PRACTICE AND PROCEDURE - documents produced under summons - objection to inspection - legal professional privilege - apparent relevance to issues to be determined

Privacy Act 1988

Hill v Howe (1991) 24 ALD 159

National Employers' Mutual General Insurance Association Ltd v Waind & Hill (1978) 1 NSWLR 372

On 1 February 2005 orders for inspection were made with respect to various documents produced under summonses issued by the Tribunal at the request of the respondent (Comcare) in this matter, and directed to various third parties. Inspection by Comcare was granted, subject to any objections that may be raised by the applicant after she had completed inspection.

By letter and application dated 2 March 2005, and received by the Tribunal on 4 March 2005, the applicant requested that certain documents, as named in the application, be excluded from inspection by Comcare.

The Tribunal heard argument on this application on 1 March 2005. The applicant was represented by her husband, Mr Roger Cavanagh, who made submissions in support of the application. Ms Bean was counsel for Comcare, and was assisted by Ms Marshall.

The parties agreed at the outset that the seventh item on the applicant's list, which had been contained in a file of documents produced by the Flinders Medical Centre, should be excluded from inspection in that it was a letter relating to an unknown patient. That letter is to be returned to the Flinders Medical Centre.

Comcare was willing to concede that the third item listed in the application, being a letter from Laura Stein, Solicitor, dated 8 July 2002 and sent to Roger Cavanagh as representative for the applicant, should be excluded if the Tribunal was satisfied after inspecting the document that it was subject to legal professional privilege. That letter was produced under a summons directed to the Western Clinic.

The Tribunal has inspected that letter and is satisfied that it not covered by a claim of legal professional privilege. It is a letter sent by Comcare to the applicant advising an intended step in the process. It is not a document between solicitor and client. It is Comcare's document, and by asking to see that document they are merely viewing a copy of a document that they already have in their possession.

The test for the Tribunal to apply in exercising the Tribunal's discretion to permit inspection of part or all of the documents by the party who issued the summons is a test of apparent relevance to the issues being litigated : National Employers' Mutual General Insurance Association Ltd v Waind & Hill [1979] HCA 11; (1979) 141 CLR 648. The Tribunal is mindful of this underlying principal in considering whether the documents referred to by the applicant should be made available for inspection.

The applicant points to three different sets of documents that each contain medical information with respect to the applicant. Those documents comprise Dr Shanahan's report of 26 July 1994, Dr Svigos' report of 27 September 1994, and 30 pages of Ashford Hospital notes commencing on 24 July 1994 that relate to a condition unrelated to the conditions for which the applicant makes a claim. These documents were produced by the Memorial Hospital.

The applicant contends that there is no connection between the medical condition referred to in these reports and notes, and the medical condition that is the basis of the applicant's claim.

The Tribunal noted that the applicant's claim involves medical issues that date back as far as 1972. The claim is for a compensable permanent impairment of the back, and there is also a claim for permanent psychiatric impairment. The Tribunal accepts Comcare's contention that anything that would impact on issues of pain or psychological or psychiatric diagnosis may be of relevance, and it is certainly not a "fishing expedition" for Comcare to want to see a full medical history of the applicant. Whether any of this material is ultimately relevant or admissible at the hearing of this matter will be a matter for the Tribunal at a later date. At the point of inspection of documents produced under summons, the Tribunal sees no legitimate basis for excluding these three sets of documents from inspection. Any medical conditions from which the applicant suffers or has suffered may be relevant in the context of the claim.

The Tribunal also does not accept the argument put forward by Comcare that a "legal medical privilege" attaches to these documents. In that regard, Comcare cited Hill v Howe (1991) 24 ALD 159 as authority for the proposition that in Australia, in the absence of specific statutory provision, there is no basis for a claim of legal medical privilege. The Tribunal accepts that this is the position in Australia, and the applicant has not directed the Tribunal to any legislation that would give rise to such a privilege. The reports of Drs Svigos and Shanahan, and the 30 pages of Ashford Hospital notes will not be excluded from inspection.

The other two documents that the applicant wants excluded from inspection are letters written by Mr Roger Cavanagh, the applicant's husband and advocate, to two doctors. One is a letter to Dr Burvill dated 25 January 1994, and copied by the applicant to Dr Cherry. That letter was produced under a summons directed to Dr Cherry's file. The second letter, dated 22 April 1985, and addressed to Dr Ireland, was produced under summons directed to The Western Clinic.

The applicant once more asserted that Comcare was embarking on a fishing expedition in wanting to see these letters. The applicant further claimed that the content of these letters was covered by the Privacy Act 1988 (Commonwealth).

The Privacy Act 1988 defines the categories of documents to which it applies. It applies most specifically to documents held by the Commonwealth, and has no application in this instance.

The letters in question may prove to be of relevance to issues that will arise in the context of the applicant's claim. They are written by the applicant's husband, who is possibly going to be a witness in the proceedings, and present his views at various points in time about issues surrounding his wife's health. There is no reason why this should be excluded from inspection by Comcare. No privilege attaches to these documents. They will not be excluded from inspection.

In the circumstances the application by the applicant to exclude from inspection the medical reports referred to, Ms Stein's letter and the two letters by the applicant's husband is unsuccessful. Comcare is at liberty to inspect and copy all documents returned under summons referred to in the Tribunal's order of 1 February 2005.

I certify that the 16 preceding paragraphs are a true copy of the reasons for the decision herein of Senior Member L Hastwell

Signed: ....................(Signed)..............................................

Associate

Date of Hearing 1 February 2005

Date of Decision 6 April 2005

Counsel for the Applicant Mr R Cavanagh (Applicant's husband)

Solicitor for the Applicant -

Counsel for the Respondent Ms K Bean

Solicitor for the Respondent AGS