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Union Steamship Co. of New Zealand v MelbourneHarbour Trust Commissioners (1884) 9 App. Cas. 365

Watkins v State of Queensland [2008] 1 Qd R 564

X7 v Australian Crime Commission (2013) 87 ALJR 858

ON APPEAL FROM A SINGLE JUDGE OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

No. ACTCA 57 – 2012

No. SC 246 of 2010

Judges: Burns and Katzmann JJ and Nield AJ

ACT Court of Appeal

Date: 9 August 2013

IN THE SUPREME COURT OF THE )

) No. ACTCA 57 – 2012

AUSTRALIAN CAPITAL TERRITORY ) No. SC 246 of 2010

)

COURT OF APPEAL )

ON APPEAL FROM A SINGLE JUDGE OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

BETWEEN: NICHOLAS MORRIS CLEARY

Appellant

AND: DOMENICO RINAUDO

Respondent

ORDER

Judges: Burns and Katzmann JJ and Nield AJ

Date: 9 August 2013

Place: Canberra

THE COURT ORDERS THAT:

1. The appeal be allowed.

2. The appellant pay the respondent’s costs in accordance with the order made by Refshauge J on 21 December 2012.

IN THE SUPREME COURT OF THE )

) No. ACTCA 57 – 2012

AUSTRALIAN CAPITAL TERRITORY ) No. SC 246 of 2010

)

COURT OF APPEAL )

ON APPEAL FROM A SINGLE JUDGE OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

BETWEEN: NICHOLAS MORRIS CLEARY

Appellant

AND: DOMENICO RINAUDO

Respondent

REASONS FOR JUDGMENT

Judge: Burns J

Date: 9 August 2013

Place: Canberra

1. I agree with the reasons for judgment of her Honour Katzmann J and the orders she proposes.

IN THE SUPREME COURT OF THE )

) No. ACTCA 57 – 2012

AUSTRALIAN CAPITAL TERRITORY ) No. SC 246 of 2010

)

COURT OF APPEAL )

ON APPEAL FROM A SINGLE JUDGE OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

BETWEEN: NICHOLAS MORRIS CLEARY

Appellant

AND: DOMENICO RINAUDO

Respondent

REASONS FOR JUDGMENT

Judge: Katzmann J

Date: 9 August 2013

Place: Canberra

2. This appeal is concerned with the meaning and operation of provisions of the Civil Law (Wrongs) Act 2002 (ACT) (“Wrongs Act”) which, on their face, require respondents to certain personal injuries claims to disclose medical reports in their possession even where the reports would otherwise be subject to legal professional privilege. It raises two issues of principle:

(a) whether the pre-court procedures disclosure requirements in ch 5 of the Wrongs Act continue to operate after court proceedings have commenced; and

(b) whether s 68 of the Wrongs Act abrogates legal professional privilege over communications in documents created after court proceedings have commenced.

3. The matter is of some importance, not least because s 74 of the Wrongs Act makes it an offence to withhold information or documents from disclosure if the withholding is not permitted under ch 5 or approved by the court.

4. The precise question that arises for adjudication is whether the appellant is required to disclose to the respondent a report of a medical practitioner who had examined him on behalf of his insurer after litigation had begun. The appellant argued that the report did not have to be disclosed because the compulsory disclosure provisions apply only to reports obtained before the commencement of proceedings. The facts

5. The respondent was allegedly injured in a motor vehicle accident on 22 July 2007 when the vehicle he was driving was struck by a vehicle driven by the appellant. He claimed that the accident had caused injuries, principally to his back, neck and right shoulder.

6. In September 2008 the respondent’s solicitors wrote to NRMA Insurance (Insurance Australia Limited) (“NRMA”), with which the appellant’s vehicle was insured, enclosing a claim notification form and other background material. In early November 2008 NRMA replied, accepting the notice as complying with the provisions of the Wrongs Act and seeking further particulars of the claim. On 13 December 2008 NRMA admitted that the appellant had breached his duty of care to the respondent. In January 2009 the insurer made an appointment for the respondent to be examined by Dr WJ Coyle, an orthopaedic surgeon.

7. On 25 February 2009 Dr Coyle sent a medical report to the NRMA and on 6 March 2009 NRMA served that report on the respondent’s solicitors.

8. On 7 May 2010 the respondent commenced these proceedings by filing an Originating Claim and a Statement of Claim. The NRMA then instructed solicitors to act on the appellant’s behalf and those solicitors arranged for the respondent to be examined a second time by Dr Coyle. That examination took place on 2 December 2010. At some point in time the respondent’s solicitors asked the appellant’s solicitors for a copy of the report which followed this second examination. They refused the request, claiming legal professional privilege. The respondent then applied to the court for an order that the appellant provide them with the report and, in the alternative, that he be advised that Dr Coyle’s reports would not be relied on at trial.

9. The respondent contended that the appellant’s solicitors were bound to disclose the report regardless of whether it would otherwise be privileged. He said the obligation arose because of the terms of s 68 of the Act, read with s 72. THE PROCEEDINGS

10. The matter first came before the Master, who directed that the report be disclosed: Rinaudo v Cleary (2012) 6 ACTLR 116. The appellant appealed against that decision, and on 4 December 2012 the primary judge dismissed the appeal. His Honour held that, save to the extent that the Wrongs Act or the Court Procedures Rules 2006 (ACT) (“the Rules”) otherwise provide, the second report is exempt from production by reason of legal professional privilege. Nonetheless, his Honour held that the Master was correct to require disclosure.

11. This appeal is brought pursuant to leave granted by Refshauge J on 21 December 2012: Cleary v Rinaudo [2012] ACTCA 61.

THE LEGISLATIVE SCHEME

12. Chapter 5 is concerned with “pre-court procedures” for personal injuries claims (although some personal injuries claims are expressly excluded). So much is evident from the heading, which forms part of the Act (Legislation Act 2001 (ACT) (“the Legislation Act”), s 126(1)). The appellant’s fundamental point is that those words must be given some work to do.

13. Part 5.1 contains a definition section (s 49) and s 50, which is entitled “application”. It provides that ch 5 applies to all claims for damages for personal injury except for designated classes of claims of which this is not one. It contains no other limitation.

14. Part 5.2 details the procedures for making a claim. Section 51 provides that before a claimant brings a proceeding based on a claim relating to a personal injury he or she must give written notice to the respondent. It prescribes the content of the notice and the time within which it must be given and creates consequences for non-compliance (see also s 59).

15. Part 5.2 also imposes obligations on the respondent. The respondent must: notify the claimant of anyone else against whom the claimant might bring proceedings and to give a copy of that notice to the other person (s 52); provide a preliminary written response to the notice of claim (s 52) and later a more detailed response (s 54); and try to resolve a claim including by making offers of settlement (s 61).

16. Section 62 provides that noncompliance with pt 5.2 will have certain costs consequences and will limit the court’s power to award interest.

17. Part 5.2 also includes machinery provisions for adding respondents and for respondents to seek indemnity or contribution from others (ss 55‑57).

18. Part 5.3 is entitled “obligations of parties to give documents and information”. Its stated purpose (contained in s 63) is “to put the parties in a position where they have enough information to assess liability and quantum in relation to a claim”.

19. A claimant is obliged to give a respondent, within a certain time, copies of certain documents in his or her possession and information reasonably requested by the respondent about various matters relevant to the assessment (s 64).

20. Provision is made for joint expert reports (ss 65, 66) and, in the absence of agreement, for a respondent to procure one (s 67).

21. Section 68 requires a respondent to a claim to give the claimant copies of particular kinds of documents in its possession that are “directly relevant to a matter in issue in the claim”. Those documents include “reports about the claimant’s medical condition or prospects of rehabilitation”. Section 68 provides: Respondent to give documents etc to claimant (1) A respondent must give a claimant — (a) copies of the following in the respondent’s possession that are directly relevant to a matter in issue in the claim: (i) reports and other documents about the accident claimed to have given rise to the personal injury to which the claim relates; (ii) reports about the claimant’s medical condition or prospects of rehabilitation; (iii) reports about the claimant’s cognitive, functional or vocational capacity; and (b) if asked by the claimant— (i) information that is in the respondent's possession about the circumstances of, or the reasons for, the accident; or (ii) if the respondent is an appellant of a person for the claim—information that can be found out from the insured person for the claim about the circumstances of, or the reasons for, the accident. (2) The respondent must give the copies mentioned in subsection (1) (a)— (a) within the period prescribed by regulation (or, if no period is prescribed, within 1 month after the day the respondent receives a complying notice of claim); and (b) to the extent that a report or other document mentioned in subsection (1) (a) comes into the respondent’s possession later, within 7 days after the day it comes into the respondent’s possession. (3) The respondent must respond to a request under subsection (1) (b) within the period prescribed by regulation (or, if no period is prescribed, within 1 month after the day the request is received). (4) If a claimant requires information given by a respondent under this section to be verified by statutory declaration, the respondent must verify the information by statutory declaration. (5) If a respondent fails, without proper reason, to comply fully with this section, the respondent is liable for costs to the claimant resulting from the failure.

22. No period for the purpose of subs (2) has been prescribed by regulation.

23. There are similar obligations on the respondent to provide copies of documents to a potential contributor (s 69) and vice versa (s 70).

24. Part 5.4 is entitled “other provisions – pre-court procedures”.

25. Section 72 provides: Nondisclosure of documents etc — client legal privilege (1) A party is not obliged to disclose a document or information under this chapter if the document or information is protected by client legal privilege. (2) However, an investigative report, medical report or report relevant to the claimant’s rehabilitation must be disclosed even though otherwise protected by client legal privilege. (3) A regulation may prescribe exceptions to subsection (2). (4) If a report mentioned in subsection (2) is required to be disclosed, it may be disclosed with the omission of passages containing only statements of opinion. (5) In this section: investigative reports does not include a document prepared in relation to an application for, an opinion on or a decision about indemnity against the claim from the Territory.

26. The obligation to disclose may be excused on application to the court in the case of suspected fraud on the part of the claimant (s 73) and does not arise where the document or information is already in the other party’s possession (s 77). Otherwise, withholding information or documents from disclosure is an offence, punishable by a maximum penalty of 100 penalty units (s 74) and the non-compliant party may not use the document “in a later court proceeding based on the claim, or the deciding of the claim, unless the court otherwise orders” (s 75). Compliance can be enforced on application to the court (s 78).

27. The court may give leave to a claimant to begin proceedings despite noncompliance if satisfied there is an urgent need to do so (s 79).

28. There are penalties for making knowingly false or misleading statements in any notice, response or other document given under chapter 5 (s 80). THE DECISIONS BELOW

29. The Master held that Dr Coyle’s first report was never privileged and, even if it were, privilege would not have been waived when it was provided to Mr Rinaudo because it was provided under compulsion of law (by s 68 of the Wrongs Act).

30. His Honour held that ch 5 continues “to have application” after court proceedings have been instituted. He gave three reasons for reaching this conclusion. First, he said that the interpretation was consistent with the clear purpose of the chapter, being the settlement of personal injury claims at the earliest practicable time and reducing costs in litigation. Secondly, he relied on the definition of “court” in s 49, a portion of which, he considered, would have been “otiose” if the appellant’s argument were correct. Thirdly, he observed that the construction he preferred was consistent with the decision of the Queensland Court of Appeal in Angus v Conelius [2008] 1 Qd R 101 (“Angus v Conelius”). He thought that the differences in the respective statutes were immaterial.

31. He therefore ordered that a copy of Dr Coyle’s second report be given to Mr Rinaudo within seven days.

32. On appeal, the Chief Justice said (at [14]) that there was no doubt that the disclosure provisions of the Wrongs Act were intended to facilitate settlement of claims, “avoiding litigation”, and that that purpose “may well be advanced” by requiring disclosure in this case. His Honour also said that it was clear that the desirability of achieving that object was not diminished by the commencement of proceedings. He referred (at [18]) to the chapter heading as well as the definition of “court” in s 49 which, he said, did not “indicate a cut-off point at the commencement of proceedings”. He also said that Refshauge J, in dealing with an application to withhold documents from disclosure in a case of suspected fraud, had said that disclosure was an ongoing obligation that did not cease with the commencement of proceedings: Re an application under s 73 of the Civil Law (Wrongs) Act 2002 3 ACTLR 239 at [35]. The nub of his Honour’s reasons appears at [20]‑[21]: The appellant’s only argument which supports the contention of error on the part of the Master is that the provisions of Ch 5 are primarily directed to processes before action is commenced, including s 73 referred to by Refshauge J. To my mind that is an insufficient support for a construction inconsistent with the evident purpose of Ch 5, namely the settlement of actions before a court hearing is required.

THE APPEAL

33. There are four grounds pleaded in the notice of appeal but all boil down to one contention: that the primary judge erred in holding that the provisions of ch 5 of the Wrongs Act apply after court proceedings have begun. The argument

34. The appellant submitted that the courts below: · failed to correctly identify the purpose of the pre-court procedure provisions so as to properly construe s 68; · failed to give effect to the literal and grammatical language of the relevant provisions; and · failed to apply the principle of statutory construction that there must be “a clear statutory intention” to abrogate common law rights including client legal privilege.

Does the duty imposed by s 68 extend beyond the commencement of court proceedings?

35. This question is to be answered by the application of well-established principles.

36. In Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 at 384 [78] the plurality said: [T]he duty of a court is to give the words of a statutory provision the meaning that the legislature is taken to have intended them to have. Ordinarily, that meaning (the legal meaning) will correspond with the grammatical meaning of the provision. But not always. The context of the words, the consequences of a literal or grammatical construction, the purpose of the statute or the canons of construction may require the words of the legislative provision to be read in a way that does not correspond with the literal or grammatical meaning.

37. The modern approach to statutory interpretation requires that context be considered at the outset and not merely in the event of ambiguity: K & S Lake City Freighters Proprietary Limited v Gordon & Gotch Limited (1985) 157 CLR 309 at 315.

38. In any event, the Legislation Act commands that in working out the meaning of an Act, the provisions of the Act be read in the context of the Act as a whole (s 140) (“legislative context”) and entitles the Court to consider extrinsic material (s 141) (“non-legislative context”). “Working out the meaning of an Act” is defined in s 138 to mean “resolving an ambiguous or obscure provision of an Act”, “confirming or displacing the apparent meaning of the Act”, finding the statutory meaning when its apparent meaning leads to a manifestly absurd or unreasonable result or, importantly, “finding the meaning of the Act in any other case”.

39. In my opinion, when the words of s 68 are read in context the duty it imposes does not extend beyond the commencement of court proceedings.

40. The appellant submitted that “the literal grammatical meaning of the legislation is that ch 5 is limited to “pre-court procedures”, not “pre-hearing” procedures”. But read literally and grammatically the section is not so limited. There are two reasons, however, to treat them that way. One is their legislative context. Part of that context is that they appear in a chapter which is headed “pre-court procedures”. The other is the legislative purpose.

41. The argument to the contrary was based, in part, on the approach taken to comparable legislation in Queensland. Yet, there is reason to distinguish the Queensland cases.

42. In Suncorp Metway Insurance Limited v Hill [2004] 2 Qd R 681 at [22] Jerrard JA (with whom McPherson JA and Fryberg J agreed) said that the obligation imposed on a respondent by s 47 of the Motor Accidents Insurance Act 1994 (Qld) (which in substance is the same as s 68 of the Wrongs Act) “would last until settlement of the claim or determination of it by judgment”. The remark was offered by way of obiter dicta. A similar issue, however, was considered in Angus v Conelius. In that case the Court held that there was nothing in the Motor Accident Insurance Act 1994 (Qld) (the relevant provisions of which are replicated in the PIPA) to suggest that the pre-court procedures in that Act applied only before litigation commenced.

43. Referring in particular to the obligations of both the claimant and the respondent to disclosure reports and other documents in ss 45 and 47 of the Motor Accident Insurance Act (compare ss 64 and 68 of the Wrongs Act) Jerrard JA, with whom Atkinson and Williams JJA agreed, said (at [18]): As to the merits of the appellant’s primary argument, neither s 45 nor s 47 – nor the other provisions in Division 3, providing inter alia for jointly arranged expert reports, and the examination of a claimant – is expressed to be inapplicable once legal proceedings are brought based on the claim. No obvious reason exists as to why the obligations and rights given by those sections should end at the compulsory conference. There is also a contextual implication that they do not. The obligation imposed on a claimant by s 45(3) expressly continues till the claim is “resolved”. That resolution could be by agreement or by judgment. (That obligation on the claimant is separate from the obligation on legal practitioners identified in Legal Services Commissioner v Mullins [2006] LPT 12.) The obligation on the claimant under s 45(3) therefore continues after proceedings have begun in a court. Mr North SC submitted that the word “claim” in s 45(3) had a more limited meaning than, and did not include, an action or proceeding in a court based on the claim, and referred to the discussion on “claim” in Newberry v Suncorp Metway Insurance Ltd [2006] 1 Qd R 519. But s 52(4) of the Act, appearing in Division 6 headed “Proceedings in court”, reads: “If judgment is given in favour of the claimant on the claim ...” A judgment could only be given in a legal proceeding, and is a manner of resolving a claim.

44. His Honour also referred to s 50 of the Act, which gives the court power to make orders if a party fails to comply with a duty imposed under division 2 (the duty to notify accidents and claims and provide information), division 3 (which deals with claims procedures) and division 4 (entitled “cooperation between claimant and insurer” and which contains s 45, and also ss 47 and 48). His Honour noted that the definition of “court” extends to a court before which a proceeding has already been brought (as does the ACT definition), and held, in effect, that s 50 was inconsistent with the argument that the duty of disclosure was limited to pre-court proceedings. His Honour also noted that comparable legislation in New South Wales (the Motor Accident Act 1988 and the Motor Accidents Compensation Act 1999) each contained (in s 48(3) and s 85(4) respectively) a specific provision that the duty of a claimant to co-operate legislated for in those Acts, applied only until court proceedings were commenced.

45. Similarly, Williams JA observed at [4]: Nothing in the Act, and nothing in s 45 in particular, provides that those mechanisms cease to be operative once court proceedings are commenced. There is no reason why the provisions of pt 4 of the Act cannot be read and applied in conjunction with the rules found in the UCPR. Indeed it could be said that the provisions of the Act and the UCPR are complementary. The fact that an appellant-defendant after proceedings had been commenced in a court could obtain the information in question from the claimant-plaintiff either by relying on the provisions of the Act or the rules does not create a problem which requires the court to conclude that the legislative intention must have been that only one of those two available procedures was intended to be operative at that stage.

46. Angus v Cornelius was not concerned with the disclosure of medical reports and it is not apparent that there was an argument in that case about any potential interference between a party’s right to legal professional privilege and the obligation to disclose medical reports or other documents. The basis for the contextual implication which Jerrard JA drew in Angus v Cornelius is not present in the Wrongs Act. Section 45(3) of the Motor Accident Insurance Act 1994 (Qld) required a claimant to give notice of any change of circumstances relevant to the extent of the claimant’s disabilities or financial loss after notice of a claim was given but before the claim was resolved. There is no comparable provision in the Wrongs Act. Moreover, the relevant provisions of the Motor Accident Insurance Act, unlike those of the PIPA, were not preceded by a heading that purported to limit their scope to the “pre-court” period.

47. The primary judge appears to have interpreted “pre-court” to mean “pre-hearing”. The respondent submitted that “pre-court” did not necessarily mean pre-litigation; it could equally mean “pre-hearing”. While that interpretation is theoretically open, I reject the submission. It seems tolerably clear that the purpose of ch 5 is to promote the resolution of disputes without recourse to the courts. That is apparent from a contextual analysis. The obligations imposed by ch 5 were correctly described by Refshauge J as “pre-action protocols”, “designed to encourage resolution of such disputes over claims for damages without the expense and delay inherent in litigation”: Re an application under s 73 of the Civil Laws (Wrongs) Act 2002 3 ACTLR 239 at [1]. In my opinion, “pre-court” means pre-action, not pre-hearing.

48. Although the primary judge referred to this judgment, he mischaracterised the decision. He said (at [19]) that Refshauge J at [35] considered that the duty of disclosure in s 68 was “an ongoing obligation … one that did not terminate with the commencement of proceedings”. But Refshauge J did not say this. In fact, he said the opposite, albeit without the benefit of full argument: Section 68 of the Wrongs Act clearly does not apply once proceedings have been instituted.

49. The Explanatory Statement to the Civil Law (Wrongs) Amendment Bill 2003 (ACT), which inserted ch 5 into the Act, indicates that the requirement for early notification to defendants of a client’s instruction to proceed with a claim was modelled on the Personal Injuries Proceedings Act 2002 (Qld) (“PIPA”). Indeed, a comparison of ch 5 of the Wrongs Act with the PIPA leads irresistibly to the conclusion that the debt to Queensland was much greater. Of the comparable provisions of that legislation Keane JA (with whom MacKenzie J agreed and Jerrard JA generally agreed) noted in Watkins v State of Queensland [2008] 1 Qd R 564 (at [67]): The purpose of div 1 to div 4 of pt 1 of ch 2 of the PIPA is to ensure that sound claims are admitted and unsound claims are abandoned; in this way, unnecessary litigation of those claims is to be avoided. … The evident purpose of these provisions of the PIPA inevitably inform the actions of those who act in conformity with their requirements. That purpose is to ensure that good claims are paid and bad claims are abandoned before proceedings are commenced in court; that is to say, the “dominant” purpose is that there should not be litigation of the claim at all if that is reasonably possible. (Emphasis added.)

50. The same is obviously true of ch 5 of the Wrongs Act. The obligations in ss 64 and 68 are plainly intended to operate before any proceedings are instituted. Of course, that does not necessarily mean that there is not also an ancillary purpose of ensuring that if claims cannot be settled before any proceedings are begun, they should be settled as soon as possible thereafter, and that the disclosure provisions are designed in part to bring that about.

51. The respondent drew attention to the reference in the outline at the beginning of the Explanatory Statement to “additional pre-trial procedures to assist settlement of cases before they get to court”. He contended that this reference to “pre-trial” suggested that the scope of pt 5.3 does extend up to trial but I do not think that anything can be made of this. The later reference to the provision for “early investigation of claims while evidence is still fresh” allowing “appropriate cases to be managed outside the court system …” is more to the point. The respondent accepted that the procedures in ch 5 are intended to promote settlement without litigation where possible.

52. The primary judge noted at [18] that “court” is defined in s 49 of the Wrongs Act to include “the court hearing the proceeding”. His Honour noted that this definition is not determinative but it “does not indicate a cut-off point at the commencement of proceedings”. That may be so but, as the appellant submitted, the s 49 definition distinguishes between a “proceeding” and a “claim” and between a “proceeding” which “has begun” and one which has not. The definition reads: court, in relation to a claim, means –– (a) if a proceeding based on a claim has been begun –– the court hearing the proceeding; or (b) if no proceeding based on the claim has been begun –– a court with jurisdiction to hear the claim.

53. In my respectful opinion the definition casts no light on the meaning of “court” in the heading. The references to a paragraph (a) court that appear in the body of ch 5 can readily be taken to relate to the enforcement of disclosure obligations that arise before suit or to excuse non-compliance with such obligations.

54. In my view the heading to ch 5 evinces an intention that the disclosure obligations arise before legal proceedings are instituted. Still, as I have already indicated, that does not necessarily indicate an intention that it arises only at that time. Cf. Berenguel v Minister for Immigration and Citizenship (2010) 264 ALR 417; [2010] HCA 8 at [26]. Bennion writes that a heading is of “very limited use in interpretation because of its necessarily brief and inaccurate nature”: F Bennion Statutory Interpretation (5th ed, 2008), p 746. Headings can be inserted “for the purpose of convenience of reference, and not intended to control the interpretation of the clauses which follow”: Union Steamship Co. of New Zealand v MelbourneHarbour Trust Commissioners (1884) 9 App. Cas. 365 at 369.

55. Thus, although a heading can provide context and may assist in understanding the scope of a provision, as Allsop J explained in Toben v Jones (2003) 129 FCR 515 at [137] – [138]: a heading will generally not control words of provisions that are clear and unambiguous: Silk Bros Pty Ltd v State Electricity Commission (Vic) (1943) 67 CLR 1 at 16; Hornsby Building Information Centre Pty Ltd v Sydney Building Information Centre Ltd (1978) 140 CLR 216 at 225–6, 234; Parkdale Custom Built Furniture Pty Ltd v Puxu Pty Ltd (1982) 149 CLR 191 at 202; and Concrete Constructions (NSW) Pty Ltd v Nelson (1990) 169 CLR 594 at 601–2. In this context, the function of the heading as a brief guide to the provisions within the part should be borne in mind: Oyston v Blaker [1996] 2 All ER 106 at 114; and Bennion Statutory Interpretation (3rd ed, 1997), p 574, s 255.

56. There are some contextual reasons to suggest that the disclosure obligations in s 68 might not be confined to the time before which proceedings are instituted. Section 68(2), for example, requires that copies of documents referred to in subs (1)(a) (which include medical reports) be provided no later than 7 days after they come into the respondent’s possession. It is, of course, possible to read the subsection as applying only to documents that come into a respondent’s possession before the commencement of proceedings. Yet what if a doctor examined the applicant before proceedings were commenced but forgot to send the report and the respondent did not receive it until after process had been filed? It seems unlikely that Parliament would have intended that the report not be disclosed in these circumstances. Further, s 79(5) provides that ch 5 does not apply in cases where a proceeding is begun by leave despite noncompliance with the chapter and the proceeding is not stayed. It is arguable that the subsection would be unnecessary if s 68 only had the limited operation for which the appellant contends.

57. On the other hand, there is the prohibition contained in s 75 against a party using a document that must be disclosed but which has not been disclosed “in a later court proceeding based on the claim, or the deciding of the claim, unless the court orders otherwise”. It seems implicit in this provision that the obligations in ss 64 and 68 apply only in respect of documents that come into the parties’ possession before a proceeding is launched. Section 79(5) may have been inserted simply for abundant caution. The premise of s 79, which gives the court, on the application of a claimant, the power to grant leave to begin a proceeding in the court for damages despite noncompliance with ch 5, is that the obligations imposed in the chapter are intended to apply before rather than during litigation.

58. Moreover, the Legislation Act does not appear to limit the assistance that may be gained from a heading to cases of ambiguity.

59. The Chief Justice considered that the appellant’s construction “would allow an argument that if a report, otherwise discloseable, was not by [the time a proceeding was begun] disclosed the obligation so to do would terminate on the commencement of the proceedings”. I respectfully disagree. The obligations to disclose documents imposed on both parties by ch 5 are directed to documents that come into the relevant party’s possession before an application is filed in the court. That obligation is not removed by the institution of proceedings. That is clear from subs (2) of both s 64 and s 68.

60. As I have said, the purpose of ch 5 is to promote the settlement of claims without litigation. To that end Parliament established a set of protocols for the exchange of information and means of enforcing compliance with them. In my view, these protocols were not intended to apply to parties during litigation. Different protocols operate at that stage. This conclusion is supported by reference to the state of the law when the relevant provisions were introduced. At the time ch 5 was inserted into the Wrongs Act, there were other provisions dealing with the settlement of litigation and facilitating the exchange of documents during litigation.

61. In motor vehicle personal injury claims O 2 r 12 of the Supreme Court Rules 1937 (ACT) required an originating application which included a claim for damages to attach a statement providing information about the time, date, place and circumstances of the use of the vehicle; precise particulars of negligence; the nature and extent of the injuries and disabilities resulting from the use of the vehicle “sufficient (where possible) to enable the defendant to nominate the type of expert required to examine the plaintiff”; the name of each health professional who treated the plaintiff for such injuries and for any condition exacerbated by the injury or disability; and the nature of any claim for economic loss. Order 36A imposed an obligation on plaintiffs to file and serve on all other parties in proceedings for damages for personal injuries a statement of particulars, which set out particulars of the injuries and disabilities, detailed the out-of-pocket-expenses and particulars bearing upon any claim for economic loss. It also required a plaintiff to serve copies of all available documents in support of a claim for special damages and economic loss. Those documents included hospital, medical or like accounts and income records. Order 34 gave parties the right to administer interrogatories and to apply to the court for an order for discovery. As a rule, in all cases in which a claim was made for damages for personal injuries or the death of a person O 39 r 46 required all parties to serve expert and hospital reports well before trial. Similar provisions now appear in the Court Procedure Rules 2006 (ACT). Chapter 15 of the Wrongs Act set up a scheme to enable the court to refer matters for mediation or early neutral evaluation – with or without the parties’ consent.

62. It follows that the appellant was not bound by s 68 of the Wrongs Act to disclose the second report of Dr Coyle. The disclosure provisions contained in ch 5 of the Act apply to documents that come into the possession of the parties before litigation is begun. They do not continue to operate after that time. The parties do have obligations to exchange documents and information and to attempt to resolve their disputes after court proceedings are instituted, but the source of those obligations is not ch 5 of the Wrongs Act. This conclusion is sufficient to dispose of the appeal. Nonetheless I should deal with the appellant’s final argument, which was to the effect that the obligation to disclose the report did not apply because it was protected by legal professional privilege (or client legal privilege as it is called in the Wrongs Act). For the following reasons I reject the argument.

63. Legal professional privilege is a fundamental common law right. It is presumed that a statute is not intended to alter or abolish such a right in the absence of express words or necessary implication (Baker v Campbell (1983) 153 CLR 52 at 96‑7, 116‑118, 123; Coco v R (1994) 179 CLR 427 at 436–438). Kiefel J recently observed in X7 v Australian Crime Commission (2013) 87 ALJR 858; [2013] HCA 29 (“X7”) at [158]: The requirement of the principle of legality is that a statutory intention to abrogate or restrict a fundamental freedom or principle or to depart from the general system of law must be expressed with irresistible clearness. That is not a low standard. It will usually require that it be manifest from the statute in question that the legislature has directed its attention to the question whether to so abrogate or restrict and has determined to do so. (Footnotes omitted.)

64. These principles are reflected in the Legislation Act, specifically s 171 (read with s 6). Section 171 provides (notes omitted): 171 Client legal privilege (1) An Act or statutory instrument must be interpreted to preserve the common law privilege in relation to client legal privilege (also known as legal professional privilege). (2) However, this section does not affect the operation of the Evidence Act 2011. (3) This section is a determinative provision.

65. The effect of s 6(2) is that a determinative provision must be applied to an Act or statutory instrument in accordance with the terms of the provision unless it is displaced “expressly or by a manifest contrary intention”.

66. Certainly, the presumption (in favour of protecting common law rights) is one way to discover Parliament’s true intention: Corporate Affairs Commission (NSW) v Yuill (1991) 172 CLR 319 per Brennan J at 322.

67. The difficulty for the appellant, however, is that it is manifest from the terms of s 72 that Parliament has directed its attention to the question and has determined to restrict the operation of the privilege. Put another way, to the extent provided in s 72, s 171 of the Legislation Act has been displaced by manifest contrary intention. While s 72 exempts from disclosure documents or information protected by the privilege, it expressly requires the disclosure, relevantly, of medical reports, though permitting the concealment of statements of opinion in those reports. In State of Queensland v Allen [2012] 2 Qd R 148 at [21] Fraser JA said that in s 30 of the PIPA (sub-ss (1) and (2) of which are identical in substance to s 72 of the Wrongs Act) the parliament had expressed its intention “with irresistible clearness” that “privileged communications which are “investigative reports”, “medical reports”, and “reports relevant to the claimant’s rehabilitation” must be disclosed, subject only to the omission of statements of opinion”. In these circumstances, his Honour said, there was no room for the application of the presumption.

68. The appellant argued, in effect, that his Honour was wrong to come to this conclusion. He submitted that no reasons were given for the conclusion and, more importantly, the reasons that followed did give room for the application of the presumption.

69. It is not correct to say that Fraser JA gave no reasons for his conclusion. The phrase “with irresistible clearness” (also used by Kiefel J in X7 to which I have referred) was taken from a statement by the plurality in Saeed v Minister for Immigration and Citizenship (2010) 241 CLR 252 at [15] which Fraser JA extracted at [19] of his reasons. That was a statement, in turn taken from Potter v Minahan (1908) 7 CLR 277 at 304, of the presumption that it is “highly improbable that Parliament would overthrow fundamental principles or depart from the general system of law, without expressing its intention with irresistible clearness”.

70. Nor is it fair to characterise Fraser JA’s later reasons as providing room for the operation of the presumption. That case was concerned with the meaning of “investigative report”. His Honour said (at [27]) that a statement by a witness to an incident alleged to have caused personal injury to a claimant or a solicitor’s file note recording that person’s recollection of the circumstances of the incident and the person’s opinion about it for use in anticipated litigation is not, “in ordinary parlance” an “investigative report”. He said that acceptance of the contrary proposition would result in widespread abrogation by s 30(2) of the privilege in witness statements taken by solicitors for use in existing or anticipated litigation or for the purpose of confidential legal advice. His Honour concluded that there was no indication in s 30 that such a result was intended. These later reasons provide no room for the operation of the presumption with respect to medical reports.

71. For the reasons I have given, I respectfully agree with the position taken by Fraser JA. Nevertheless, as I have already said, having regard to the view I take of the scope of the duties in ss 64 and 68, I would allow the appeal.

72. Ordinarily this would mean that the respondent should pay the appellant’s costs. In this case, however, Refshauge J ordered that as a condition of leave the applicant (now the appellant) bear the respondent’s costs of the appeal and that the costs of the application be costs in the appeal. Consequently, despite his success the appellant must pay the respondent’s costs of the appeal and the leave application. I would make orders to this effect.

IN THE SUPREME COURT OF THE )

) No. ACTCA 57 – 2012

AUSTRALIAN CAPITAL TERRITORY ) No. SC 246 of 2010

)

COURT OF APPEAL )

ON APPEAL FROM A SINGLE JUDGE OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

BETWEEN: NICHOLAS MORRIS CLEARY

Appellant

AND: DOMENICO RINAUDO

Respondent

REASONS FOR JUDGMENT

Judge: Nield AJ

Date: 9 August 2013

Place: Canberra

73. I agree with the reasons for judgment of her Honour Katzmann J and the orders she proposes.

I certify that the preceding seventy three (73) numbered paragraphs are a true copy of the Reasons for Judgment herein of their Honours, Justice Burns, Justice Katzmann and Acting Justice Nield.

Associate:

Date: 9 August 2013

Counsel for the Appellant: Mr J E Sexton SC

Solicitor for the Appellant: Sparke Helmore Lawyers

Counsel for the Respondent: Mr G A Stretton SC with Mr D Stretton

Solicitor for the Respondent: Stacks/Compensation

Date of Hearing: 29 April 2013

Date of Judgment: 9 August 2013

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