Dean v More Than a Morsel Pty Ltd [2002] ACTSC 101

2. The notice of motion is addressed to "the Defendant and GIO Workers Compensation by their solicitors Hunt & Hunt".

3. The notice of motion was dated 5 August 2002. It does not appear to be supported by an affidavit.

4. It appears that a bundle or file of documents entitled Masters Copy Documents was filed by the plaintiff's solicitor on 22 July 2002. I am not aware of the authority of the registry to accept such bundles for filing. However, it appears to have been before the Master in the nature of an exhibit, it was before me on the appeal and it may be a useful source of copies of documents relevant to the appeal.

5. The notice to produce, specifying the documents which the plaintiff wanted produced was dated 25 July 2002 and was addressed to "Hunt & Hunt Lawyers" at an address in Civic. It was in the following terms, formal parts omitted:

"Take notice that the Plaintiff requires you to produce for his or her inspection the following documents referred to in the report of Dr George Hession, dated 7 November 2001:

1. All documents provided to Dr George Hession, including but not limited to:

a. Statement of Brian Henry Lizotte dated 20.12.1999;

b. Statement of Brian Henry Lizotte dated 06.07.2001;

c. Statement of Adele Jurgens date not specified;

d. Statement of Adele Jurgens date not specified;

e. Report of Matthew Treacy date not specified;

f. Report of Cameron Gray date not specified;

g. Report of Dr Robert Lewin dated 13.12.2000."

6. Although there was no reference in anything before the Master or before me to O 34B r 7(3), it appears that the application was made pursuant to that rule. I am not aware of the source of any power to make the orders sought except pursuant to that rule. I will return later to the provisions of O 34B. The hearing before the Master took place on 9 August 2002. The Master delivered ex tempore reasons. In those reasons the documents for which production was sought were described by the Master as "certain documents by way of witness statements ... before a Dr Hession, an expert who has reported in the defendant's case, and whose report on the evidence of Mr Satsia, a solicitor for the defendant was served on the plaintiff pursuant to the rules of court". Legal professional privilege was claimed in those documents by counsel who said that he appeared "for the defendant who is the respondent".

7. Counsel for the plaintiff did not contest that the documents attracted legal professional privilege but submitted that privilege had been waived by service of the report of Dr Hession, or more precisely a copy of it, in accordance with O 39 r 46.

8. The report of the doctor indicated that he had read certain other documents sent to him by the defendant's solicitor before writing his report.

9. The Master considered that, in accordance with the line of authorities which were referred to briefly, privilege was not lost by documents disclosed under compulsion and further that the copy of the report of Dr Hession had been served under compulsion of the rules. The Master acknowledged that "both counsel were frankly of the view that certain documents would have to be produced at the trial in order for there to be any sense made of the nature of the application" but considered that that factor was not sufficient for waiver of privilege. Thus the Master concluded that the documents referred to were not the subject of waiver of privilege.

10. The substantive proceedings were commenced by originating application dated 8 June 1999 in which the plaintiff claimed "damages for death or bodily injury in relation to an employer's negligence". In a statement accompanying, the plaintiff alleged that she was employed by the defendant as a chef and was injured when she fell when stepping onto a "makeshift stair" attached to a mobile kitchen. The injuries are alleged to be to the right arm and wrist and to the back and also shock.

11. In an amended defence, undated, but filed on 1 August 2002, the defendant admits employment and injury to the arm on the date alleged but denies negligence, alleges contributory negligence and asserts that the plaintiff's damages, if any, are to be assessed in accordance with the law of New South Wales, alternatively of Western Australia. The defendant also makes a counter-claim for breach of contract, alleging that the plaintiff was under a contractual duty to exercise reasonable care and not to consume alcohol whilst on duty or to become intoxicated "whilst on tour". There does not appear to be a reply or defence to the counter-claim, a matter which I trust will receive attention.

12. As already observed, the notice to produce is directed not to the defendant but to the defendant's solicitors, a course which is likely to provoke a response claiming legal professional privilege. At least it necessitates a decision on the part of the defendant's solicitors about whether legal professional privilege can be claimed and about the need to give advice to and seek instructions from the defendant on matters pertinent to privilege.

13. No privilege was claimed in the report of Dr Hession to the defendant's solicitors dated 7 November 2001 although the report was marked "confidential". The report begins as follows:

"Thank you for referring documentation regarding Lisa Dean in relation to her claim for injuries sustained in a fall on 17 February 1998 in the course of her employment as a chef by the catering company, More Than A Morsel.

I have perused the reports and statements provided to investigators from co-workers of the plaintiff, which you included with your letter of referral, together with a report from Dr R Lewin, dated 13 December 2000 and a letter to Dr Paul Pavli from Dr Liz Fraser, dated 25 November 1999.

There were two statements from Brian Henry Lizotte, director of More Than a Morsel Pty Limited, dated 20 December 1999 and 6 July 2001."

14. The report proceeds to summarise the contents of the statements of Mr Lizotte and Ms Jurgens. It also summarises the reports of Matt Treacey, Cameron Gray and Dr Robert Lewin. The report continues:

"a. Whether in your opinion it indicates that the Plaintiff may have a drinking problem.

The information mentioned above, which is apparently admitted by Ms Dean, does indicate that she has a drinking problem.

b. If so, the likely or possible nature of that problem.

She is alcohol dependant and probably addicted or in the course of being addicted to alcohol.

c. The likely effect of such an alcohol problem on the capacity for employment of the Plaintiff.

If alcohol is consumed prior to or during work, higher cognitive functions are impaired and performance deteriorates. Overall, future employment opportunities would also be reduced, once her drinking problem is recognised by prospective or subsequent employers.

d. The likely effect of such a drinking problem on the long term health of the Plaintiff.

Serious injury to body parts may result from regular consumption of alcohol to excess, such as impaired liver function, which may lead to cirrhosis. Permanent cognitive impairment, resulting from neuronal death, Korsakoff's psychosis, characterised particularly by delusions and hallucinations, cardiomyopathy and peripheral neuropathy may also occur.

I certify that I have read the expert witness code of conduct contained in Schedule 1 of the District Court Rules. I agree to be bound by the code. To the best of my ability, this report has been prepared in accordance with the code."

15. Order 34B was introduced into the Rules of Court by SL 38 of 1997. It is an example of pre-trial procedures intended to avoid delay, reduce costs and simplify issues for trial. There are similar provisions in England and in Queensland. Provisions like these and other provisions relating to the disclosure of expert evidence before trial have given rise almost to a branch of jurisprudence in its own right. At least they have stimulated forensic discussion of the waiver of legal professional privilege.

16. Judicial pronouncements about waiver of privilege in communications appear to have reached the point where the essential issue is one of fairness, which is not to put too precise a point on the matter at all. One of the sub-topics that has attracted attention is whether a document which has already been disclosed ceases to be the subject of privilege. Sometimes this sub-topic is approached as if there were a principle that disclosure waives privilege. If that is so, then the principle stands apart from the general question of fairness. Then there is a separate area of discourse about whether waiver of privilege by established disclosure of one document involves implied waiver of documents referred to in the disclosed document. Sometimes this question seems to be approached as predominantly or essentially a question of the construction of the disclosed document, the focus being on disclosure (eg. Toohey J, dissenting, in Goldberg v Ng [1995] HCA 39; (1995) 185 CLR 83). Other times the question is about general fairness, whether waiver of privilege in disclosed documents means that fairness requires disclosure of other documents, the focus being on fairness (eg. Attorney-General (NT) v Maurice [1986] HCA 80; (1986) 161 CLR 475).

17. There is also a stream of authority which on one view says that there is no waiver of privilege in documents that have been disclosed under compulsion (eg. Sevic v Roarty [1998] NSWSC 462; (1998) 44 NSWLR 287). Again the focus here is on disclosure and the nature of the circumstances in which disclosure is made. Another view in the same stream but of a different current, is that disclosure under compulsion will generally maintain the privilege and that there is an onus on the party seeking disclosure to show that privilege is lost by disclosure under compulsion (eg. Gummow J, dissenting, in Goldberg v Ng).

18. I think that for the purpose of the present application the weight of authority and the extent to which principle can be derived from it is in favour of fairness being the over-riding consideration and the presence or absence of compulsion is simply one of the factors necessary to take into account when considering whether fairness requires the privilege to be regarded as waived. That seems to me to be the principle in the majority judgment in Goldberg v Ng.

19. In this jurisdiction the provision of the rules of court are of particular importance. Order 34B, where relevant, provides as follows:

"Notice for non-party production

2 On application by a party to an action, the Registrar shall, unless the Court otherwise orders, issue a notice requiring a person who is not a party to the action to produce for inspection a document in the person's possession or control relating to a matter in question in the action that the person could be required to produce at the trial of the action.

Application to set aside or vary

6(1) The respondent to a notice for non-party production or any other party to the action may, within 14 days after its service on the respondent, apply to the Court to have the notice set aside or varied.

(2) On an application under subrule (1), the Court may make such orders as the Court thinks fit.

Privilege or objection

7(1) If the respondent to a notice for non-party production or any other party to the action -

(a) claims that a document specified in the notice is privileged from production; or

(b) otherwise objects to its production;

the respondent need not produce the document and the applicant for the notice, the respondent or that other party may apply to the Court for a determination in relation to the claim or objection.

(2) If the respondent to a notice for a non-party production fails to produce a document specified in the notice, the applicant for the notice may apply to the Court for a determination in relation to the failure.

(3) On an application under subrule (1) or (2), the Court may make such orders as the Court thinks fit."

20. The nature of O 34B is accurately reflected in its heading "Non-Party Production". The history of these provisions and similar provisions elsewhere is set out in Refshauge and Dingwall_: Civil Procedure ACT_ [9850.1]. The authors correctly observe at par [9860.1] that the form of the notice as prescribed as form 27A is important, as it contains information for and instructions to the respondent to the notice who is by definition not a party to the substantive proceedings between the plaintiff and defendant. The point was not taken on behalf of the respondent to the notice of motion who is the defendant and not the solicitors, and the Court has power to dispense with the requirements of the rules in any event. However, I am bound to observe that the notice in evidence (Exhibit A) does not contain any information about how and when the documents are to be produced. The notice is clearly deficient and if it were addressed to a stranger to the litigation, the deficiencies would provide powerful reason for refusing to order compliance with the notice. Practitioners must appreciate the great power put into their hands by O 34B and must exercise that power responsibly. However the defendant's solicitors are not entirely strangers to the litigation and the extent to which they need to consider and comply with the notice is probably no different from that which it would have been if the notice had been addressed to the defendant itself.

21. Also of importance is div 39.8 of the Rules of Court (the product of SL 20 of 1993 and SL 46 of 2000). It contains:

"Service of experts' reports and hospital reports

46(1) Unless the Court otherwise orders, 56 days before the date fixed for determining the trial date the plaintiff, and 49 days before that date each other party, shall serve experts' reports and hospital reports on parties to the proceedings who have an address for service.

(2) Any report which becomes available after the date specified in the preceding subrule and -

(a) is purely responsive to another report served under this rule; or

(b) serves only to update a report previously served;

shall be served on the parties referred to in rule 45 within 3 working days of its receipt by the party who commissioned it.

Evidence of expert to be covered by expert's report

47(1) Except with the leave of the Court or by consent of the parties, the oral evidence in chief of any expert is not admissible unless that evidence is covered by the expert's report served in accordance with rule 46.

(2) For subrule (1) evidence is covered by a report if the report contains the substance of the matters sought to be adduced in evidence.

Expert's reports admissible as evidence of facts

48 Where an expert's report or hospital report is served in accordance with rule 46 or an order made under that rule or the parties give their consent, the report is admissible as evidence of the author's opinion and, where the author's direct oral evidence of a fact upon which the opinion was formed would be admissible as evidence of that fact without further evidence, oral or otherwise, the report is admissible as evidence of that fact."

22. Order 39 r 46 is cast in mandatory terms. But, read literally, it overstates the obligation to serve experts' reports and hospital reports. If it imposed an obligation to serve those reports regardless of whether the party intended to call the expert or tender the report, it might well be outside the rule-making power.

23. In my view, the obligation under O 39 r 46 arises only where the party intends to call the expert or put the report into evidence. Subject to the application of the rules of discovery and production to the Court under subpoena, a party is entitled to retain and not disclose to another party the contents of a report that the party has obtained for the purpose of the litigation, and which is the subject of privilege even a report of an expert who may be qualified to give opinion evidence. There is no sanction in the Rules or otherwise in the law for a failure to serve copies of experts' reports, except as provided for in O 39 r 47. That is to say, where a party fails to serve a report as provided for, the party will not be permitted to call oral evidence from the expert witness.

24. On the other hand, compliance with the obligation gives the serving party a distinct forensic advantage (over and above not being disentitled from calling the expert to give oral evidence). That party will be entitled to have the report admitted as evidence of the author's opinion and also of any evidence of any fact upon which the opinion is formed so long as oral evidence by the author of that fact would be admissible.

25. Accordingly, in my view, a decision to serve an expert's report in compliance with O 39 r 46 is not a decision made under compulsion. It is made consequent upon a tactical forensic decision to call the expert at trial or to tender the report at trial. The party does not have to make a decision to do either. Of course, a party may choose to serve a report for some other legitimate reason, but, by definition, the choice is not made under compulsion.

26. The question for determination then becomes whether a party, having disclosed an expert's report, should be imputed to have disclosed documents containing information upon which the opinion expressed in the report is based. Or put another way, does fairness require disclosure of documents containing such information?

27. In my view, fairness does so require because of the forensic advantage already referred to. The report, when served in accordance with O 39 r 46, becomes admissible evidence of the opinion of the author and of facts upon which the opinion was based, so long as the author's direct evidence of that fact is admissible. The rule does not make admissibility dependant upon disclosure of documents which have helped form the author's opinion. Yet the trial judge is bound by r 47 to treat the report as admissible. Whether there is a discretion in the trial judge to exclude the admissible report is not clear. The provisions of the Evidence Act override the Rules of Court if there is a conflict. Further, the trial judge may have the power to order production under O 34B where there has been a notice for non-party production or where there has been a failure to comply with a subpoena. On the other hand, a trial judge may well regard a report made admissible under O 39 r 47 as of minimal probative value if the documents containing the information on which the opinion is based are not disclosed. There is something to be said for the postponement until the trial of the decision whether to order disclosure. However, one of the purposes of O 34B is to have questions of this nature decided before trial and without the need for issue of the more formal and compulsory process of subpoena. As often happens a rule designed to avoid one type of complexity only creates another.

28. On balance then it seems to me that service of the report of Dr Hession carries with it the implied disclosure of the documents set out in the notice to produce dated 25 July 2002, alternatively fairness requires that any legal professional privilege attaching to such documents be regarded as waived. The Master was, in my view, wrong in approaching the question as if it were confined to deciding whether or not the disclosure was made under compulsion, and further in deciding that service of Dr Hession's report was under compulsion. I determine under O 34B r 7(2) that the documents are the subject of professional legal privilege of the defendant but that such privilege has been waived. I order under O 34B r 7(3) that the defendant instruct Messrs Hunt & Hunt to produce those documents to the plaintiff's solicitors within 14 days at a time and date to be agreed, or in the absence of agreement, to be determined by the Master on two days notice by either party.

29. The costs of this application should be reserved to the trial.

I certify that the preceding twenty-nine (29) numbered paragraphs are a true copy of the Reasons for Judgment herein of his Honour, Chief Justice Miles.

Solicitor for the plaintiff: Blumers Personal Injury Lawyers