Hoe v Kode [2024] TASSC 51

Evidence Act 2001, ss 117, 118, 119, 122, 131A

Judgment Number: [2024] TASSC 51

1. There are two interlocutory applications before the Court. Each relates to a document containing a response made by the defendant during the course of a complaint process conducted by the Australian Health Practitioner Regulation Agency (AHPRA). The facts giving rise to the plaintiff's complaint to AHPRA are (for present purposes) also those which give rise to the plaintiff's cause of action against the defendant which is the subject of these proceedings. The issue on each application relates to whether each document attracts client legal privilege; and in the case of the first response, if it is privileged, whether the privilege was lost when the defendant's lawyers disclosed it to the plaintiff.
2. The defendant concedes that each document contains material that is relevant to the issues in this action.
3. For the following reasons, I have reached the view that the plaintiff's application should be granted, and the defendant's application should be dismissed.

1. The plaintiff's application seeks disclosure of the defendant's second response to AHPRA dated 15 April 2024, contained in a letter from his lawyers to AHPRA. It is a document which the defendant did not disclose to the plaintiff under his continuing obligation to discover relevant documents under Rule 382, but instead it came to the plaintiff's attention during her incidental communication with AHPRA about her complaint. Relevantly, this application is in the following terms:

"1 Pursuant to Rule 395 of the Supreme Court Rules the Defendant produce for inspection his copy of the recent response to AHPRA referred to in the email of Defendant's lawyers dated 26th April 2024 and the Court inspect that document to decide whether the claims of legal privilege and professional confidential privilege are valid.

2 In the event the Court decides the claim for legal and confidential privilege are invalid, the Defendant discover the document to the Plaintiff and permit the Plaintiff to inspect that document during business hours and/or supply the Plaintiff with a copy of that document provided the Plaintiff pays the Defendant the reasonable costs of photocopying the document."

1. The defendant's application seeks orders giving the defendant's already disclosed first response the status of a privileged document, together with certain consequential orders. The defendant contends that the first response is privileged and that privilege was not waived when it was sent to the defendant in April 2023. By letter dated 30 August 2024, the defendant applied to the Court by letter in the following terms:

"1 That the Defendant be permitted to amend his List of Documents as verified by Affidavit dated 4 April 2022 by adding the following document to Part II of the First Schedule:

Response from Dr Gary Kode to the Australian Health Practitioner Regulation Agency (AHPRA) dated 30 January 2023; and

1. That the Plaintiff, her solicitors and counsel be ordered to deliver up to the Defendant's solicitors the document referred to in order (1), any copy of that document, or other written record within their possession relating to or containing information derived from that document; and
2. That the Plaintiff, her solicitors and counsel be restrained from making further use of the document referred to in order (1) in these proceedings."

1. I will say something briefly about the context in which the disputed documents came into existence. By writ filed on 17 June 2021 the plaintiff claims damages for personal injuries suffered as a result of the defendant's negligent medical treatment of the plaintiff during and around surgery undertaken on 20 June 2019 at Calvary St Luke's Hospital, Launceston. On 25 May 2022 the plaintiff submitted a complaint to AHPRA about "a concern" relating to her treatment by the defendant, seeking "an apology, a refund, action to keep the public safe, disciplinary action, and to suspend the practitioner". The complaint alleges that the plaintiff has suffered "major psychological or emotional harm and significant or major physical harm".
2. On 6 January 2023, AHPRA provided the complaint to the defendant. AHPRA wrote to the defendant by letter titled "Request to Response", which included the following:

"You are invited to provide a written response to the notification and any information you consider relevant by no later than 20 January 2023.

... The response you provide will be presented to the Board along with a copy of the notification have received... Please note that should your response not be received by the due date, the Board will conduct an assessment of the notification without the benefit of your response.

It is important to note that any response information you provide may also be made available to the notifier. This includes the board's final decision and the reasons for that decision. Please advise us if you provide any sensitive or confidential information, or if there is any information you do not wish to be provided to the notifier.

The way AHPRA collect, use and disclose personal information set in our Privacy Policy."[1]

1. The defendant provided a response to that notification (the first response). There is limited evidence about how the response was prepared because the defendant did not give any evidence about it; but the defendant's lawyer, Mr Deayton, affirmed an affidavit on 26 August 2024. Relevantly, it stated:

"4 ... our client provided a response to the Plaintiff's AHPRA notification in January 2023. Both myself and a colleague from my Firm, Charles Law, assisted the Defendant in preparing that response. It was forwarded to AHPRA from our Firm directly on 30 January 2023.

1. ... I recall receiving in April 2023 a request from the Plaintiff's solicitors for discovery of our client's AHPRA response dated 30 January 2023.
2. I recall considering the document's discoverability at that time. I initially formed the view that no privilege attached to that document and I considered it was otherwise relevant for the purposes of discovery.
3. I accordingly came to the view that I was required by law to discover the document and I did so on 17 April 2023 by letter to the Plaintiff's solicitors.
4. I did not seek the Defendant's instructions to waive privilege over that document at any time."
5. The defendant's first response to AHPRA was disclosed during the discovery process. The affidavit of the plaintiff's lawyer, Bernadette Davies, sworn 15 August 2024, annexes Mr Deayton's letter, which states, relevantly:

I attach copies of all documents in our client's possession relating to the AHPRA notification, being the notification, our client's response dated 30 January 2023, and correspondence from AHPRA dated 31 March 2023;

1. In the affidavit of the plaintiff's solicitor, Ms Bernadette Davies, sworn 16 July 2024, she explained the existence of the "second response":

"17 I am instructed by the Plaintiff that on 6 March 2024 the Plaintiff was advised by AHPRA that the written statement of Lisa Jansen directly relevant to the issues in this action of smoking and weight loss had been sent to Dr Kode and a subsequent response sought."

1. A copy of the letter from AHPRA dated 6 March 2024 is annexed and marked with the letter 'L'.
2. I am instructed that on 19 April 2024, the Plaintiff was notified by AHPRA by email that they had received Dr Kode's supplementary response and they anticipated the matter would be considered by the board in the next month. This email is annexed hereto and marked with the letter 'M'."
3. Ms Davies stated that she wrote to Mr Deayton requesting a copy of the second response but that Mr Deayton replied with the claim that it was privileged.
4. Mr Deayton deposed at par 10 of his affidavit that the second response from the defendant to AHRPA "... was prepared solely by me on the defendant's behalf and had been forwarded to AHPRA on 15 April 2024". Even so, it can be inferred that when Mr Deayton prepared the response, he did so on his client's instructions; and that the content of his letter to AHPRA containing the second response reflected the instructions that were given to him by the defendant.

1. The law governing the determination of this application is the Evidence Act 2001 (the Act), Part 10, which applies to the determination of an objection to the production of a document on the grounds of client legal privilege, the context of pre-trial discovery in the court's civil jurisdiction. The Act, s 131A[2], provides relevantly that the court must determine such an objection by applying the provisions of Part 10, Div 1, with any necessary modifications as if the objection to giving information or producing a document were an objection to the giving or adducing of evidence. Section 131A operates where a person is required by a "disclosure requirement" to disclose a communication or document claimed to be privileged. The expression "disclosure requirement" includes "pre-trial discovery": s 131A(2)(b).
2. While the defendant has already discovered the first response, the plaintiff only learned about the existence of the second response during the course of the AHPRA investigation of her complaint. The second response has not been discovered to the plaintiff but it has been produced to the Court in order that there be a determination of its privileged status and the validity of the defendant's objection to producing it: see r 395; see also Kentish Council v Bellenjuc Pty Ltd [2011] TASSC 58, 21 Tas R 189 at [9] per Porter J.
3. The issues for determination are:
   1. For the purposes of the Act, s 118 (advice privilege), was either response:

(a) a confidential communication made between the plaintiff and his lawyer; or

(b) the contents of a confidential document ... prepared by the defendant or his lawyer for the dominant purpose of the lawyer providing legal advice to the client.

1. For the purposes of the Act, s 119 (litigation privilege), was either response:

(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 ... 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.

1. Preliminary to the resolution of the primary issues is the issue of whether either of the responses meet the description "confidential communication" or "confidential document" for the purposes of the Act: s 117.

1. If either of the responses is privileged, whether privilege has been lost because the defendant has acted in a way that is inconsistent with the claim of privilege: s 122(2), s 122(3).
2. The defendant has the onus of showing that a communication is privileged: Grant v Downs [1976] HCA 63; (1976) 135 CLR 674 at 689. Further, generally:
   • It is for the party claiming privilege to justify that claim, either by pointing to the nature of the documents or (in the absence of agreement) by evidence describing the circumstances in which they were brought into existence: see generally Buzzle Operations v Apple Computer Australia [2009] NSWSC 225, 74 NSWLR 469 at [22]; DBCT Management Pty Ltd v McConnell Dowell Constructors & Anor [2021] FCA 512 at [81]; see also Cross on Evidence at [25240].

• There is a need for focused and specific evidence in order to ground a claim for legal professional privilege. Verbal formulae and bare conclusory assertions of purpose are not sufficient to make out a claim for privilege. Where possible the Court should be assisted by evidence of the thought processes behind, or the nature and purpose of advice being sought, in respect of each particular document. Mere general assertions of the purpose of creation of the documents are insufficient to discharge this onus. The evidence must permit a conclusion to be drawn as to the dominant purpose of the creation of any particular document or entry in a document. Simply to show that one purposeful creation of the document was to obtain legal advice or assistance is not good enough: Barnes v Commissioner of Taxation [2007] FCAFC 88, 242 ALR 601 at [18].

• To sustain a claim of privilege, the claimant must prove facts that establish that it is properly made. A mere sworn assertion that the documents are privileged does not suffice, because it is an inadmissible assertion of law; the claimant must set out the facts from which the court can see that the assertion is rightly made, or in other words "expose ... facts from which the [court] would have been able to make an informed decision as to whether the claim was supportable". The evidence must reveal the relevant characteristics of each document in respect of which privilege is claimed, and must do so by admissible direct evidence, not hearsay: Hancock v Rinehart [2016] NSWSC 12 per Brereton J at [7].

1. The defendant's submissions included the following propositions:

(a) Legal professional privilege is a rule of substantive law which may be availed of by a person to resist the giving of information or the production of documents which would reveal communications between a client and his or her lawyer made for the dominant purpose of giving or obtaining legal advice or the provision of legal services, including representation in legal proceedings - see The Daniels Corporation International Pty Ltd v Australian Competition and Consumer Commission [2002] HCA 49 at [9].

(b) Privilege attaches to the document for all purposes not just in the matter for which advice is given. In relation to any particular document, the essence for the test for legal professional privilege at common law was that it records a confidential communication: Natuna Pty Ltd v Cook [2006] NSWSC 1367 at [7]; Ryder v Frohlich [2005] NSWSC 1342 at [11]-[12]; Interchase Corporation Ltd v Grosvenor Hill (Queensland) Pty Ltd (No 1) [1999] 1 Qd R 141.

(c) Inspection of the two documents will, from the face of the documents, show that they reveal communications between a client and his or her lawyer made for the dominant purpose of giving or obtaining legal advice or the provision of legal services.

(d) The contents of the defendant's responses to AHPRA attract privilege because they reveal confidential "communications" within the meaning of ss 117, 118 and 119 of the Evidence Act. The information contained in the documents must have been obtained from the defendant and can only have been obtained from him for the purpose of getting legal advice. This is a discrete basis to assert privilege over the relevant responses above and beyond the status of the document itself.

(e) Where the communication is constituted by or recorded in a document, the document is merely evidence of the communication. When privilege is claimed for a document, it is because the document records or constitutes a communication prepared, given or received for the purpose of obtaining legal advice or assistance: Esso Australia Resources Ltd v Federal Commissioner of Taxation [1999] HCA 67, 201 CLR 49 at [80].

(f) A document that records a communication that is not a confidential communication may nonetheless be a confidential document for the purposes of s 117: Sugden v Sugden [2007] NSWCA 312 at [64]- [67], [69].

(g) Section 119(b) goes outside the area of communications to which both s 119(a) and common law concepts of privilege are concerned. The cumulative effect of both ss 117 and 119 is therefore to expand the scope of the privilege, not narrow it. Here, privilege is asserted on both limbs of s 119 over both responses to AHPRA; that is, that the documents contain both confidential communications and are themselves confidential.

(h) The rules relating to litigation privilege under the Evidence Act do not prevent the Court from drawing appropriate inferences as to the whether a communication is confidential. Section 183 is directly applicable to this question.

(i) The question is what communication to Mr Deayton from the defendant is contained in the relevant documents. Each response clearly reveals communications between the client and his lawyer. The question is: were those communications made for the dominant purpose of giving or obtaining legal advice?

(j) The disclosure of each letter results in the disclosure of confidential communication. It is the purpose of the communication - as distinct from the purpose of the document - which is important.

(k) What happened in respect of each document was that the defendant "comes into his lawyers, and they work at a response together".

(l) A "confidential document" for the purposes of ss 117, 118 and 119 means a document that when it was prepared, the person who prepared it (the defendant in relation to the first response; and Mr Deayton in relation to the second response), or the person for whom it was prepared (in both cases, AHPRA) was under an express or implied obligation not to disclose its contents, whether or not the obligation arises under law. The Health Practitioner Regulation National Law Act 2009[3] (the national law) imposed an obligation not to disclose 'protected information', defined as information that comes to a person's knowledge in the course of, or because of the person exercising functions under the national law: ss 214 and 216.

(m) The definitions of "confidentiality" in s 117 of the Evidence Act are not to be read narrowly. It is not confined to obligations or confidentiality that arise, for instance, in the context of a solicitor-client relationship. Rather, it can extend to an unspoken obligation, and to an ethical, moral or social obligation. Here, the defendant relies upon the express obligation of confidentiality mandated upon persons performing functions under the national law, however whether or not that particular obligation applies in the circumstances of the defendant's AHPRA responses is not wholly determinative of the question. The entirety of the circumstances must be considered.

(n) Each case will turn on the nature of the relationship in question and the circumstances, including conduct and/or conversations, surrounding the communications or documents in question, as well as the nature of the documents in question and the purpose and context of their communication: New South Wales v Jackson [2007] NSWCA 279 at [41].

(o) Here, the defendant relies upon the express obligation of confidentiality mandated upon persons performing functions under the national law, however whether or not that particular obligation applies in the circumstances of the defendant's AHPRA responses is not wholly determinative of the question. The entirety of the circumstances must be considered.

(p) AHPRA was under an express, or even implied obligation not to disclose the contents of the responses. Each response came to AHPRA's knowledge via the exercise of its investigative function under the national law. As such, each response was "protected information" for the purposes of the national law, s 214. The national law, s 216, provides that "a person ... exercising functions under this Law must not disclose to another person protected information".

1. The plaintiff's submissions included the following:

(a) The first response is not a "confidential document" for the purposes of s 117. Even if it was, it was not prepared for the dominant purpose of the client being provided with professional legal services.

(b) The definition of "confidential document" in s 117 prescribes the essential element as being a communication requiring that it is not to be disclosed as opposed to a communication (as with the responses) for the clear purpose of disclosure.

(c) The obvious and overriding intention in the production and purpose of the first response (and it would seem likely) the second response was for its disclosure to AHPRA to persuade this body that the defendant's care was not negligent and complied with the appropriate standard of care and that the notification should not be upheld. The defendant's responses were created to be disclosed to AHPRA and were created for the purpose of sending to AHPRA.

(d) The defendant's affidavit evidence lacked any definition as to the circumstances in which the first response was prepared other than saying that Mr Deayton and Mr Law "assisted" in its preparation. That term is vague and there is nothing on the face of the first response to indicate the extent of that assistance. "Assisted" could cover no more than answering some questions that the defendant asked as he prepared the document. The evidence discloses almost nothing as to the circumstances of the preparation of the first response. The defendant carries the onus of establishing these facts.

(e) Under s 119, the relevant dominant purpose is not that the communication or document be for the purposes of litigation, but that it be for the purposes of the client being provided with 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). That is a narrower concept: Buzzle Operations v Apple Computer Australia (above) at [19].

(f) The duty of confidentiality under the national law, s 216(1) is subject to s 216(2) which clearly empowers an investigator to disclose information "in the exercise of a function under the act". The defendant was expressly asked to advise any information he wished to be kept confidential and it appears he made no such request as to any information he supplied. There was no compulsion involved: it was an invitation to respond.

(g) In relation to the second response, its dominant purpose was for disclosure to AHPRA to persuade it that the defendant treated the plaintiff with all due care and not to uphold the notification. That was the dominant purpose. That is sufficient to deny privilege.

(h) If the defendant requested confidentiality for the second response, but if the document was prepared by the defendant's solicitors for disclosure to AHPRA and on letterhead, that is sufficient to place it outside the definition of "confidential document" contained in s 117. It was intentionally designed for disclosure to an arms-length third-party (a decision-making body) which potentially could make adverse decisions against the defendant. It is not enough that there be some element of confidentiality, the terms of the relevant statutory provisions must be satisfied.

The status of each response as a confidential communication or a confidential document

1. The defendant's submissions seek to characterise the responses as either a confidential communication or a confidential document in each case. For the purposes of Part 10 of the Act, s 117 defines the expressions "confidential communication" and "confidential document" as follows:

"confidential communication means a communication made in such circumstances that, when it was made -

was under an express or implied obligation not to disclose its contents, whether or not the obligation arises under law;

confidential document means a document prepared in such circumstances that, when it was prepared -

was under an express or implied obligation not to disclose its contents, whether or not the obligation arises under law;"

1. It is accepted by the defendant that the first response was prepared by him (transcript p 39-40) and that it was prepared for AHPRA (transcript p 48-49), satisfying the first limb of the definitions above. However, the first response does not satisfy the second limb of the definitions in s 117 because it was not made by or to any person who was under an express or implied obligation not to disclose its contents, whether or not the obligation arose under law.
2. The defendant submitted that confidentiality arose on two bases:

(a) that the first response is a communication between the defendant and his lawyer made for the dominant purpose of giving or obtaining legal advice or the provision of legal services; and

(b) that AHPRA was under an express or implied obligation not to disclose its contents.

1. In relation to the first basis, on its face, the first response is a first-person narrative by the defendant to AHPRA, directly addressing the plaintiff's complaint against him. It is not on Murdoch Clarke letterhead and is styled as if it is the defendant's own work. Mr Deayton's affidavit states simply that "it was forwarded to AHPRA from our Firm directly on 30 January 2023".
2. Mr Deayton does not depose to anything which either he or Mr Law did that might be reasonably characterised as communicating with the defendant as submitted at transcript p 39-40 and p 43 - confidentially or otherwise. He says simply that they "assisted the defendant in preparing that response". There is no evidence from Mr Deayton, Mr Law or the defendant as to the nature, timing or extent of the assistance provided by the lawyers.
3. The defendant submits that the Court should approach the first response on the basis it is a record of a confidential communication made between the defendant and his lawyer. It is submitted that if it is approached in this way, the first response reveals a "confidential communication" within the meaning of Part 10, Div 1. I reject this submission. The defendant has not discharged his onus of showing that, as a matter of fact, it can be inferred that the first response contains confidential information "that can only have been obtained by the lawyer from the defendant" for the purpose of getting legal advice: transcript p 39-40.
4. I cannot accept the defendant's counsel's submission as it applies to the first response, that the defendant "comes into his lawyers and they work out a response together" (transcript p 44). That is unsupported by any evidence. Mr Deayton's evidence is too vague and imprecise to support any inference being drawn about the process by which the first response was made or prepared, for the purposes of Part 10 of the Act.
5. The first response to AHPRA is not analogous to any of the documents described by McDougall J at par [3] in Sugden (above), (a solicitor's file notes made following discussions with the defendant, and a draft statement by the defendant which had been annotated by counsel). Nor is it analogous to the draft valuation reports of an expert witness considered in Natuna (above). This approach to the first response, as contended for by the defendant, has an element of absurdity: treating it as undisclosed, privileged material on the one hand, while acknowledging that the very same material was published to AHPRA on the other.
6. The defendant's second basis of confidentiality of the first response was from the operation of the national law. I reject this submission to the extent that it applies to the first response. AHPRA was not under any obligation not to disclose the contents of the first response.
7. While the national law, s 216(1), imposes a duty of confidentiality in relation to 'protected information', that prohibition does not apply where AHPRA is free to disclose the protected information in the exercise of its investigative functions: s 216(2). I accept the plaintiff's submission that s 216(2) empowers an investigator to disclose information "in the exercise of a function under the act". AHPRA's functions under the national law include the investigation of a complaint and the management of information obtained in the course of the investigation. AHPRA's privacy policy governed the exercise of that function and the letter of January 6, 2023 informed the defendant that in accordance with that policy, AHPRA was free to disclose his responses (the protected information) to the plaintiff/complainant. The defendant was invited under that policy to advise AHPRA about any information he wished to be kept confidential. There is no evidence that the defendant made any such request in respect of the first response.
8. For the reasons above, the first response does not possess the quality of confidentiality and therefore it does not meet the statutory test of being either a "confidential communication" or "confidential document".

1. The evidence is clear that the second response was prepared by Mr Deayton. It was provided to AHPRA in the form of a legal letter from Murdoch Clarke. It is common ground that it was prepared for AHPRA (transcript p 48-49). On its face, it is to be accepted that the second response was prepared from instructions provided to Mr Deayton by the defendant. To that extent, the second response is a communication or a document recording what the defendant instructed his lawyers to communicate to AHPRA.
2. Beyond Mr Deayton's statement that the second response was "prepared solely by me", there is no evidence about the process by which the second response was prepared. The reference in the second response to instructions given by the defendant to the lawyer might possibly be thought to be confidential communications between the defendant and the lawyer, but the inclusion of those instructions in the letter to AHPRA would plainly result in the loss of confidentiality in relation to that same subject matter. Including those instructions in the letter containing the second response certainly negates any suggestion that either the defendant or the lawyer was under any obligation to keep those instructions confidential. The defendant made the same submission in relation to the second response as it made in relation to the first: that it is a record of a confidential communication made between the defendant and his lawyer. For these reasons, together with those expressed above in relation to the first response, I reject that contention.
3. Having said all that, when the second response was made or prepared, AHPRA was under an obligation not to disclose its contents. That obligation was probably express, certainly implied and it did not arise under the law (applying those expressions as they are used in the relevant definitions in s 117). The obligation arises from the face of the document itself. Regardless of whether the second response is properly characterised as a "communication" or as a "document", AHPRA was under an obligation not to disclose its contents.

(a) the first response is neither a confidential communication nor a confidential document; and

(b) the second response is either a confidential communication or a confidential document,

I now address the issue whether either or both of the two responses were created for the dominant purpose prescribed by s 118 (advice privilege) or by s 119 (litigation privilege). I will address this issue in respect of both responses even though I have determined that the first response does not possess the requisite quality of confidentiality.

1. To satisfy the test for legal advice privilege under s 118, the defendant must show that the communication was made, or the document was prepared:

"... for the dominant purpose of the lawyer, or one or more of the lawyers, providing legal advice to the client."

1. To satisfy the test for litigation privilege under s 119, the defendant must show that the relevant confidential communication was made or the document 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."

1. The questions of the identity of the person who made or prepared each response is dealt with above at [20] and [30] and I do not revisit that topic here.

1. The defendant bears the onus of satisfying the Court about the existence of the privilege. That onus will only be discharged if the defendant establishes facts from which the Court may determine that the privilege is being properly claimed. Powercor Australia Ltd v Perry [2011] 33 VR 548 at [42] per Warren CJ, Nettle and Tate JJA.
2. The "purpose" referred to in each of ss 118 and 119 is the purpose which led to the making of the communication or the preparation of the document.[4] The test is directed towards the purpose of bringing the document into existence.[5] The "dominant" purpose is the ruling, prevailing or most influential purpose,[6] at the time the document was brought into existence.[7] There can be only one dominant purpose.[8] If there are two purposes of equal weight, neither fits the description of a "dominant purpose".[9] While the relevant purpose must be objectively determined,[10] the subjective purpose of the person who made the communication or prepared the document is "always relevant and often decisive".[11] In Carter Holt Harvey Wood Products Australia Pty Ltd v Auspine [2008] VSCA 59, the Victorian Court of Appeal stated at [2]:

"The application of the dominant purpose test, prescribed by the High Court decision in Esso, involves two distinct steps. The first is the ascertainment of the subjective purpose(s) of the person(s) making or commissioning the communication in question. And, as in this case, that investigation will depend upon the evidence which is led about that purpose or those purposes. If the Court concludes that there was more than one purpose, at least one of which was a purpose capable of attracting legal professional privilege, the second step is to determine whether the party claiming the privilege has established that the privileged purpose was the dominant purpose."

1. In Esso (above) at [77] McHugh J (in dissent on the test, but not as to what follows) observed that frequently the issue of dominant purpose will turn on the surrounding facts and circumstances, particularly previous dealings between the parties.

1. No direct evidence was adduced from the defendant (as the person who made the first response and for whom the second was prepared) about his subjective purpose in relation to either response. Nor did Mr Deayton give any direct evidence about his purpose in preparing the second response for the defendant. It is apparent that at least one of Mr Deayton's purposes was to convey his client's instructions to AHPRA in response to the further investigation of the complaint.
2. The facts and circumstances do not enable the Court to make findings with any confidence about the existence of a purpose capable of attracting advice privilege or litigation privilege in respect of either of the two responses. The defendant bore the onus of satisfying the Court as to the existence of his dominant purpose in the making and preparation of his responses and he has failed to discharge that onus.
3. The facts and circumstances strongly suggest that the purpose for which each response was brought into existence was to communicate to AHPRA, with the intention of persuading it that the defendant treated the plaintiff with all due care, and that it should not uphold the plaintiff's notification of a complaint.[12] I accept the plaintiff's submission in that regard.
4. The evidence fails to establish that either of the responses were brought into existence for dominant purpose of a lawyer providing legal advice to the defendant, for the purposes of s 118. It was not argued by the defendant that, for the purposes of s 119, either of the responses were brought into existence for the dominant purpose of the defendant being provided with legal services related to (relevantly) an Australian proceeding in which the defendant is, maybe, was or might be a party.

1. Finally, I will address the issue of waiver, or loss of privilege, in respect of the first response, in the event that I am wrong in the conclusion that it is not privileged.
2. The plaintiff submits that if the first response is privileged, then privilege was lost when the defendant disclosed the document. Privilege is lost where the party entitled to it performs an act which is inconsistent with the confidence preserved by the privilege. The Act, s 122 relevantly provides as follows:

"122 Loss of client legal privilege: consent and related matters

(2) Subject to subsection (5) , this Division does not prevent the adducing of evidence if the client or party concerned has acted in a way that is inconsistent with the client or party objecting to the adducing of the evidence because it would result in a disclosure of a kind referred to in section 118 , 119 or 120 .

(3) Without limiting subsection (2), a client or party is taken to have so acted if -

(a) the client or party knowingly and voluntarily disclosed the substance of the evidence to another person; or

(b) the substance of the evidence has been disclosed with the express or implied consent of the client or party.

(4) The reference in subsection (3)(a) to a knowing and voluntary disclosure does not include a reference to a disclosure by a person who was, at the time of the disclosure, an employee or agent of the client or party or of a lawyer of the client or party unless the employee or agent was authorised by the client, party or lawyer to make the disclosure."

1. In the circumstances of this case, the defendant's knowing and voluntary disclosure of the first response to the plaintiff by the defendant on 17 April 2023, was absolutely inconsistent with his current objection for the purposes of ss 122(2) and 122(3). Although legal professional privilege is the privilege of the client which cannot be waived without the clients' consent, in these circumstances it was within Mr Deayton's ostensible authority to waive privilege on the client's behalf. Such ostensible authority exists in relation to the preparation of a case for trial and the conduct of the trial: Meltend Pty Ltd & Ors v Restoration Clinics of Australia Pty Ltd & Ors [1997] FCA 545 per Goldberg J, citing Great Atlantic Insurance Co v Home Insurance Co [1981]1 WLR 529 at 539.
2. When Mr Deayton sent the first response to the plaintiff's solicitors on 17 April 2023, he did so as the consequence of a decision made following a purposeful application of his legal expertise. He stated:

"6 I recall considering the document's discoverability at that time. I initially formed the view that no privilege attached to that document and I considered it was otherwise relevant for the purposes of discovery.

1. I accordingly came to the view that I was required by law to discover the document and I did so on 17 April 2023 by letter to the Plaintiff's solicitors.
2. I did not seek the Defendant's instructions to waive privilege over that document at any time."
3. These parts of Mr Deayton's affidavit establish that he made a considered professional judgment which took into account issues of the defendant's discovery obligation under the rules and the law relating to client legal privilege. There is no basis upon which that can be characterised as a mistake or inadvertence. I infer that Mr Deayton did not seek the defendant's instructions because he knew he had the authority to make the decision whether or not to disclose the material; and felt he had made the conscious and correct legal assessment of the discoverability of the first response. In my view, his assessment was correct.

(a) The first response does not meet the statutory test of being a "confidential communication" because neither the party who made it, nor the party to whom it was made, was under an obligation not to disclose it: s 117.

(b) The second response meets the statutory test of being either a "confidential communication" or "confidential document" because AHPRA was under an implied obligation not to disclose it: s 117.

(c) Neither the first nor the second response was brought into existence for the dominant purpose of a lawyer providing legal advice to the defendant: s 118.

(d) Neither the first nor the second response was brought into existence for the dominant purpose of the defendant being provided with professional legal services relating to a relevant proceeding in which the client is or may be, or was or might have been, a party: s 119.

(e) Even if the first response was privileged, the privilege was lost when it was sent to the plaintiff on 17 April 2023: ss 122(2) and 122(3).

1. I grant the plaintiff's application. The defendant is to make discovery of the "second response" to the plaintiff by providing a copy within 24 hours. There is liberty to apply for further orders.
2. The defendant's application is dismissed.

[1] AHPRA's privacy policy (as it related to medical practitioners) was not before the Court.

[2] Section 131A was inserted by the Evidence Amendment Act 2010, s 38 effective 1 January 2011.

[3] Applying by virtue of the Health Practitioner Regulation National Law (Tasmania) Act 2010, s 4.

[4] AWB Limited v Cole [2006] FCA 571 at [10].

[5] Grant v Downs [1976] HCA 63; (1976) 135 CLR 674 at 689, 694.

[6] Federal Commissioner of Taxation v Spotless Services Ltd [1996] HCA 34; (1996) 186 CLR 404 at 416.

[7] Commissioner of Australian Federal Police v Propend Finance Pty Ltd (1997) 188 CLR 501 at 508 per Brennan CJ.

[8] AWB Ltd v Cole [2006] FCA 571, 152 FCR 382 at [106] per Young J; AWB Ltd v Cole (No 5) [2006] FCA 1234; 155 FCR 30 at [44(5)] per Young J.

[9] AWB Ltd v Cole [2006] FCA 571, 152 FCR 382 at [106] per Young J; AWB Ltd v Cole (No 5) [2006] FCA 1234; 155 FCR 30 at [44(5)] per Young J.

[10] Esso at [172]; Carnell v Mann [1998] FCA 1566; (1998) 89 FCR 247, 253F per Higgins, Lehane and Weinberg JJ; Sparnon v Apand Pty Ltd (1996) 68 FCR 322, 138 ALR 735 at 740, citing Guinness Peat Properties Ltd v Fitzroy Robinson Partnership [1987] 1 WLR 1027.

[11] Esso (above) per Callinan J at [172].

[12] Plaintiff's reply submissions at pars 2.1 and 4.1.