Collins & Anor v Cockerill [1998] QCA 76

" ... in the event of non-compliance with the above direction no evidence be led at trial without leave from the trial Judge of any expert witness the substance of whose evidence has not been made available to the other party as directed."

The appellants were given leave to appeal on 16 June 1997.

The parties agreed that the only possible source of the District Court Judge's power to give the directions appealed from is that contained in r. 101 of the District Court Rules.[2] Rule 101 provides:

"101. In any proceedings, the Court or a Judge may at any time ... give such directions as the Court or Judge thinks proper."

It was also common ground that the only power to make r. 101 was sub-s. 101[3] of the District Courts Act 1967. At the time when the directions appealed from were given, sub-s. 101(1) authorised "... all such Rules of Court as may be deemed necessary or convenient for regulating the procedure and practice of District Courts and for the purpose of giving full effect to this Act ...".

The validity of r. 101 depends upon its meaning and effect.[4] Despite submissions to the contrary, two matters seem to me plain:

1. Read literally and in isolation from other rules, r. 101 authorised the directions under appeal.

2. If valid, those directions materially restricted the appellants' legal professional privilege in their engineer's report.

It also seems to me necessary to elaborate on only the latter of these propositions, and then only briefly. Immediately prior to the directions under appeal, the appellants could maintain the secrecy of the contents of their engineer's report without a restriction, or risk of restriction, on their conduct of their defence at trial. The directions at least indirectly imposed an obligation on them to waive that secrecy by otherwise subjecting the conduct of their defence to a restriction unless the trial judge later lifted that restriction. In doing so, the directions derogated from the appellants' legal professional privilege with respect to the engineer's report.

The prevailing theory with respect to the proper performance of the judicial function in modern society encourages active case management to reduce issues, avoid surprise and embarrassment, minimise cost and delay, and provide expeditious and efficient justice. However, the adversarial system is not wholly without advantages,[5] and public or private interests will not always necessarily be best served by full disclosure of all evidence, or all evidence in a particular category, prior to trial. More particularly, justice will not necessarily be served by compelling a waiver of all or part of a litigant's legal professional privilege with respect to evidence, or possible evidence, pre-trial. The respondent submitted that legal professional privilege does not exist to confer or preserve tactical advantages at a trial.[6] Irrespective of whether that is an accurate statement with respect to a purpose of the privilege, advantages with respect to the conduct of trial are undoubtedly one of the benefits which routinely result from its existence.

The important public interest served by legal professional privilege has been consistently affirmed by the High Court.[7] At least since Baker v. Campbell,[8] generally expressed statutory powers which are literally wide enough to deny or derogate from legal professional privilege have been construed so as to leave the privilege intact. Legislation which would adversely affect legal professional privilege if given its literal effect is read down so as to avoid that result unless the language used clearly reveals an intention to do so.[9] Obviously, a similar approach must be adopted to the construction of subordinate legislation.[10]

It follows, in my opinion, that, on its proper construction, r. 101 did not authorise the directions to which the appeal relates. Some support for this view is to be found in other rules; e.g. r. 149A provides for the pre-trial supply of some expert's reports, which is an express exception to the general protection of privileged documents in Part 17.

In summary, r. 101 provided no power to give the directions appealed from. I would allow the appeal and set aside the directions. The respondent must pay the costs of and incidental to this appeal, the application for leave to appeal and the District Court application.

I agree with what Fitzgerald P. has written and with his Honour's conclusions in relation to this appeal. Like his Honour, I propose to consider only the relevant rule of court in the District Court on the assumption (without considering its correctness or otherwise) adopted by the parties to the appeal that O.35, r.5(2) of the Supreme Court has no application to this action in that Court.

On that assumption, the question is essentially one of interpretation involving the question whether the provisions of District Court Rule 101 are to be construed as authorising a judge to give directions with respect to the conduct of proceedings having the consequence or effect of overriding the right of a party to the action to maintain legal professional privilege in respect of the communication by an expert in a report obtained for the sole purpose of that litigation. In determining such a question, it is obvious that much depends on the character, function and status of the relevant privilege or immunity considered in the context of the nature, history and terms of the statutory provision said to override it. For example, in Mortimer v. Brown [1970] HCA 4; (1970) 122 C.L.R. 493, the provisions of s.250 of the Companies Act 1961 regulating public examination of company officers were held to impliedly override the common law privilege of refusing to answer incriminating questions. In that instance, the object of the inquiry and the general discretion reposed in the judge to allow or disallow such questions were regarded as decisive factors. See also Sorby v. The Commonwealth [1983] HCA 10; (1983) 152 C.L.R. 281, where, however, Mason, Wilson, and Dawson JJ. said (at 309) that the privilege against self-incrimination was "deeply ingrained in the common law", and that:

"The principle is that a statute will not be construed to take away a common law right, including the privilege against self-incrimination, unless a legislative intent to do so clearly emerges, whether by express words or necessary implication."

Here the right in question is legal professional privilege, which has been held to share the benefit of similar interpretative presumption: see Baker v. Campbell [1983] HCA 39; (1983) 153 C.L.R. 52. Its basic justification has been identified as the public interest in facilitating the application of the rule of law: Carter v. Northmore Hale Davy & Leake (1995) 183 C.L.R. 121, in which character it has been held to enjoy primacy even over "a public interest in having available all evidence relevant to the issues in litigation", (ibid, at 128) as, for example in that case, where a person was facing trial on a charge of a criminal offence.

The relevant statutory provisions in question in the present case evince no intention to abrogate the claim to legal professional privilege. Rule 101 of the District Court Rules is expressed in terms that are quite general and non-specific, and do so without addressing the matter now being considered or anything resembling it. Even assuming that their purpose, or one aspect of it, is to facilitate active case management, they provide no indication that the power conferred is to be exercisable in derogation of the common law right of a litigant to decide whether or not to relinquish the privilege, or to select the moment at which to do so; in the ordinary course of events, the earliest moment at which that decision is called for is at the trial if and when that party elects to call the evidence and, for that purpose, opens the case which it is proposed to present. On the face of it, r.101 neither expressly or impliedly interferes with that right or choice. In New South Wales, a similar approach was recently adopted by Bainton J. in Abigroup Ltd. v. Atkins (1997) 42 N.S.W.L.R. 623, where, after reviewing the authorities, his Honour said (at 639):

"This particular privilege is longstanding and is a necessary adjunct to the proper administration of justice in that it permits communications with a legal adviser by or for his client to remain confidential and therefore to be frank and complete, without having them exposed to the public gaze unless and until the client himself does so by giving them or instructing that they be given in evidence and thus inevitably exposed to public gaze. In my judgment it would not be right to hold that this privilege has been abandoned or modified by inference."

What has been said here seems almost invariably to prompt comparisons with other legal systems which are seen by some as being superior in adopting an "inquisitorial", as distinct from "adversarial", approach to the ascertainment of facts in civil litigation. It is, I think, worth pointing out that under most continental legal systems, unlike our own, there is no general pretrial duty of disclosure. German law, said Professor Dr. Gottwald in one of the papers delivered at the International Symposium on Civil Justice held in Tokyo in 1992 (which were collected and later published under that title in 1993), at 152:

"does not know any formal pretrial discovery between the parties, or respectively, their counsel. Likewise there is no general procedural duty of a party to inform his opponent about all circumstances relevant to a particular cause of action. Proposals for a general right to information influenced by the common law were rejected in 1990 by the Federal Supreme Court ... The Federal Supreme Court still adheres to the principle that a party is not obliged to provide his opponent with material for a successful litigation which the opponent cannot provide for himself."

Other participants at the Symposium indorsed the same approach on behalf of their own particular national legal systems; for example, in the case of Brazil, Professor Moreira said (at 98) that a party "does not have the duty to inform the opponent of any documents which may be relevant for the trial of the action and are or have been in his/its possession". The same state of affairs prevails under the Italian system (at 265); and also, at least as late as 1992, in Japan. Under comparatively recent civil procedure reforms in France, something resembling the system of discovery of documents under the Anglo-American system is now required. It extends to witness statements that have been obtained; but not to documents for which there exists a legitimate excuse for non-production, which include those covered by professional privilege: see West et al, The French Legal System: An Introduction, at 294.

What emerges from all this is that, far from representing the norm, statutory provisions like that in O.35, r.5(2) of the Rules of the Supreme Court (Qld.), providing that a document consisting of a statement or report of an expert is not privileged from disclosure, appear to be exceptional. It may be that that rule represents the direction in which modern civil procedure is tending; but, without some clear indication to that effect, a procedural provision in the very general form of Rule 101 of the District Court Rules should not, without more, be considered as operating to displace the common law privilege attaching to a communication, such as the engineer's report the subject of contention in this instance, which is subject of an acknowledged claim to legal professional privilege by the other party to the litigation.

I have had the advantage of reading the reasons for judgment of the President and I am content to rely upon his Honour's summary of the facts and his observations on the manner in which the appeal was argued.

The learned District Court Judge who made the order under appeal referred to R.S.C. O.35 r. 5(2) and observed:-

"In other words there was a specific reference to that category of report which obviously was not covered by the equivalent of the said r.182 or r. 149A of the District Court Rules relating to the discovery and provision of medical reports and matters relating to quantum. Order 35 seemed to be wider and to cover non-personal injury matters. Rule 4 is not applicable I find as the District Court has a specific rule albeit different from O.35."

Upon appeal the appellant supported this view and the respondent did not attempt to challenge it. The appeal was conducted without reference to any authority which might be thought to be inconsistent with this decision as to the effect of R.4 of the District Court Rules.

While I am unpersuaded that in the absence of argument on the matter this Court ought of its own motion embark upon an examination of authorities and arguments to determine whether the approach of the learned District Court Judge is correct nevertheless I believe that this Court's decision ought not be regarded as authority for the correctness of that approach. It is for this reason that I think it appropriate to make some observations and reference to authority and arguments not advanced upon appeal in case it might be desired by some party in the future to contend that R.4 of the District Court Rules does make applicable in the District Court R.S.C. O.35 r.5(2).

"4(1) Where the Rules of the Supreme Court provide for a remedy, procedure, or power which may be granted, applied, or exercised whether before, at, or after judgment in the course of proceedings of a type which may be heard and determined in a District Court and such remedy, procedure, or power is not provided for in these rules, the Rules of the Supreme Court relating to such remedy, procedure, or power shall, with all the necessary adaptation, apply to such proceedings in a District Court.

(2) In any case when the manner or form of procedure is not prescribed

or is insufficiently prescribed by these rules or by the practice of the Court, any party may apply to a Judge for directions and any step taken or thing done in accordance with the directions given by the Judge shall be deemed to be regular and sufficient."

In my view it does not necessarily follow that because the District Court has specific rules of procedure which do not mirror R.S.C. O.35 r.5(2), that rule inevitably has no application. This was one of the very points argued unsuccessfully in Jiminez v Jayform Contracting Pty. Ltd. [1992] QCA 59; (1993) 1 Qd.R. 610.

In that case an application was made under R.23 of the District Court Rules (misjoinder or non-joinder; striking out and adding parties) that one party be struck out and another party be joined in lieu. The two parties involved were associated companies. The application was refused before the District Court and it was held in the Court of Appeal that the application was not in the form of an application simply to correct the name of the party but that in fact the plaintiff had made a mistake in selecting one of two associated companies as the person against whom his cause of action was alleged to exist. In the course of the majority judgment it was observed with respect to the application made by the plaintiff at p. 612:-

"The application was made pursuant to R.23 of the District Court Rules 1968 which is in the same terms as O.3 r.11 of the Rules of the Supreme Court --"

"In this Court the applicant sought in the alternative to his argument under R.23 of the District Court Rules to argue that this was a case in which if the action were in the Supreme Court O.32 r. 1(3) would apply. Order 32 is the rule providing for amendment of the writ of summons or any pleading or other proceedings. Sub-rules 1, 2 and 3 of that rule provide:-

3 An amendment to correct the name of a party may be allowed under

paragraph (2) notwithstanding that it is alleged that the effect of the

amendment will be to substitute a new party if the court or judge is

satisfied that the mistake sought to be corrected was a genuine

mistake and was not misleading or such as to cause any reasonable

doubt as to the identity of the person intending to sue or as the case

"The applicant argued that his application before the District Court Judge was one merely to correct the name of a party and that notwithstanding that there is no rule in the above terms in the District Court Rules, R.4 of those Rules would apply the above rules.

`Where the Rules of the Supreme Court provide for a remedy --'

It was argued faintly by the respondent that the presence of R.23 and of the power to amend in R.108 indicated that such a procedure was provided by the District Court Rules but there is no substance in that argument. In our view O.32 r.1 applies in the District Court.

I should have thought it arguable that R.S.C. O.35 r. 5(2) does provide a procedure applicable in proceedings in this Court of the type pending in the District Court in which this application was made and that such procedure is not provided in the District Court Rules. If that be the case I would have thought it at least arguable that the Rules of the Supreme Court relating to that procedure should with necessary adaptations apply to the proceedings in the District Court. The critical question is whether R.S.C. O.35 r. 5(2) should be characterized as "a procedural rule" within R.4(1) of the District Court Rules.

At least in my view such an approach would be consistent with and conform with that taken by this Court in Jiminez.

In Grosvenor Hill (Qld) Pty. Ltd. (formerly known as Hillier Parker (Qld) Pty. Ltd.) and

Brian Moffat Waghorn (appellants) v. Interchase Corporation Ltd. (in Liquidation) and Richard Ellis (Qld) Holdings Pty. Ltd. (respondents) (unreported judgment delivered 19 December 1997,) this Court considered a challenge to the validity of R.S.C. O.35 r. 5(2) which to use the words of Thomas J.:-

"Provides a limited exception in the application of the usual rules applicable to privileged documents. The exception was limited to `a statement or report of an expert'."

It is unnecessary to consider the interesting historical analysis of legislation and rule-making powers etc. which led Thomas J. to the conclusion that O.35 r.5(2) is valid or the reasons which led Pincus JA. to the same conclusion.

Both Judges considered authorities canvassed briefly upon this appeal, the principle ones being Baker v. Campbell [1983] HCA 39; (1983) 153 C.L.R. 52; Carter v. The Managing Partner Northmoor Hale Davey & Leake (1995) 183 C.L.R. 121 and Commissioner Australian Federal Police v Propend Finance Pty. Ltd. (1997) 71 A.L.J.R. 327.

I proceed therefore upon the basis that R.S.C. O.35 r. 5(2) is certainly a valid rule which has had the effect of excepting from the general rule relating to privilege the documents specified in it which have been prepared and communicated to a solicitor for the purpose of litigation.

An interesting point not debated is whether a document prepared for the purpose of litigation which undoubtedly is not privileged from disclosure in this Court nevertheless retains its character of being a privileged document in the District Court (and Magistrates Court) at least while actions are pending in those Courts. If transferred to this Court presumably the privilege would then be lost.

The destruction of privilege achieved by R.S.C. O.35 r. 5(2) one might think would be based upon general considerations of fairness, speedy determination of issues involving expert opinion and the avoidance of trial by ambush. If those policy considerations justify the exception of such documents from the general rule relating to privilege in this Court, one would perhaps be more ready to apply Jiminez if possible and conclude that R.S.C. O.35 r.5(2) should be characterized as a procedural rule designed to further the speedy and proper determination of disputes in this Court which has not been expressly incorporated in the Rules of the District Court.

In my view this is a matter of importance, not the least so, because R.6 of the Magistrates Court Rules provides that if a party wishes to take a step in a proceedings in that Court:-

"-- and the manner or form of procedure is not prescribed by these Rules then subject to the directions then -- a party may adopt and apply the Rules of Court and Rules of Practice in the District Court."

As it was pointed out in Grosvenor Hill (Qld) Pty. Ltd (supra) the opinion of an expert is not privileged, whether or not a report of that opinion provided to the solicitor who retains the expert to advise on matters solely for the purpose of litigation be privileged.

As it was also pointed out in Grosvenor Hill should the plaintiff seek to call as her witness the expert retained by the defendant to establish that he has an opinion relevant to matters in issue between the parties it would not be possible to object to that evidence (or the facts upon which it is based) on the ground of privilege. Undoubtedly in the absence of R.S.C.O. 35 r.5(2) objection could be taken to making available the expert report forwarded to the defendant's solicitor for the purpose only of litigation. However, the confidentiality protected by privilege would then only relate to that document. The fact that that privileged document recorded the opinion formed by an expert which necessarily would require disclosure of the facts he assumed to exist to support that opinion would not make either the opinion or the facts upon which it was based (as distinct from the content of witness statements etc.) privileged and therefore inadmissible. This whole matter was considered at length by both Pincus JA. and Thomas J. in Grosvenor Hill and it would be unprofitable for me to repeat the analysis there made by those Judges.

Authorities which were analyzed in that case relating to privilege with respect to expert opinion and the assumed facts upon which it is based include:-

Harmony Shipping Co. S.A. v. David [1979] 3 All E.R. 177;

R v. King [1983] 1 All E.R. 929;

Consideration was also given to these matters in the various approaches adopted in the Court of Criminal Appeal in New South Wales in Ward (1981) 3 A Crim. R. 171.

The parties to this appeal have not attempted to canvas the matters to which I have referred; both proceeded on the basis that the only relevant rule to be considered is District Court Rule 101. Having regard to the way in which the appeal was conducted and the importance of the benefit of careful argument when determining whether O.35 r.5(2) does have effect in the District Court pursuant to R.4(1) and perhaps also by reason of R. 6 of the Magistrates Court Rules in the Magistrates Court, I agree for the reasons given by the President that the appeal should be allowed. I also agree with the orders he proposes.

[1] Contrast R.S.C. O. 35 r. 5(2), which was discussed in Grosvenor Hill (Queensland) Pty Ltd v. Waghorn (C.A. 9424 of 1996, unreported, 19 December 1997). See also Supreme Court Practice Direction 15 of 1996, "Supervised Case List", Annexure A para. 14, Annexure B "Short Form Orders" 6 and 7. This appeal was conducted by both parties on the footing that, notwithstanding r. 4 of the District Court Rules, no Supreme Court Rule is relevant. I propose to assume that that is so for the purpose of this decision, which involves an appeal from an interlocutory decision on the eve of the trial, which has already been delayed for almost a year.

[2] Both parties' arguments accepted that neither r. 149A, Part 17, nor any other provision in the District Court Rules (except r. 101) authorised the directions under appeal.

[3] Section 101 has been amended, and is now s. 126.

[4] Cf. Taylor v. Guttilla (1992) 59 S.A.S.R. 361.

[5] Cf. Queensland v. J.L. Holdings Pty Ltd [1997] HCA 1; (1997) 189 C.L.R. 146.

[6] Barnett v. Gold Coast City Council [1989] 2 Qd.R. 301, 302.

[7] See, for example, Carter v. The Managing Partner, Northmore, Hale, Davey & Leake (1995) 183 C.L.R. 121 and Commissioner of Australian Federal Police v. Propend Finance Pty Limited (1997) 188 C.L.R. 501.

[8] [1983] HCA 39; (1983) 153 C.L.R. 52

[9] Cf. Abigroup Ltd v. Akins (1997) 42 N.S.W.L.R. 623, 639.

[10] As defined in the Statutory Instruments Act 1992, sub-s. 9(a), including "statutory rules" (as defined in sub-s. 8(b).