargaville to receive and send legally privileged communications (pars 6-8). Where Ms Dargaville received information concerning a civil litigation matter of some type, she would create a file for the purpose of containing legally privileged documents for use in current or anticipated litigation (par 10).
4. The seventh defendant objected to par 12 of Ms Dargaville's affidavit where she stated:

"12 The first email was sent by Dr Grant Phelps (Dr Phelps) to me in my capacity as Medico­Legal Advisor at the RHH. At that time, Dr Phelps was the Acting Executive Director of Medical Services (EDMS) at the RHH. The role of the EDMS at the RHH was to provide clinical management, governance and resource management at the hospital. The EDMS would be advised about any serious incidents or events at the RHH, and if there was a legal element to the issue, the EDMS would in turn notify me."

1. The seventh defendant objects to this statement on the basis that Ms Dargaville is impermissibly giving evidence about Dr Phelps's state of mind at the time he sent his email to her. I reject this submission. Ms Dargaville is stating facts and circumstances relevant to the context within which the communication occurred. Having regard to the affidavits of Ms Dargaville and Dr Phelps, together with the terms of the first email, so much is obvious. The statement "if there was a legal element to the issue, the EDMS would in turn notify me" is one of fact, as to a system of work within THS - how the way that the Executive Director of Medical Services and the Medico-Legal Advisor interacted professionally. In my view this paragraph deals with the kind of " surrounding facts and circumstances, particularly previous dealings between the parties" referred to by McHugh J in Esso Australia Resources Ltd v FCT [1999] HCA 67; (1999) 201 CLR 49 at [77]. Paragraph 12 is relevant and admissible. The objection is without merit and is dismissed.

1. The seventh defendant objects to par 13 of Ms Dargaville's affidavit where she stated:

"13 Dr Phelps sent the first email to me in that context. He copied that email to Dr Rosemary A Harrup (Dr Harrup) who is referred to as "Rosie" in the email. Dr Harrup is an Oncologist and Dr Phelps states in the email that it was Harrop who had alerted him about the case concerning Narelle Burgess...."

1. The seventh defendant objects to par 13 on the basis that Ms Dargaville "seeks to determine the context in which" Dr Phelps sent the first email to her. I reject that submission. Ms Dargaville is deposing to her understanding that the email had come to her because her role included investigating medico-legal situations, liaising with Crown law and creating a file in respect of such incidents to contain the privileged material for that purpose. Ms Dargaville's reference to 'context' merely references the system of work she had described, whereby the Executive Director of Medical Services would notify the Medico-Legal Advisor to the RHH of certain matters of a medico-legal nature. Paragraph 13 provides evidence of relevant context. Paragraph 13 also contains circumstantial evidence relevant to the purpose and intended use of the emails comprising item 4 which is, in turn, relevant to third party's claim of privilege. The objection is overruled. The evidence is relevant and admissible.
2. The seventh defendant objects to par 16 of Ms Dargaville's affidavit where she stated:

"16 ... Information obtained from Dr Harrup and Ms Gibson formed part of my medico-legal file concerning the case."

1. The seventh defendant's objection to the final sentence of par 16 is that "there is no foundation of fact" to what the "information'" obtained from Dr Harrup was, nor for when and why the information was obtained and how it might be relevant to the emails under consideration. Ms Dargaville is perfectly entitled to state that the file which she had created in this case contained privileged information obtained from the clinician who was involved in the care of the deceased - being (it can be inferred) a serious incident involving a legal element. The seventh defendant does not identify any legal basis for the objection. While the relevance of the sentence may not be central and it may not warrant being given much weight, it deposes to facts relevant to a fact in issue, being the context within which item 4 was prepared. On that basis it is admissible and the objection is dismissed.

1. The law governing the determination of this application is the Evidence Act 2001 (the Act), Part 10, which applies to the determination of an objection to the production of a document on the grounds of legal advice privilege in the context of pre-trial discovery in the court's civil jurisdiction: the Act s 131A.
2. The third party has the onus of showing that item 4 is privileged: Grant v Downs [1976] HCA 63; 135 CLR 674 at 689. The third party must justify that claim either by pointing to the nature of the document or by evidence describing the circumstances in which they were brought into existence. The onus will only be discharged if the third party establishes facts from which the Court may determine that the privilege is being properly claimed: Powercor Australia Ltd v Perry [2011] VSCA 239; [2011] 33 VR 548 at [42] per Warren CJ, Nettle and Tate JJA.
3. Each party referred to Hoe v Kode [2024] TASSC 51 at [16] which assembled some applicable principles at [16]. The seventh defendant referred to Holt v Mitsubishi Motors Corporation [2025] FCA 191, pars [34]-[38], as containing useful guidance in relation to the task of determining the issue of 'dominant purpose'.
4. The basis upon which the third party objects to the production of the document described at item 4, is that it would result in disclosure of the contents of a confidential document, prepared by it for the dominant purpose of a lawyer, or one or more of the lawyers, providing legal advice to the client: the Act, s 118(c).
5. The Evidence Act 2001, s 118 is in the following terms:

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 made between the client and a lawyer; or

(b) a confidential communication made between 2 or more lawyers acting for the client; or

(c) the contents of a confidential document, whether delivered or not, prepared by the client, lawyer or another person-

for the dominant purpose of the lawyer, or one or more of the lawyers, providing legal advice to the client."

1. The third party acknowledges that the emails constituting item 4 predate the commencement of the action (i.e. 12 July 2019 and 6 August 2019 - the writ was filed on 22 December 2022) and therefore that it must abandon the objection as set out in the list of documents. However, the third party's objection to producing item 4 now rests upon s 118(c) of the Act. For the purposes of the Act, s118(c), there are three issues for determination:

(ii) Was item 4 prepared by "the client, lawyer or another person"?

(iii) Was item 4 prepared for the dominant purpose of the lawyer, or one or more of the lawyers, providing legal advice to the client.

1. The Act, s 118(c), requires the existence of a 'confidential document'. That expression is defined as a document prepared in such circumstances that when it was prepared, either the person who prepared it or 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": s 117.
2. There is no issue as to who authored each email. The third party submits that the subject matter of the emails is inherently confidential as it concerns the medical case of the deceased - who was a patient at the RHH which was operated by the third party and therefore subject to doctor-patient confidentiality. I accept that submission.
3. The third party also submitted that the contents of item 4 is also in the nature of personal information, protected under legal regimes established under the Privacy Act 1988 (Cth) and the Personal Information Protection Act 2004 (Tas). I accept that item 4 contains 'health information' of the deceased, relating to a 'health service' provided to her for the purposes of the Personal Information Protection Act 2004.
4. I am satisfied, having regard to the terms of the email exchanges comprising item 4, that everyone sending, receiving or copied into the emails were under an express or implied obligation not to disclose their contents.

Prepared by "the client, lawyer or another person"

1. The third party submits that in this case, item 4 was prepared by both Dr Phelps and Ms Dargaville, and each are to be regarded as 'another person' who prepared the document for the purposes of s 118(c). The seventh defendant submits that Dr Phelps and Ms Dargaville are not to be regarded as 'another person' because they are employees of the third party and therefore fall within the definition of 'client' in s 117, which includes an employee or agent of a client. I agree with the seventh defendant, but nothing turns on this point because s 118(c) operates even if the client prepares the document for the dominant purpose of a lawyer providing legal advice to the client.

For the dominant purpose of the lawyer, or one or more of the lawyers, providing legal advice to the client.

1. 'The client' to whom the legal advice is to be provided for these purposes is the third party. I accept that the evidence before me objectively establishes that the emails were created in order that legal advice be provided to the third party - ultimately by the State Litigation Office - in respect of the incident relating to the deceased. Within the current circumstances of this particular case, I have construed the expression "the lawyer or one or more of the lawyers" in s 118(c) as "a lawyer, or one or more lawyers", being the lawyers in the State Litigation Office. I also accept the third party's contention that the text of the emails comprising item 4 speaks for itself in establishing this to be the dominant purpose for the preparation of each of the emails.
2. The seventh defendant's application is dismissed. I order that item 4 is not to be produced to any other party to the action. Should the parties wish to be heard as to any further orders, I invite them to write to my associate seeking a suitable time to be heard.