Pomare v Hogan

Introduction

1. By notice of motion filed on 23 April 2019, Angus Whyte, the second defendant (the applicant), sought access to documents comprising legal advice given by Maurice Blackburn Lawyers, the solicitors for Kereopa Pomare (the plaintiff). The earliest of the documents sought is dated 23 September 2014 and the latest is dated 13 March 2017. After hearing argument on the question on 29 April 2019, I ordered the plaintiff to disclose the documents listed in the notice of motion and indicated that I would provide reasons for my order later. What follows are my reasons for the order.

Relevant facts

1. In order to appreciate the context in which the application is brought it is necessary to summarise the relevant facts.
2. On 18 April 2012 there was a collision on Silver City Highway between a Kenworth prime mover driven by Michael Hogan (the first defendant) and a Black Angus bull owned by the applicant. The plaintiff was asleep in the rear of the prime mover and suffered injuries as a consequence of the accident.
3. Well within the limitation period, in about 2013, the plaintiff consulted solicitors for the purposes of obtaining advice about his legal rights, including whether he could bring a claim for damages.
4. On 11 April 2016 the plaintiff's solicitors filed a statement of claim against the first defendant pursuant to s 7C of the Motor Accidents Compensation Act 1999 (NSW) (the Act). The plaintiff alleged in the statement of claim that the accident was a "blameless accident" within the meaning of the Act and did not allege fault on the part of the first defendant.
5. On 19 December 2016 the first defendant (who was, at that stage, the only defendant) filed a defence in which he denied that the accident was a blameless accident. The basis of the denial was that the accident was caused by the applicant, who owned the bull, for not keeping the bull behind a secure fence.
6. On 15 May 2017 the plaintiff filed an amended statement of claim, joining the applicant to the proceedings.
7. On 11 May 2018 the applicant filed a defence in which he pleaded a defence under the Limitation Act 1969 (NSW).

The separate question

1. The plaintiff filed a notice of motion for an order that the limitation question be determined as a separate question. On 5 March 2019 I ordered that this question be determined separately. The parties have since agreed on the formulation of the question as follows: "Did the plaintiff know or ought he to have known that his injuries were caused by the fault of relevant defendant by the relevant date?"
2. It was common ground that the relevant date was 15 May 2014.
3. Sections 50C and 50D of the Limitation Act relevantly provide: "50C Limitation period for personal injury actions (1) An action on a cause of action to which this Division applies is not maintainable if brought after the expiration of a limitation period of whichever of the following periods is the first to expire: (a) the 3 year post discoverability limitation period, which is the period of 3 years running from and including the date on which the cause of action is discoverable by the plaintiff . . . 50D Date cause of action is discoverable (1) For the purposes of this Division, a cause of action is discoverable by a person on the first date that the person knows or ought to know of each of the following facts: (a) the fact that the injury or death concerned has occurred, (b) the fact that the injury or death was caused by the fault of the defendant, (c) in the case of injury, the fact that the injury was sufficiently serious to justify the bringing of an action on the cause of action. (2) A person ought to know of a fact at a particular time if the fact would have been ascertained by the person had the person taken all reasonable steps before that time to ascertain the fact. (3) In determining what a person knows or ought to have known, a court may have regard to the conduct and statements, oral or in writing, of the person. . . ."

The parties' submissions

1. Mr Cavanagh SC, who appeared with Mr Bowen on behalf of the applicant, submitted that the plaintiff's maintenance of legal professional privilege created a situation whereby his state of mind could not readily be ascertained by the applicant. He submitted that the plaintiff had waived legal privilege on certain documents but maintained it over others and that this tended to cause unfairness to the applicant who would be prevented from ascertaining exactly what the plaintiff had been told or advised at various points in time. Mr Cavanagh relied on the circumstances that the plaintiff contended that the separate question should be answered in the negative although neither the plaintiff nor his solicitor had filed an affidavit on the separate question and no explanation had been forthcoming as to why privilege had been maintained on some documents and waived on others.
2. Mr Cavanagh submitted that the plaintiff's case on the separate question was that his knowledge did not extend to the matters referred to in ss 50C and 50D in the period of three years before the filing of the amended statement of claim. He relied on the implied waiver of privilege on the grounds of fairness which was recognised in Attorney General (NT) v Maurice (1986) 161 CLR 475 at 487-489 (Mason and Brennan JJ); [1986] HCA 80 and addressed in Goldberg v Ng (1995) 185 CLR 83; [1995] HCA 39 and Mann v Carnell (1999) 201 CLR 1; [1999] HCA 66 at 13 [29].
3. Mr Stone SC, who appeared with Ms Compton on behalf of the plaintiff, offered to provide all of the privileged documents sought except for four documents, on condition that provision of those documents would not constitute a waiver of privilege on the remaining four. Mr Cavanagh rejected the offer. The four documents in issue (as they appear in the list contained in the notice of motion) were as follows: "(o) Internal file note reviewing District Court subpoenaed documents dated 13 January 2013; (p) Advice of Andrew Stone SC dated 7 February 2017; (q) Memo from Andrew Stone SC dated 13 March 2017; (r) Advice of Andrew Stone SC enclosing draft Amended Statement of Claim dated 28 March 2017".
4. Mr Stone submitted that, in circumstances where the relevant period was the period up to 15 May 2014 (that being three years before the filing of the amended statement of claim), it could not reasonably be concluded that documents produced, in the case of (o), (q) and (r), almost three years afterwards, could bear on the plaintiff's state of mind during the relevant period. He argued, in effect, that the applicant's contention that there was an implied waiver of privilege was merely a "fishing expedition" into the forensic reasons for the amendment which the court should not permit.

Consideration

1. While three of the four documents in issue post-date the relevant date by almost three years, they are potentially relevant to the plaintiff's state of mind up to 15 May 2014 since they might tend to reveal why the applicant was joined and, in doing so, whether there was any reason for the joinder which was not known to the plaintiff before 15 May 2014.
2. I accept Mr Cavanagh's submission that the maintenance of privilege would be unfair in circumstances where the plaintiff has not confirmed that his state of mind was unaffected by legal advice. It is reasonable to infer that his state of mind, or knowledge at a particular time, was affected and informed by the legal advice he obtained during the relevant period and what he was told by his legal advisers whom he had retained more than a year before the relevant date. In Council of the New South Wales Bar Association v Archer (2008) 72 NSWLR 236; [2008] NSWCA 164, Hodgson JA (Campbell JA agreeing) said, obiter, at [48]: "What would involve inconsistency and relevant unfairnessis the making of express or implied assertions about the content of theprivileged communications, while at the same time seeking to maintain theprivilege. In this respect, it may be sufficient that the client is makingassertions about the client's state of mind, in circumstances where there wereconfidential communications likely to have affected that state of mind."
3. Handley AJA said at [72]: "The current test established by Mann v Carnell (1999) 201 CLR 1 at 13 [29] is that of inconsistency. Where the client raises an issue such as undue influence, election, or seeks an extension of the limitation period, the client may be making assertions about his or her state of mind based on legal advice. In such a situation as that described by Hodgson JA in par [48], I am inclined to think, in agreement with Hodgson JA, that the raising of the issue will waive the privilege without more."
4. The principal issue in the determination of the separate question is the plaintiff's state of mind in the period up to 15 May 2014. For the reasons given above, I am persuaded that there has been an implied waiver of privilege over the documents listed in the applicant's notice of motion and that disclosure of those documents is required as a matter of fairness to the applicant.

Order

1. At the conclusion of the hearing of the argument on privilege on 29 April 2019, I made the following order: 1. Order the plaintiff to grant to the second defendant access to the documents listed in prayer 1 of the notice of motion filed on 23 April 2019.
2. As the parties accepted that costs ought follow the event, I also order that the plaintiff pay the second defendant's costs of the notice of motion.

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