Parr v Bavarian Steak House P/L [2000] QCA 429

[1] PINCUS JA: This is an appeal from the District Court which raises a question about the extent of the obligation to produce documents under Chapter 14 Part 2 of the Uniform Civil Procedure Rules. His Honour Judge Skoien granted an application for disclosure of two documents which would, apart from provision in the Rules to the contrary, be protected from disclosure by the doctrine of legal professional privilege. The judge's decision has been challenged by an application for leave to appeal; we have granted leave and heard the appeal.

[2] The appellant sued the respondent for damages for personal injuries said to have been sustained in the course of her employment with the respondent. During the course of the action the appellant's solicitors sent the respondent's solicitors a copy of a report by a psychologist, dealing with the effect of the appellant's injury. That report listed 10 matters on which it was said to be based, the ninth of which was "Statement of Plaintiff, undated", and the 10th, "Carter Capner Personal Injuries Damages Questionnaire". Subsequently, the psychologist said that he did not rely on that questionnaire in formulating his report.

[3] The learned primary judge apparently found it unnecessary to resolve the question whether the psychologist had or had not used the two documents I have mentioned, holding that the UCP Rules entitled the respondent to disclosure of them.

[4] To state the parties' positions broadly, the appellant, while not conceding that the relevant Rules, read literally, justify the primary judge's order, argued that if they have that effect they should be read down so as to require the reversal of the order; the argument was that the Rules are not phrased specifically enough to take the documents beyond the protection of legal professional privilege. The respondent conceded that the documents are prima facie privileged, but said that the Rules, properly construed, entitle the respondent to the order which was made. This order required the appellant to serve on the respondent:

"further statement of loss and damage disclosing, so far as they relate to the Plaintiff's injury, loss (including economic loss) or treatment, the documents referred to in the report of Mr Simons dated 30 December 1999".

Mr Simons is the psychologist to whom I have referred.

[5] The most relevant Rules are numbers 545, 547, 548 and 555; I do not set them out here. It will be noticed that r 555 creates an exemption from the obligation of disclosure imposed upon parties by other Rules in the relevant Part of the UCP Rules, which Part begins with r 544 and ends with r 558. The terms of r 555 tend to strengthen any conclusion, derived from other considerations, that other Rules in the Part (Chapter 14, Part 2) diminish the right to resist disclosure on the ground of legal professional privilege.

[6] The respondent relies upon r 547(3)(f), asserting that the two documents are in the possession of the appellant and that they are about one or more of the subjects mentioned in para (f); the respondent may also call in aid r 548(1)(e). I did not understand the appellant's counsel to deny that the terms of para (f), read literally, catch the documents in question; his argument was that they must be read in their context and, so read, could not be intended to apply to documents protected by legal professional privilege.

[7] The limitation the appellant would read into para (f) would add to it some such expression as: "other than documents protected by legal professional privilege", but if that limitation were read in then presumably even the specific categories of documents mentioned in paras (a), (b), (c) and (d) of r 548(1) would be excluded from the obligation of disclosure and would also be excluded from the obligation to supply copies, created by r 548(2). Ordinarily hospital and medical reports, for example, would in a case of this sort be privileged as documents obtained by the solicitor for the dominant purpose of use in the proceedings: see Esso Australia Resources Ltd v Commissioner of Taxation [1999] HCA 67, (1999) 74 ALJR 339.

[8] Faced with this difficulty, the appellant's counsel was inclined to concede that the types of documents specifically mentioned in r 548 must be disclosed in a plaintiff's statement of loss and damage, but not those in the more general category defined by para (f) of r 547(3). This contention cannot easily be reconciled with the opening words of r 548(1), which forbid limiting para (f) of r 547(3) by reference to the list of types of documents in r 548(1). One would think it unlikely that the intention was that the obligation created by inclusion of para (f) of r 547(3) should be subject to an unstated but severe exception inapplicable to paras (a) to (d) of r 548(1). And of course the same applies to para (e) of r 548(1).

[9] If the respondent's argument is accepted, then it must follow that any statement which comes into the possession of the solicitors for the plaintiff in a suit claiming damages for personal injuries or death, setting out evidence which either the plaintiff or anyone else might give about the issue of damages, would have to be disclosed to the other side and a copy given on request. The appellant's argument must rely upon the proposition that it is unlikely that those who made these Rules intended that to happen, without specifically saying so.

[10] So far as information supplied to the solicitor by the plaintiff is concerned, it would appear that much of the essential information would have to be included under one of the specific headings of r 547(3); see in particular para (c). If, as r 549(1) requires, the statement of loss and damage supplied is accurate, then there would not be a great deal, in the ordinary case, in the evidence about damages given by the plaintiff at trial which would be news to the defendant's lawyers. So the specific categories in r 547(3) make the statement of loss and damage one which should include the substance of the plaintiff's evidence about damages; to give literal effect to para (f) of r 547(3) would not, in many instances, greatly increase the extent of abrogation of the plaintiff's right to keep from the defendant instructions given to his or her solicitors.

[11] To return to what seems to me the essence of the appellant's difficulty, it is that there is no plausible way in which one could insert, in the more general parts of r 547 and r 548, namely para 547(3)(f) and para 548(1)(e), a limitation protecting the plaintiff's right to claim legal professional privilege. One might, for example, argue that para 548(1)(e) should be confined to documents of the same kind as those mentioned in the preceding paragraphs of s 548(1), by putting the documents in those preceding paragraphs into the class of papers received from third parties. But that would exclude a record kept by the plaintiff of the taxable income earned by him, which is a document clearly caught by subpara 548(1)(d)(iii).

[12] We were given authoritative statements about the reluctance of courts to hold that statutes override legal professional privilege. One would expect that overriding the right not to incriminate oneself would be at least as difficult; yet, as is illustrated by Police Service Board v Morris [1985] HCA 9; (1985) 156 CLR 397, that privilege is capable of being excluded by quite general words.

[13] If one looks at the matter more broadly, the spirit of these Rules about loss and damage in personal injury cases is that, as the primary judge put it, the cards must be on the table; and, I add, they must be face up. Counsel for the appellant argued that unfortunate consequences would ensue if the Rules in question were given the wide effect their terms, read literally, require. If that proves to be so, one would expect them to be altered, eventually; in saying that, I do not attempt to predict whether or not the result of application of the relevant Rules will be beneficial. In my opinion, they must be given their ordinary construction and they cannot sensibly be read down in such a way as to exclude from their ambit the two documents presently in issue.

UCP r 547(3)(f) and r 548(1)(e) are not to be read as excepting documents which would, in the absence of these Rules, be protected by legal professional privilege; nor is the obligation created by r 548(2)(a) subject to such an exception.

[15] We have already given leave to appeal. I would order that the appeal be dismissed and that the appellant pay the costs of the application for leave to appeal and the appeal, to be assessed.

[16] McPHERSON JA: I agree with the reasons of Pincus JA for dismissing this appeal with costs including the costs of the application for leave. The provisions of UCPR r 547(3)(f) are so specific as to leave no room for qualification by reference to the common law presumption, despite its strength, of privilege for communications passing from client to solicitor, or for the purpose of litigation. That is especially so having regard to the specific but limited operation allowed to such privilege by r 555. Whether the result will conduce to greater candour in the conduct of personal injury actions may be doubted; but that, I agree, is a matter for the Rules Committee.

[17] THOMAS JA: This appeal is concerned with the nature of the documents that are required to be supplied by plaintiffs in personal injury and fatal accident claims under Uniform Civil Procedure Rule r 547.

"(1) The plaintiff must serve on the defendant a written statement of loss and damage, signed by the plaintiff, within 27 days after the close of pleadings.

(2) The statement must be served before a request for trial date is filed.

(3) The statement must have the following information -

(a) details of any amount claimed for out of pocket expenses and documents in the possession or under the control of the plaintiff about the expenses;

(i) the name and address of each of the plaintiff's employers in the 3 years immediately before the injury and since the injury, the period of employment by each employer, the capacity in which the plaintiff was employed by each employer and the plaintiff's net earnings for each period of employment; and

(ii) if the plaintiff is self-employed - details of the plaintiff's net income in the 3 years immediately before the injury and since the injury; and

(iii) details of the amount the plaintiff claims (if any) for loss of income to the date of the statement; and

(iv) details of any disability resulting in loss of earning capacity and of the amount the plaintiff claims for future economic loss; and

(v) if the plaintiff is self-employed - additional details substantiating the plaintiff's claim for economic loss; and

(vi) details of the educational level reached by the plaintiff, including any trade or professional qualifications held;

(c) details of the pain and suffering experienced by the plaintiff and the loss of amenities caused by the injuries (including the physical, social and recreational consequences of the injuries sustained);

(e) the names and addresses of all hospitals, doctors and experts who have examined the plaintiff or who have given reports on the plaintiff's injury, loss (including economic loss) or treatment;

(f) the documents in the possession or under the control of the plaintiff about the plaintiff's injury, loss (including economic loss) or treatment."

[19] The following rule (r 548) deals with the documents that must be identified. It obliges the plaintiff to give the defendant a copy of any such document if the defendant asks for it. Sub-rule (3) of that rule provides:

"If the plaintiff intends to rely at the trial on evidence of the plaintiff's injury, loss (including economic loss) or treatment (including future treatment) not in a report that, if it were in a report, would be required to be identified under subrule (1), the plaintiff must, before the request for trial date is filed, serve on the defendant the evidence in the form of a report, or a proof of the evidence."

[20] The appeal is brought on behalf of a plaintiff against whom an order was made requiring the disclosure of two documents that had been sent by her solicitor to a psychologist for the purpose of providing him with information potentially relevant to his assessment. These were a statement made by the plaintiff to her solicitor and a questionnaire which presumably contained information supplied by the plaintiff to her solicitor for the purpose of the litigation. The defendant became aware of their existence because they were mentioned in the psychologist's report.

[21] The principal submission of counsel for the appellant might fairly though bluntly be stated as "Surely it can't have been intended that plaintiffs' statements have to be disclosed". However in my view the words used in the rules are wide enough to catch such statements. It is difficult to find a satisfactory basis for reading down the words of the rule. To the contrary, a purpose may be discerned of requiring the full and frank disclosure of information relevant to claims of these kinds, with a view to the facilitation of early settlement and the prevention of ambush. A similar obligation to that cast upon a plaintiff by rule 548(3) is also cast upon a defendant by rule 551(3). In any instance in which a plaintiff (or as the case may be a defendant) fails to comply with that obligation that party may be deprived of the opportunity of calling or tendering such evidence unless the court for special reason gives leave.[1]

[22] If the court is to restrict the meaning of these rules, there is a difficulty in drawing the line. The rules have in recent years made considerable inroads into the area of legal professional privilege. In 1994 order 35 rule 5(2) provided that a document consisting of a statement or report of an expert is not privileged from disclosure. The validity of that rule was upheld in Interchase Corporation Limited (In Liq) v Grosvenor Hill (Queensland) Pty Ltd (No 1). [2] It has now re-appeared as r 212 (UCPR) and the consequences of non-disclosure of such statements or reports are stated in r 423 (UCPR). It is unsurprising that in relation to personal injury and fatal accident claims a more specific and far reaching system has been devised requiring early exposure of the claimant's case than in other cases.

[23] It is difficult to see why the disclosure obligations stop at medical reports and statements and reports of persons other than the plaintiff. Rules 547(3)(f) and 548(1)(e) are extremely wide. It seems to me that rule 555 marks out the point at which legal professional privilege is recognised as subsisting in relation to documents of the type described in rules 547 and 548. It provides "This part does not require a party to disclose the existence, or nature, of legal advice given to the party".

[24] The rules in part 2 of chapter 14 of the UCPR (ie rules 544-558) operate in tandem with the Disclosure Rules in chapter 7, and impose somewhat more rigorous requirements upon claimants in the stated area of personal injury and fatal accident claims. They apply to documents relating to the issue of damages, not liability. The rules in question derive from the previous RSC order 39 rules 29A to 29I which, with only a few amendments, have been in force since 1988.[3] Until this case however it has not been suggested that relevant statements of plaintiffs themselves might be covered. On examination of the rule I think they are.

[25] I have had the benefit of reading the proposed reasons of Pincus JA, and agree with his Honour's analysis of the rules in question. I agree that there may be both positive and negative consequences of such rules. The negative aspects include loss of trust between solicitor and client. However on the proper construction of the rules in their present form that is the consequence.

[26] The appeal should be dismissed, and the appellant should pay the costs of the application for leave to appeal and the appeal, to be assessed.

[1] Rules 548(4) and 551(4); such evidence may also be received by consent or if it is tendered in cross-examination.

[2] [1999] 1 Qd R 141, 155-156, 157-158.

[3] Order in Council of 1 December 1988, QGG 3 December 1988, Vol 289 pp 1587-1590.