Dubbo City Council v Patrick Joseph Barrett

LOWER COURT Supreme Court JURISDICTION : LOWER COURT SC 20313/02 FILE NUMBER(S) : LOWER COURT Newman ADCJ JUDICIAL OFFICER :

IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 40511/03

TOBIAS JA YOUNG CJ in EQ DAVIES AJA

Wednesday 24 September 2003 DUBBO CITY COUNCIL v PATRICK JOSEPH BARRETT

1 TOBIAS JA: I agree with Young CJ in Eq. 2 YOUNG CJ in EQ: This is an appeal pursuant to leave granted at the end of a concurrent hearing from an interlocutory judgment of Acting Justice Newman. In that judgment his Honour upheld a claim of privilege made by the second defendant, Elders Limited ("Elders") when called upon by counsel for the Dubbo City Council ("the Council") to produce medical reports which it had obtained for the purposes of defending a claim for damages made against it by the plaintiff/1st respondent, Mr Barrett. 3 On the appeal Mr R Sheldon of counsel appeared for the Council, Mr M Cranitch SC and Mr M Inglis appeared for the plaintiff/1st respondent and Mr P Morris of counsel for Elders, the 2nd respondent. 4 The background of the decision is that there was an accident at Dubbo cattle saleyards on 20 November 1997. The plaintiff was working as an employee of Elders, the saleyards were occupied and operated by the first defendant, Dubbo City Council ("the Council"). The plaintiff sued both the Council and Elders. 5 When the trial was called upon before Newman AJ on 10 June 2003, counsel for the plaintiff asked the judge by consent to enter a verdict for Elders. This appeared to catch counsel for the Council by surprise. He asked for, and was granted, a short adjournment. Upon resumption, he said: "I make a call for production by the second defendant of copies and originals of all reports of experts of a medical nature served by the second defendant upon the plaintiff in these proceedings."

He also made a call on the plaintiff for the same documents. Mr P Morris of counsel, who appeared for Elders said: "We claim privilege in relation to those documents. I am happy to produce them to the court but they are privileged. They were obtained for medico-legal purposes. Their disclosure was limited to the plaintiff and we haven't waived privilege with respect to any other party."

Counsel for the plaintiff said that he would not produce the documents unless ordered by the court to produce them as the plaintiff did not seek to breach Elders' privilege. 6 The documents were produced to the court. The judge then entered judgment for the second defendant, Elders, and excused Mr Morris from further attendance and said that the dispute would be over access to the documents. Mr Morris remained; the matter was argued, and his Honour determined that the claim for privilege made by Elders as against the Council was valid and declined access to the documents. 7 His Honour thought it of significance, and it is the fact, that there was no cross claim between the Council and Elders. 8 There was tendered before his Honour, on the interlocutory application, a series of letters between the solicitors. On 12 June 2002, a Ms Green of Phillips Fox for the Council, wrote to Mr Harris of Moray & Agnew, for Elders, asking him to serve all documents upon which Elders intended to rely on its proposed cross claim including expert and medical reports by 13 June 2002. On 14 October 2002 Ms Green indicated that she had instructions to consent to Elders filing a cross claim and reiterated the request to be served with the experts' reports. Mr Harris replied on 17 October which letter contained the paragraph: "Our client considers to be absurd your client's rejection of our client's proposal that it provide all of its medico/legal reports on the usual terms in a situation such as this, namely, that your client reimburse 50% of all disbursements incurred." 9 Mr Harris suggested to Ms Green that if she wanted to do anything about it, she should file a notice of motion, but if she did so, the notice of motion to see the reports would be opposed. Ms Green replied that the practice of sharing costs for obtaining medical reports did not apply where a client did not have any liability to the plaintiff and that Elders were obliged to serve all parties with medical reports. Mr Harris replied that he was willing to provide a copy of the reports for 50% of the cost. The fact that Ms Green might subjectively consider that her client was not liable to the plaintiff was irrelevant and that his stance remained the same. 10 Nothing happened then for eight months. No cross claim was ever filed, no notice of motion was ever taken out. 11 His Honour said that it had been submitted that ss 121 and 122 of the Evidence Act 1995 caused Elders to be placed in a position whereby, in its act of serving expert reports upon the plaintiff, privilege had been waived. The correspondence showed that Elders declined to make the reports available to the Council, so that when it served them on the plaintiff it must have been intending to keep the reports confidential to all except the plaintiff. His Honour followed Thomason v Campbelltown MC (1939) 39 SR (NSW) 347, 355, applied by the High Court in Mann v Carnell (1999) 201 CLR 1, 14, and said that there had been waiver of privilege only against the plaintiff. Accordingly the claim for privilege was valid as against the Council. 12 Part 36 r 13 of the Supreme Court Rules 1970 says that where the court by subpoena or otherwise orders a person to produce any documents and Part 13.10 of the Evidence Act is inapplicable, then the court shall not require production of a document where evidence of that document could not be adduced in the proceedings because of Part 3.10 Division 1 of the Evidence Act. The purpose of the rule is to make the rules as to privilege set out in the Evidence Act and relating to the giving of evidence applicable also to the pre-trial procedures; cf Esso Australia Resources Ltd v Commissioner of Taxation (1999) 201 CLR 49. 13 Part 36 r 13A(3) of the Supreme Court Rules provides that in the case of the present type of litigation: "Unless the Court otherwise orders … each party in the proceedings shall … serve experts' report and hospital reports on each other party who has an address for service in the proceedings".

This rule is to be followed within a specified time frame. This rule was not complied with in the instant case in that Elders only served the plaintiff and not, as it was obliged to do under the rule, the Council. 14 As to this, Elders says that it could have filed a notice of motion, and had it done so, the court would have made an order that the rule not be complied with because there was no cross claim between the two defendants and it would have been unfair to require Elders to disclose its reports without a contribution to their cost. It says that instead of doing this, it made it clear to the Council's solicitors that unless they filed a notice of motion seeking that the rule be complied with, they would not supply the reports and if a motion was filed, they would counterclaim that they should not be ordered to give the reports. 15 In Akins v Abigroup Ltd (1998) 43 NSWLR 539, this Court consisting of Mason P, Priestley JA and Rolfe AJA, determined in connection with a practice note in the then Commercial Division requiring experts' reports to be served on other parties, that such reports were disclosed under compulsion of law so that any privilege which attached to them was not lost, this result coming about because of s 122(2)(c) of the Evidence Act. The decision was followed by the Full Federal Court in The Bell Group Ltd v Westpac Banking Corporation (1998) 86 FCR 215. 16 Although Mr Sheldon sought to distinguish the case on the basis of different terms of the then practice note and the current rule, particularly drawing attention to the fact that the practice note contained "(e) nothing in this order shall deprive any party of its right to treat any communication as privileged or make admissible evidence otherwise inadmissible", I myself cannot see anything which distinguishes the present case from Akins. See also Sevic v Roarty (1998) 44 NSWLR 287, particularly at 293 where Akins was applied and the members of the Court of Appeal discuss the differences between the practice under the Evidence Act and that at common law. 17 It might be argued that because there was no proper compliance with Part 36 r 13A(3) in that there was only service on the plaintiff and not on the Council, the disclosure was not by compulsion of law. I cannot see, in the light of the correspondence, how this inference could be taken. Of course, if it is not taken, then it must follow from Akins' case that the privilege has not been waived. 18 Even if the inference could be drawn, then the claimant would still be faced with the problem that there is not necessarily a waiver of legal professional privilege by making documents available to a particular person: Mann v Carnell (supra). 19 I cannot see why any forensic advantage would be given by disclosing the documents to the plaintiff but not to the Council. Mr Cranitch SC for the plaintiff tried to convince me that there could be some forensic advantage, but despite his best efforts I could not see it. However, the motive is unimportant. It was open to Elders to act the way it did and in my view the learned judge was correct in finding that privilege had not been waived. 20 I very much regret this decision which I am obliged to reach in view of the terms of s 122(2)(c) of the Evidence Act because it runs contrary to what I have understood to be good practice. Furthermore, it is rather bizarre that a person claimed that there is privilege to certain documents, yet that person is prepared to sell that privilege for 50% of the cost of acquiring the information without that much worry as to the nature of the material. 21 It was pointed out to counsel during the argument that it was common practice for parties to re-serve medical reports on other parties if they themselves felt they might wish to tender those reports. Mr Morris acknowledged that this practice was common but said it had never been held that the person who re-served the report could ever use it as it may well have been subject to privilege. This is an accurate statement but there are complications because it may be that the report is deployed in proceedings where the person owning the privilege has no part to play. However, the doctrine expounded in Home Office v Harman (1983) 1 AC 280 may be a complete answer to that thought. 22 It must also be remembered too that there is no property in a witness. The Bar Rules for many years have emphasised this. A witness is available to be interviewed by any lawyer to whom the witness will speak. Likewise, once an affidavit has been filed, usually any party can read it in evidence (subject to making the deponent available for cross examination if required: In re Margetson and Jones (1897) 2 Ch 314; Barristers' Board of Western Australia v Tranter Corp Pty Ltd (1976) WAR 65, 67. See also Austress Freyssinet Pty Ltd v Marlin International Pty Ltd [2002] NSWSC 958, a decision of Barrett J. 23 However, the state of authorities is such that the appeal must be dismissed with costs. 24 DAVIES AJA: I agree with the reasons for judgment of Young CJ in Eq and with the orders which his Honour proposes. I wish to comment on one aspect of the matter only. 25 Part 36 r 13A(3) of the Supreme Court Rules, 1970 provides that, unless the Court otherwise orders, a party shall serve experts' reports and hospital reports on each other party who has an address for service in the proceedings. There is a similar provision in the District Court Rules. These rules mean what they say and they are not to be flouted. As Mason P said in Akins v Abigroup Ltd (1998) 43 NSWLR 539 at 551, the rules will be enforced "with all appropriate sanctions". The course with which the solicitor for Elders took was inexcusable and, had an appropriate process been instituted by it, I would have expected the solicitor to have been sternly reminded of the force and effect of the rules. 26 However, no such process was instituted. I agree with Young CJ in Eq that, having regard to the process that was before the Court below, the decision of the trial Judge was correct. **********

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