Gorman v Cook

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." 8 The Registrar's reasoning for deciding that the document does not fall within the provisions of s 119 is as follows: "7. Mr Tooher was examined on his affidavit. In cross-examination he deposed that he was responsible for the commissioning of the report from the investigator. Mr Tooher is the manager of the NRMA liability claims section, as well as being a legal practitioner experienced in personal injury litigation. He deposed that the report was required because his experience alerted him to the potential of litigation. He based that decision on the fact that solicitors were involved for Ms Gorman, she was an infant and had ingested caustic oven cleaner which had the possibility of causing catastrophic injury. 8. … 9. An examination of the chronology shows that in 1994 any litigation was well over the horizon. Mr Tooher's intuition may have been alerted to a claim which had a possibility of leading to litigation by reason of an infant claimant using lawyers to pursue an application flowing the accidental ingestion of caustic oven cleaner. However, scrutiny of the contemporaneous documents shows otherwise. 9 The Assistant Registrar continued that neither the copy of a letter dated 1 November 1994, from Baker Love, solicitors, to the defendant's husband seeking details of any insurance policies, and a copy of the NRMA request to the investigator showed any signs of contemplated litigation. 10 His reasoning continued: "11. With the consent of both parties, I have inspected the investigator's report. It does not mention any contemplated or anticipated litigation. 12. Accordingly, it appears that litigation could not be classed as being likely, proposed, threatened or as being a real prospect in 1994. 13. Finally, Ms Cantle's affidavit deposes that the plaintiff's solicitors have already, by an unintentional mistake, had access to the investigator's report. 14. For these reasons, access will be granted to the report. Due to the provisions of Part 61, rule 3, such access will be granted after the expiration of 28 days." 11 Assistant Registrar Howe refers to a decision of the Court of Appeal of the Supreme Court of Victoria in Mitsubishi Electric Australia Pty Limited v Victorian Workcover Authority [2002] VSCA 59. At paragraph 16 Batt JA (with whom Callaway and Charles JJA agreed) cites several cases that assist in defining anticipated or intended litigation. They include a variety of phrases such as "in reasonable prospect", "in reasonable contemplation", "reasonable anticipation", "likely", "in fact expected", "proposed or threatened", and "may either be reasonably apprehended, or threatened, or actually begun." At paragraph 19 the court in Mitsubishi distilled the test as being: "there must be a real prospect of litigation, as distinct from a mere possibility, but it does not have to be more likely than not." 12 The defendant submitted that the Assistant Registrar misdirected himself in the application of this test, firstly, by not giving proper regard to Mr Tooher's evidence and referring to the fact that the plaintiff's solicitors due to an unintentional mistake had access to the investigator's report. It has been and still is common ground that there has never been a waiver of the claim for client professional privilege over the investigator's report. 13 The plaintiff submitted that it is primarily the investigator's purpose in preparing the report that is important. However, the purpose referred to in s 199 is the purpose which led the making of the communication or the preparation of the document: Carnell v Mann (1998) 89 FCR 247. What is required is an objective view of all the evidence, taking into account the intention not only of its author, but also the person or authority under whose direction it was procured: see Sparnon v Apand (1996) 138 ALR 735 at 740. 14 Hence it is necessary to examine the facts and circumstances which led to the investigators report being made. Mr Tooher is a solicitor who was at the time of requesting the investigator's report a manager of the liability claims section of the NRMA Insurance Ltd. His roles included the provision of legal advice in relation to claims to NRMA product and claims managers within the areas dealing with home, strata title, on-site caravan and boat insurance, the provision of legal advice to people insured with NRMA and the conduct of both litigated and unlitigated claims. 15 On 18 November 1994 Mr Tooher received a claim form from Daryl Cook, the insured, together with a letter addressed to Mr and Mrs Cook from Baker & Love solicitors which referred to an injury sustained by Laura Fahey and requested details of the Cook's insurance policies held over the house at the date of injury and a copy of the policy. The claim form gave the relevant details requested and at Question 11 asked "Have you been told that a claim will be made against you for the incident?" and the answer given was "Yes" . Thus, the homeowners were aware that a claim was being made against them. 16 In the handwritten annexure to the claim form Mr and Mrs Cook recounted the events that led to the plaintiff drinking the "pinocleen". Mrs Cook recorded that her husband Mr Cook took the plaintiff straight to the laundry, washed out her mouth and made her vomit and that the ambulance officer told him that he had saved her life. 17 The internal document from Mr Tooher to the third party section of NRMA requested an investigation be carried out. The document refers to a claim number being allocated and details refers to the claimant suffering injuries in June 1994 as a result of swallowing caustic soda. It requested the investigator Mr Trevor Care to obtain a detailed statement from the owners of the house, a diagram of the scene, photographs and names of independent witnesses. Mr Cope was requested to obtain answers to specific questions. Upon receipt of this letter, the investigator's task was to carry out the instructions outlined in that letter. Aside from what was contained in that letter, he would have possessed no independent knowledge of the purpose of that request being made. 18 Mr Tooher deposed that it was his view that, due to the nature of the claim and the fact the plaintiff had legal representation, there was a substantial prospect legal proceedings would be commenced on behalf of the plaintiff as a result of the injuries sustained in or around June 1994. It was his view that the dominant purpose for which the factual investigation report was requested was for the purpose of expected litigation. Mr Tooher was cross examined. He gave evidence "I suppose it might sound like putting the cart before the horse but primarily (the purpose) was to determine what would occur if the matter was resolved by a court, you know, if it ultimately came before a judge for resolution and to put ourselves in as good a position as possible to determine that as early as possible." And "Given the nature of this particular claim, clearly it potentially involved serious injuries to a young child and the fact that at that stage the claimant had legal representation, the major purpose that it would have been requested or obtained was for the purpose of anticipated litigation at that stage. (t 4). And to hopefully determine some of the other issues which weren't apparent in the documents, issues such as indemnity to people that we insure in respect of a claim made against them, liability and potential quantum of the claim." (t 4-5). 19 He said that when he received the claim he would consider indemnity to make an assessment of liability and quantum to see what the insurer's exposure might be (t 7) Even though the plaintiff's solicitor's letter did not expressly say that a claim would be made against the defendants, the solicitor believed that it was significantly implied by the wording of the letter. He said that in these type of claims only 10% came to nothing. The solicitor's belief is summed up at page 11 of the transcript where he says "No, as I said earlier in my evidence, it was to put ourselves in a position as soon as possible to determine what would occur if the matter proceeded to resolution before a court, which would include issues like what evidence may or may not be required. With some reports that we obtained, they would lead us to potentially instigate further enquires. As I said, particularly given the nature of this claim, a young child, apparent significant injuries, legal representation seeking details of insurance, it clearly indicated there was a real prospect it would ultimately proceed to litigation." Even though any court hearing may have been years away due to the plaintiff's tender years, it is important to obtain contemporaneous recollections of events, photographs and the like. 20 With respect I cannot agree with the Assistant Registrar's opinion that it was Mr Tooher's intuition which may have alerted him to a claim which had a possibility of leading to litigation. I agree that the words "intended litigation" or "anticipated litigation" were not expressed in the documents, but if the circumstances are viewed objectively, it is my view that the purpose of commissioning the report was primarily due to the prospect of litigation. When Mr Tooher was cross examined he never resiled from his assertion that he considered that the matter would proceed to litigation, and this was the dominant purpose for requiring such a report. The solicitor held the view that there was a real prospect of litigation. It was a realistic view in the circumstances. It is my view that the dominant purpose of the confidential document being prepared was for anticipated proceedings. There was a real prospect of litigation. 21 The appeal is upheld. The decision of Assistant Registrar Howe dated 17 June 2002 is set aside. The claim for client legal privilege over the report to the NRMA from the CTP investigator, Trevor Cope dated 7 December 1994 together with statements, diagrams and photographs is upheld. 22 Cost are discretionary. Normally costs follow the event. The plaintiff is to pay the defendant's costs before the Assistant Registrar and costs of the review.

(2) The decision of Assistant Registrar Howe dated 17 June 2002 is set aside.

(3) The claim for client legal privilege over the report to the NRMA from the CTP investigator, Trevor Cope dated 7 December 1991 together with statements, diagrams and photographs is upheld.

(4) The plaintiff is to pay the defendant's costs before the Assistant Registrar and the costs of the review. **********

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