Maria Saravinovska v Krste

EX TEMPORE Judgment 1In these proceedings I have heard evidence that in 2001 the plaintiff in her proceedings (to whom I shall refer without disrespect as Maria) suffered a bus accident which resulted in injuries, in particular, to her foot and back. Those injuries subsequently became the subject of a third party compensation claim. 2The defendant in Maria's proceedings is her father-in-law (to whom I shall refer without disrespect as Chris). Chris wishes to tender a document (to which I shall refer as the "Communication") which is signed by Maria and addressed to the solicitor who was acting on her behalf in relation to the third party claim. The Communication sets out Maria's response to a medical report obtained in December 2004 as part of an assessment under the NSW motor accidents compensation scheme. The Communication sets out Maria's account of what she says occurred during the examination that resulted in the medical report. 3Objection is taken on behalf of Maria to the tender of the Communication on the ground of client legal privilege, in particular that the document falls within s 118 of the Evidence Act 1995 (NSW) (the "Act"). There is no dispute between the parties that the Communication came into the possession of Chris' legal advisers as part of an answer to a notice to produce which they issued to Maria. 4Some parts of the present argument can be disposed of in short order. The parties accept that the inclusion of the Communication in the documents produced in answer to the notice to produce was as a result of inadvertence. It is clear from the terms of the notice that the Communication does not answer any of the categories of documents for which the notice calls. Furthermore, Chris accepted that Maria's solicitor did not intend to disclose the Communication as part of the answer which he prepared to the notice. 5The Court has no difficulty in finding that the Communication is privileged by reason of s 118 of the Act. It is apparent from its terms that it is a confidential communication made between Maria and her lawyer for the dominant purpose of the lawyer providing legal advice to Maria. 6It was submitted on behalf of Chris that privilege did not attach because the document was not just Maria's but included input from and recorded the presence of Maria's husband, George, at the time of the interview with the doctor and George's involvement in the preparation of the Communication itself. Those same circumstances were also relied upon in support of a submission that George's presence deprived the Communication of the necessary quality of confidentiality. I reject both of those submissions. It is clear that George's involvement was in the nature of a support person or an agent or next friend and I have no doubt that he was within the requisite circle of confidentiality. His role in assisting in the preparation of the document does not detract from the fact that the Communication is that of Maria (being signed by her) to her legal adviser. 7The more difficult question, having determined that the Communication is privileged, is whether that privilege has been lost. Chris did not rely on the inadvertent disclosure as the circumstance which it was said gave rise to the loss of privilege. Rather, Chris submitted that there had been what, at common law, was referred to as an issue waiver because of the way in which Maria had conducted her case. Understood in those terms, Chris sought to invoke s 122(2) of the Act: (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. 8It is to be noted that s 122(2) is itself subject to s 122(5). There is nothing in s 122(5) which would detract from the application of s 122(2) if I am satisfied that s 122(2) otherwise applies to the facts and circumstances of this case. 9The question for determination therefore becomes whether Maria "has acted in a way that is inconsistent with [Maria] objecting to the adducing of the evidence because it would result in a disclosure of" the Communication. The evidence which the Communication would disclose is what passed between her and the doctor. That would be proven by the tender of her account of the consultation as evidenced by the Communication. 10In considering whether there would be a relevant inconsistency, I respectfully adopt the formulation of the question that has to be asked and answered set out by the Full Court of the Federal Court in Commissioner of Taxation v Rio Tinto Ltd [2006] FCAFC 86; (2006) 151 FCR 341 at [68] ("Rio Tinto") as being whether the party has: ... made an assertion as part of his case that puts the contents of the privileged scheduled documents in issue, or necessarily lays them open to scrutiny, with the consequence that an inconsistency arises between the making of the assertion and the maintenance of the privilege. To answer this, the relevant assertions must be considered in their proper context. 11It was submitted for Chris that there were two ways in which Maria had conducted the case that would render it inconsistent for her to maintain the privilege in the Communication. The first way was one of the few matters about which the parties in this case appear to agree, namely that credit is at the heart of resolving the dispute between them. My attention was drawn to evidence elicited from Maria in her evidenceinchief to the effect that she had exaggerated her symptoms to the various doctors who had examined her in connection with her third party claim. It was submitted that having put her exaggeration in issue, to claim privilege in the Communication would be inconsistent with that assertion because the Communication could cast further light upon Maria's conduct and credit. 12The second way in which it was submitted that it would be inconsistent to claim privilege in relation to the Communication was that Maria had put in issue her capacity to provide support and personal care, and other services, to Chris and his late wife, as part of her claim under the Property (Relationships) Act 1984 (NSW). Statements made by her to doctors, whether or not by her own admission exaggerated, would be relevant to her assertion that she was at all times able to perform all the services which she said she did. 13It was submitted for Maria that having made the concession against her interest that she had exaggerated to the doctors, that was not an assertion of the kind which would engage the principle set out by the Full Federal Court in Rio Tinto. Such an admission against interest was really the end of the matter. In circumstances where it was plain that the Communication did not falsify her assertion of exaggeration it could not be said to be inconsistent for her to maintain privilege in the document. 14Returning to the language of s 122(2), it is necessary to identify how it is said that Maria "has acted" before one can answer the question of whether she has acted in a way which is inconsistent with maintaining the privilege. The Court finds that in these proceedings her acts for the purposes of s 122(2) include both making an assertion to the effect that she exaggerated to various examining doctors and also asserting that at various times she was able to perform a large number of personal and domestic services. I do not accept that because the first of those assertions is one primarily related to credit means it is in some way to be treated as less likely to engage s 122(2) than might be the case in relation to an assertion that went to a fact which had to be proven for the purposes of making out a claim. Particularly in a case such as the present where credit is undoubtedly at the heart of the resolution of the proceedings, if a party makes an assertion, even against interest, that is relevant to the question of their credit, then it is possible for that to constitute an act within the meaning of s 122(2) that would render the assertion of a claim for privilege inconsistent with that act. 15Turning to the exposition of the test for inconsistency set out in Rio Tinto, I remind myself that such statements are not be given the force of statutory pronouncements. The task of the Court is to apply the legislation and not to seek to parse particular judicial analyses of how the legislation is to be applied. Nevertheless, such an authoritative judicial exposition assists in the application of a particular statutory formula to the facts and circumstances of the case before the Court. The examples given by the Full Court are helpful in analysing or offering examples of circumstances where the relevant inconsistency for the purposes of the Act may be found. The first of those is where there has been "an assertion as part of [a party's] case that puts the contents of the privileged scheduled documents in issue". That is not the present case. There has been no assertion by Maria that puts the contents of the particular communication into issue in and of itself. For example, what she told her solicitors in relation to the encounter with the doctor is not directly relevant in the sense of being part of her cause of action. 16The second example offered by the Full Court is where the assertion "necessarily lays [the privileged documents] open to scrutiny". Taking that as an example of a circumstance where it would be inconsistent to maintain the privilege, I am of the view that both the assertion that she has made about her exaggeration to treating doctors and the case which she wishes to mount in relation to her ability to provide a great deal of domestic support and personal care, to adopt the language of the Full Court, necessarily lays open to scrutiny the account that she gave to her solicitor of what passed between her and the examining doctor. 17The result is that while the Communication is properly the subject of client legal privilege, s 118 of the Evidence Act does not prevent the adducing of the evidence constituted by the Communication because the Court is satisfied for the purposes of s 122(2) that Maria has acted in a way which would make it inconsistent for her to maintain the claim for privilege in relation to the Communication. 18Accordingly, at such time as Senior Counsel for Chris finds it expedient to tender it, the Court will admit the Communication into evidence subject to any further submissions that Maria may wish to make as to whether there is any other basis upon which it should be excluded.