NSW Police Force has objected to a summons to produce documents on the ground of client legal privilege. The summons, issued by the Applicant, CNC, requested her former employer, the NSW Police Force, to produce the following documents:
All "referral Documents and notes" regarding the Independent Medical Examination by Dr Bruce Westmore that I attended on 22 October 2015.
Any documents/notes written between Norton Rose Fulbright and the NSW Police Force leading up to the medical examination of myself and after the medical examination.
NSW Police Force has produced the documents to the Tribunal for the purpose of assessing its claim for client legal privilege: Evidence Act 1995 (NSW), s 133. In my view NSW Police Force is entitled to the benefit of legal professional privilege (client legal privilege) in relation to each of the documents the subject of the summons.
[2]
Background
CNC's substantive application is that NSW Police breached the Privacy and Personal Information Protection Act 1998 (NSW) and the Health Records and Information Privacy Act 2002 (NSW) by:
1. disclosing medical reports about her to their lawyers, Norton Rose Fulbright Australia, for the purpose of arranging the Independent Medical Examination; and
2. failing to provide CNC with copies of all the information provided to Dr Westmore or a copy of his report.
During the time of CNC's employment with NSW Police Force, an issue arose as to whether she was fit to return to work. In late 2015 NSW Police Force instructed their lawyers, Norton Rose Fulbright Australia, to provide them with employment law advice. In particular, the NSW Police Force asked their lawyers to prepare a letter of instructions to Dr Westmore to conduct an Independent Medical Examination of CNC and to provide them with a report on her fitness to return to work.
Workcover has published a guideline on Independent Medical Examinations and Reports: Government Gazette of the State of NSW, Number 30, Friday 23 March 2012. That guideline defines an Independent Medical Examination to mean:
… an impartial assessment based on the best available evidence that is requested by a worker, a worker's solicitor or employer/insurer and undertaken by an appropriately qualified and experienced medical practitioner (who is not in a treating relationship with the worker) for the purposes of providing information to assist with workers compensation injury and claims management.
The documents requested under the summons fall into five categories:
1. the first letter of instruction dated 20 October 2015 from Norton Rose Fulbright Australia (the lawyers) to Dr Westmore;
2. 53 documents including medical reports relating to CNC which were attached to the first letter of instruction and incorporated by reference;
3. a draft of the first letter of instruction;
4. the second letter of instruction dated 19 November 2015 from the lawyers to Dr Westmore seeking a supplementary report;
5. emails between the lawyers and NSW Police Force relating to the request for an Independent Medical Examination; and
6. memorandum from the lawyers to NSW Police Force dated 24 November 2015 headed "Instruction Confirmation".
NSW Police objected to the production of these documents on the ground of client legal privilege. There may be some overlap in the consideration of the application of client legal privilege and the issues in CNC's substantive application but I have not considered or determined the substantive application in these proceedings.
[3]
The law
The Tribunal has power to issue a summons at the request of a party: Civil and Administrative Tribunal Act 2013 (NSW) (NCAT Act), s 48(1)(a). . I have applied the Evidence Act provisions appreciating that the common law is also relevant: Mann v Carnell (1999) 201 CLR 1; Singtel Optus Pty Ltd v Weston (2011) 81 NSWLR 526 at [27]. Although the Tribunal is not bound by the rules of evidence, there are some rules that do apply, including legal advice and litigation privilege: NCAT Act, s 38(2). Section 67 of the NCAT Act provides that:
67 Privileged documents
(1) Nothing in this Act requires the disclosure of a document if the Tribunal or President is satisfied that evidence of the document could not be adduced in proceedings before a NSW court by reason of the operation of any of the following provisions of the Evidence Act 1995:
(a) section 9 (Application of common law and equity), but only to the extent that it preserves any privilege against the adducing of evidence,
(b) section 10 (Parliamentary privilege preserved),
(c) Part 3.10 (Privileges) of Chapter 3.
(2) In this section:
"disclosure" of a document includes the following:
(a) the provision of copies of the document,
(b) the granting of access to the document,
(c) the disclosure of the contents of the document.
"document" includes a part of a document.
"NSW court" has the same meaning as in the Evidence Act 1995.
Part 3.10 of Chapter 3 contains s 117 to s 134
Legal advice and litigation privilege are described in s 118 and s 119 of the Evidence Act;
118 Legal advice
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.
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.
The relevant definitions are set out in s 117 of the Evidence Act:
(1) In this Division:
"client" includes the following:
(a) a person or body who engages a lawyer to provide legal services or who employs a lawyer (including under a contract of service),
(b) an employee or agent of a client,
(c) an employer of a lawyer if the employer is:
(i) the Commonwealth or a State or Territory, or
(ii) a body established by a law of the Commonwealth or a State or Territory,
(d) if, under a law of a State or Territory relating to persons of unsound mind, a manager, committee or person (however described) is for the time being acting in respect of the person, estate or property of a client-a manager, committee or person so acting,
(e) if a client has died-a personal representative of the client,
(f) a successor to the rights and obligations of a client, being rights and obligations in respect of which a confidential communication was made.
"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.
"lawyer" means an Australian lawyer, a foreign lawyer, or an employee or agent of either of them.
"party" includes the following:
(a) an employee or agent of a party,
(b) if, under a law of a State or Territory relating to persons of unsound mind, a manager, committee or person (however described) is for the time being acting in respect of the person, estate or property of a party-a manager, committee or person so acting,
(c) if a party has died-a personal representative of the party,
(d) a successor to the rights and obligations of a party, being rights and obligations in respect of which a confidential communication was made.
(2) A reference in this Division to the commission of an act includes a reference to a failure to act.
Client legal privilege will be lost or waived in certain circumstances. Two potentially relevant circumstances for the purpose of these proceedings are described in s 122 and 126 of the Evidence Act. The relevant provisions are as follows:
122 Loss of client legal privilege: consent and related matters
(2) Subject to subsection (5), this Division does not prevent the adducing of evidence if the client or party concerned has acted in a way that is inconsistent with the client or party objecting to the adducing of the evidence because it would result in a disclosure of a kind referred to in section 118, 119 or 120.
(3) Without limiting subsection (2), a client or party is taken to have so acted if:
(a) the client or party knowingly and voluntarily disclosed the substance of the evidence to another person, or
(b) the substance of the evidence has been disclosed with the express or implied consent of the client or party.
(4) The reference in subsection (3) (a) to a knowing and voluntary disclosure does not include a reference to a disclosure by a person who was, at the time of the disclosure, an employee or agent of the client or party, or of a lawyer of the client or party, unless the employee or agent was authorised by the client, party or lawyer to make the disclosure.
126 Loss of client legal privilege: related communications and documents
If, because of the application of section 121, 122, 123, 124 or 125, this Division does not prevent the adducing of evidence of a communication or the contents of a document, those sections do not prevent the adducing of evidence of another communication or document if it is reasonably necessary to enable a proper understanding of the communication or document.
Section 131A of the Evidence Act extends the application of these provisions to a summons to produce documents or give evidence.
[4]
Scope of objection
In their letter to the Tribunal dated 23 November 2016, NSW Police Force identified legal advice privilege, not litigation privilege, as the type of privilege on which they relied. However, in written submissions, NSW Police Force referred to both s 118 and s 119 of the Evidence Act. NSW Police Force did not identify any existing or anticipated litigation for which the Independent Medical Examination was obtained. In those circumstances I have treated their objection as relying solely on legal advice privilege.
The Federal Court has summarised the relevant principles applicable to letters of instruction and expert reports when legal advice privilege in invoked: Australian Securities & Investments Commission v Southcorp Limited [2003] FCA 804 at [21], Lindgren J.
21 I will apply the following principles which I did not understand to be in dispute:
1. Ordinarily the confidential briefing or instructing by a prospective litigant's lawyers of an expert to provide a report of his or her opinion to be used in the anticipated litigation attracts client legal privilege: cf Wheeler v Le Marchant (1881) 17 ChD 675; Trade Practices Commission v Sterling [1979] FCA 33; (1979) 36 FLR 244 at 246; Interchase Corporation Ltd (in liq) v Grosvenor Hill (Queensland) Pty Ltd (No 1) [1999] 1 Qd R 141 ("Interchase") at 151 per Pincus JA, at 160 per Thomas J.
2. Copies of documents, whether the originals are privileged or not, where the copies were made for the purpose of forming part of confidential communications between the client's lawyers and the expert witness, ordinarily attract the privilege: Commissioner of Australian Federal Police v Propend Finance Pty Ltd (1997) 188 CLR 501 ("Propend"); Interchase, per Pincus JA; Spassked Pty Ltd v Commissioner of Taxation (No 4) [2002] FCA 491; (2002) 50 ATR 70 at [17].
3. Documents generated unilaterally by the expert witness, such as working notes, field notes, and the witness's own drafts of his or her report, do not attract privilege because they are not in the nature of, and would not expose, communications: cf Interchase at 161--162 per Thomas J.
4. Ordinarily disclosure of the expert's report for the purpose of reliance on it in the litigation will result in an implied waiver of the privilege in respect of the brief or instructions or documents referred to in (1) and (2) above, at least if the appropriate inference to be drawn is that they were used in a way that could be said to influence the content of the report, because, in these circumstances, it would be unfair for the client to rely on the report without disclosure of the brief, instructions or documents; cf Attorney-General (NT) v Maurice [1986] HCA 80; (1986) 161 CLR 475 at 481 per Gibbs CJ, 487--488 per Mason and Brennan JJ, 492-493 per Deane J, 497--498 per Dawson J; Goldberg v Ng [1995] HCA 39; (1995) 185 CLR 83 at 98 per Deane, Dawson and Gaudron JJ, 109 per Toohey J; Instant Colour Pty Ltd v Canon Australia Pty Ltd [1995] FCA 870; Australian Competition and Consumer Commission v Lux Pty Ltd [2003] FCA 89 ("ACCC v Lux") at [46].
5. Similarly, privilege cannot be maintained in respect of documents used by an expert to form an opinion or write a report, regardless of how the expert came by the documents; Interchase at 148--150 per Pincus JA, at 161 per Thomas J.
6. It may be difficult to establish at an early stage whether documents which were before an expert witness influenced the content of his or her report, in the absence of any reference to them in the report; cf Dingwall v Commonwealth of Australia [1992] FCA 627; (1992) 39 FCR 521; Tirango Nominees Pty Ltd v Dairy Vale Foods Ltd (No 2) (1998) 83 FCR 397 at 400; ACCC v Lux at [46].
These principles may be applied to the present case if the test in s 118 is substituted for the test in s 119. The confidential document must have been prepared for the dominant purpose of the lawyer providing legal advice to the client.
[5]
Consideration
I accept the evidence of Mr Crooks, a solicitor employed by NSW Police Force, that he facilitated the engagement of the lawyers to provide legal advice to the NSW Police Force about CNC's return to work. NSW Police Force is a "client" and Norton Rose Fulbright Australia is a "lawyer" as defined in s 117 of the Evidence Act. The client has objected to the production of the documents.
The first letter of instruction incorporated, by reference, the attached medical reports. I am satisfied that the letter and the attachments were prepared for the dominant purpose of the lawyer providing legal advice to NSW Police Force. The second letter of instruction falls into the same category. Each letter is headed "Private and Confidential." The lawyer and the client were under an express or implied obligation not to disclose their contents. Generally privilege will apply to confidential briefing and instructions by a lawyer for the dominant purpose of the client acquiring legal advice: Pratt Holdings Pty Ltd v Commissioner of Taxation (2004) 136 FCR 357. The same principle applies to draft letters of instruction. The emails and the Instruction Confirmation letter fall squarely within the definition of client legal privilege.
The remaining issue is whether NSW Police Force has waived privilege over any of the documents. There is no evidence to suggest that privileged has been waived in any of the categories of documents except the first and second letters of instruction, including the attachments to the first letter.
Affidavit evidence in the substantive proceedings from Ms Wilcox, A/Senior Injury Management Advisor with NSW Police Force, states her understanding is that copies of Dr Westmore's report dated 14 November 2015 and a supplementary report dated 23 November 2016 have been provided to CNC. That evidence is supported by an affidavit from Mr Crooks, solicitor with NSW Police Force in relation to the 14 November 2015 report. For the purpose of these proceedings, I accept the evidence of both those witnesses.
That NSW Police Force addressed the possibility that disclosure to CNC may have resulted in waiver under s 122(2) of the Evidence Act in relation to the first letter of instruction. I have also considered those questions in relation to the second letter of instruction.
[6]
First and second letters of instruction
Privilege may be lost by what has been referred to as "disclosure waiver": Stephen Odgers, Uniform Evidence Law, (11th ed Thomson Reuters) at 698. The question in this case is whether disclosure of Dr Westmore's expert reports to CNC has the effect of waiving privilege in other documents such as the letters of instruction, including the medical reports. Where something less than "the substance of the evidence" has been disclosed, privilege may still be lost: Evidence Act, s 122(2). The test was expressed by Derham AsJ in Matthews v SPI Electricity Pty Ltd [2013] VSC 33 as being whether the other documents "influenced or underpinned" the expert's report. The Supreme Court of New South Wales expressed the test as whether the letter of instruction "influenced the content of the report in such a way that the use or service of the report would be inconsistent with maintaining the privilege in those materials, such as, where it would be unfair for the party to rely on the report without disclosure of those materials": Sprayworx Pty Ltd v Homag Pty Ltd [2014] NSWSC 833 at [51]. Privilege will not be waived if "the relevant documents or communications have not influenced the content of the final report, or may have influenced it but in relation only to form or peripheral matters …": Shea v TruEnergy Services Pty Ltd (No 5) (2013) 303 ALR 230 at [60].
The first part of the letter of instructions to Dr Westmore outlines the background and history of CNC's injuries, workers compensation claims and medical history. The second part of the letter contains specific questions for Dr Westmore to address in his report. Dr Westmore does not repeat those questions in his report but provides answers which enable the questions to be gleaned. The letter does not seek to direct or influence Dr Westmore's views. NSW Police has not acted inconsistently with maintaining of its client legal privilege over this document which includes the medical reports by reference.
The second letter contained a proposal to implement several measures in relation to CNC including a medical treatment plan, return to work at a particular location and reporting requirements to a designated person. In his supplementary report, Dr Westmore summarised the "practical measures" NSW Police Force proposed to implement and provided an opinion on those measures as requested. I do not consider that the second letter of instruction influenced the substance of the report dated 23 November 2015. That letter sought Dr Westmore's opinion. It did not seek to direct or influence his views. NSW Police has not acted inconsistently with the maintaining of its client legal privilege over this document
[7]
Orders
The summons issued by CNC to NSW Police Force is set aside.
The confidential documents belonging to the NSW Police Force are to be returned to their solicitors.
[8]
I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales.
Registrar
[9]
Amendments
30 January 2017 - typographical error
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: 30 January 2017