RICHARDS v. ANKUR KADIAN by his Tutor JANAK KADIAN & ORS. [2005] NSWCA 328 - NSWCA 2005 case summary — Zoe

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RICHARDS v. ANKUR KADIAN by his Tutor JANAK KADIAN & ORS. [2005] NSWCA 328

[2005] NSWCA 328

Court of Appeal (NSW)|2005-09-23|Before: Beazley JA, Hodgson JA, McClelland J, Solomon AJ

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Source facts

Court

Court of Appeal (NSW)

Decision date

2005-09-23

Before

Beazley JA, Hodgson JA, McClelland J, Solomon AJ

Source

Original judgment source is linked above.

Judgment (44 paragraphs)

[1]

Introduction 1 Ankur Kadian (Ankur) was born with a congenital heart disease which was not diagnosed until he was 9 months old. It is alleged that the delay in diagnosis caused him irreversible damage due to the onset of pulmonary hypertension. Proceedings have been commenced on behalf of Ankur against his paediatrician (the claimant) who it is alleged was negligent in failing to diagnose the heart disease. Proceedings have also been commenced against the Auburn Hospital where Ankur was born. Ankur's parents have also brought proceedings against the claimant and the hospital claiming that the negligent treatment by each defendant caused them nervous shock. 2 Ankur's congenital condition was diagnosed when at the age of 9 months, the claimant referred him to Dr. Gary Sholler, paediatric cardiologist. Ankur has remained under Dr. Sholler's care during the ensuing 7 years. Ankur and his parents commenced proceedings in the New South Wales Supreme Court on 29 March 2001. That Statement of Claim has been amended in respects that are not material to the matter before the Court. The claimant has filed his Notice of Grounds of Defence. The matter otherwise remains in the pre-trial phase. 3 Ankur also has a defective right kidney which was diagnosed before he was born. He has been under the treatment of Dr. Deborah Lewis, paediatric nephrologist, in respect of that condition. 4 As part of his preparation of his defence, the claimant wishes to interview Dr. Sholler and Dr. Lewis. This has been resisted by the opponents. It was due to this resistance that the claimant filed a Notice of Motion in the Common Law Division of the Supreme Court on 6 September 2002. That Notice of Motion has been amended so that the final motion before the Court was a Further Amended Notice of Motion filed on 11 March 2004 in which the claimant sought the following Declaration and Order: "1. A declaration that in commencing these proceedings the first plaintiff has waived his right to confidentiality which arises from the doctor/patient relations between the first plaintiff and Dr Gary Sholler and Dr. Deborah Lewis. 2. An order that the proceedings be stayed until the plaintiff provides a signed written authority permitting Dr Gary Sholler and Dr Deborah Lewis to discuss their management and treatment of the first plaintiff with legal representatives of the first defendant." 5 The claimant also sought, either additionally or alternatively, that the opponents file and serve their witness statements at an early date, including statements from Dr. Sholler and Dr. Lewis (if any). 6 The Notice of Motion was heard and determined by Campbell J who delivered Judgment on 22 June 2004: Kadian v. Richards [2004] NSWSC 382; Kadian v. Richards (by his tutor Kadian) & Ors. v. Richards & Anor (2004) 61 NSWLR 22. Campbell J dismissed the application. 7 As his Honour's judgment was in respect of an interlocutory matter, the leave of this Court is required for the claimant to appeal. The matter has been heard by this Court on the basis that the Summons for Leave to Appeal and the Appeal were heard and are to be determined concurrently.

[3]

Request to interview Dr Sholler 11 As I have indicated, the proceedings were commenced on 29 March 2001 and remain in their pre-trial phase. A subpoena has been issued by the claimant for the production of the clinical records of Dr. Sholler and they have been produced and inspected by both parties. 12 On 21 March 2002, the claimant's solicitors, Blake Dawson Waldron (BDW) wrote to the opponents' solicitors, McLaughlin & Riordan (M&R) requesting that Ankur "expressly waive the claim to doctor/patient confidentiality (although, of course, retaining any claim to legal professional privilege that is appropriate)". The purpose of the request was to enable BWD to speak to Dr. Sholler. The reason they gave reason for wishing to do so was "to understand the cause of [Ankur's] pulmonary hypertension" and "to discuss with Dr. Sholler issues relevant to the nature and extent of [Ankur's] congenital heart defects and the relationship between those and his pulmonary hypertension." (J.7). The plaintiff refused to waive confidentiality, thus giving rise to the Notice of Motion. 13 Following the filing of the Notice of Motion, correspondence ensued between the solicitors. The correspondence is set out in the Reasons for Judgment of Campbell J at [8] to [10]. I set out that correspondence as reproduced by his Honour: "8 On 16 October 2002 M&R wrote to BDW saying: 'With respect to the Order sought, "permitting Dr Gary Sholler to discuss his management and treatment of the first [opponent] with legal representatives of the first defendant", please specify whether the [claimant] proposes such discussions by way of conference, or by way of written report in relation to specific questions put by the [claimant]. In an attempt to resolve this dispute before 1st November, please provide us with a list of questions which the [claimant] proposes to have Dr Sholler address, so that we can consider whether to advise the [opponents] to authorise Dr Sholler to address such questions in writing. We suggest that the said list of questions be provided to us by way of a proposed letter of instruction addressed to Dr Sholler, requesting a formal report. If the [claimant] will not agree to provide us with such a document, necessitating argument on the Notice of Motion on 1st November, we will tender this letter in any subsequent application for costs.' 9 BDW replied on 24 October 2002 saying: '1. We propose to have a conference with Dr Gary Sholler; 2. We do not propose to prepare a specific list of questions. It is not practicable to do so as the answers to set questions may necessitate other areas of inquiry; 3. We are prepared to provide you with a list of issues in paragraph 4 below which we intend to discuss with Dr Sholler. We note, however, for the reasons set out in paragraph 2 above, it may be necessary to proceed beyond the listed issues; 4. We intend to discuss the following matters with Dr Sholler: (a) Dr Sholler's observations of Ankur, including but not limited to signs and symptoms of pulmonary vascular disease, during consultations; (b) Findings on examination of Ankur; (c) The history of Ankur's illness, including the onset of signs and symptoms, reported to Dr Sholler by the Kadians; (d) Provisional and preliminary diagnosis of Ankur's condition made by Dr Sholler; (e) The nature of Ankur's pulmonary vascular disease; (f) Development of Ankur's pulmonary vascular disease, in particular but not limited to the likely timing of the establishment of Ankur's pulmonary vascular disease; (g) The likelihood of detection of the pulmonary vascular disease at particular times during the first 9 months of Ankur's life; (h) On what occasions, if any, did Dr Sholler detect a heart murmur and the difficulty or otherwise involved in detecting the heart murmur; (i) Dr Sholler's comment in a treatment report regarding Ankur that "it may be that pulmonary resistance has remained relatively high from birth"; (j) Whether Dr Sholler was informed that a heart murmur was detected by Dr Bolisetty; (k) Details of Ankur's underlying venous sclerotic process and its impact on pharmacological and surgical treatment of pulmonary vascular disease; (l) The impact of the timing of diagnosis on outcome; and (m) Timing of surgery and impact on outcome.' 10 M&R wrote to BDW on 31 October 2002 saying: 'We are not prepared to consent to your client obtaining a written report in lieu of a conference with Dr Sholler, based upon the issues you have outlined, as the vast majority of these are matter which any medico-legal expert would be able to address.' 14 The claimant has retained his own medico/legal experts who have provided reports to BWD. I will deal with those reports more fully when dealing with the question of the stay.

[4]

15 In his judgment, Campbell J undertook an extensive survey and analysis of the law in relation to the issue of patient/doctor confidentiality. Neither party, on the appeal, sought to extend that survey of the law. However, senior counsel for each party engaged in a re-analysis of the cases reviewed by his Honour such that it is necessary to undertake the same survey as that undertaken by his Honour. This is not a critical comment. Both senior counsel argued the matter extremely ably and the matter is one of considerable importance so that, in order to do justice to the argument, it is necessary for this Court to itself engage in an analysis of the authorities. In doing so, it is important to keep at the forefront of the consideration or, as senior counsel for the claimant put it, to recognise the underlying thread to each of the issues which arise in this matter, namely, that a right of confidentiality does not have the same legal status as does a right of privilege: D v. The National Society for the Prevention of Cruelty to Children [1978] AC 171 at 218 per Diplock LJ. The Confidentiality issue 16 The first issue on the appeal raises the question whether a party can insist upon a right of confidentiality arising from a relationship with a third party when the first party has commenced proceedings against another in which confidential information in the possession of third party is relevant to the matters in issue in the proceedings. The claimant asserts that any such confidence is void as against public policy. 17 The commencing proposition in the claimant's argument on this issue was that "any contract having a tendency, howsoever slight, to adversely affect the administration of justice, is void". Support for this proposition, it was said, was to be found in A v. Hayden (1984) 156 CLR 532. If that proposition is made out, it would follow on the claimant's argument that the opponents would not be entitled to prevent the claimant's legal representatives from speaking to Dr Sholler and Dr Lewis and obtaining from them in the pre-trial phase such facts and opinions that they might be able to provide in relation to Ankur's condition, including its manifestation, diagnosis and treatment.

[5]

18 A v. Hayden involved the notoriously ill-fated security training exercise conducted by the Australian Secret Intelligence Service (ASIS) at the Melbourne Sheraton Hotel during which a number of ASIS officers allegedly committed breaches of the criminal law. The Chief Commissioner of Police for Victoria sought to identify the ASIS officers in order to investigate whether crimes were in fact committed, with a view to the arrest and charging of the offenders. The ASIS officers sought injunctions seeking to restrain the Commonwealth from disclosing their names to the Commissioner of Police on the basis that their contracts with the Commonwealth provided that the identity of each ASIS officer would be kept confidential. 19 The Court held by majority, Gibbs CJ dissenting, that the Commonwealth was not bound by any confidentiality principle or requirement which would constrain it from revealing the identity of the ASIS officers. It was held that although by revealing the names, the Commonwealth would be acting contrary to a provision of the contracts with the respective officers, the confidentiality provision was, in the circumstances, unenforceable. 20 It will be necessary to deal with the judgments in A v. Hayden in some detail. However, as each of the judgments in that case refer extensively to the earlier authorities on the question of confidentiality, it is a more convenient course to refer independently to the principal authorities. As one of the issues in this case is the extent to which the principle in A v. Hayden applies to civil proceedings, it is necessary to understand the evolution of the principles relating to the protection of confidential information, particularly insofar as civil proceedings are involved. The relevant authorities are: Egerton v. Brownlow (1853) 4 HL Cas 1; 10 ER 359; Weld-Blundell v. Stephens [1919] 1 KB 520; Howard v. Odhams Press Limited [1938] 1 KB 1; Initial Services v. Putterill [1967] 3 All ER 145; British Steel Corporation v. Granada Television Ltd. [1981] AC 1096.

[7]

He explained, referring to Lord Hardwicke in The Earl of Chesterfield v. Janssen (1751) 28 ER 82, at 100-101[156] what he meant by " the public good " or " public policy ": "… political arguments, in the fullest sense of the word, as they concern the government of a nation, must be, and always have been, of great weight in the consideration of the Court; and though there may be no dolus malus in contracts as to other persons, yet if the rest of mankind are concerned as well as the parties, it may properly be said that it regards the public utility ." (emphasis added) 23 His Lordship concluded in respect of the devise under consideration: "…a proviso or condition which has a tendency [to fetter the free agency of the party in the performance of the important duties incident to his position as a member of the peerage], must be at variance with the public good and general welfare. It is admitted, that any contract or engagement having a tendency, however slight, to affect the administration of justice is illegal and void." (emphases added) 24 For present purposes, what is relevant about this decision is that it was a civil case dealing with a particular devise in a will. However, the condition of the devise relating to the acquisition of the peerage meant that questions of public policy were involved. Lord Lyndhurst, in concluding that the devise was void stated that the law had always considered certain covenants to be void. Those contrary to the public good were an example as were covenants contrary to law. This latter proposition, of course, must now be read subject to modern authority: see Yango Pastoral Co. Pty. Limited v. First Chicago Australia Ltd. (1978) 139 CLR 410; Fitzgerald v. F.J. Leonhardt Pty. Ltd. (1997) 189 CLR 215. Weld-Blundell v. Stephens 25 Weld-Blundell v. Stephens was also a civil suit. The plaintiff had engaged the defendant to carry out a financial investigation into the affairs of a company that was seeking further advances from the plaintiff. In the letter of instruction to the defendant the plaintiff made a number of libellous statements about 2 persons connected with the company. The letter of instruction was negligently left at the company's office, and was passed on to those who had been libelled. Those persons then successfully sued the plaintiff. The plaintiff subsequently brought an action against the defendant for breach of an implied obligation to keep secret the letter of instruction. 26 The Court of Appeal upheld the plaintiff's claim. Warrington LJ said (at 533) that "if the document in question revealed a contemplated crime, the commission of which its disclosure might prevent, I think there would be a duty owing to the public which would override any private obligation". However, his Lordship declined to find that the letter was a criminal libel. 27 His Lordship then considered whether an obligation or covenant not to disclose information that was libellous or not to disclose a civil wrong was invalid. He decided that, in the case at hand, the obligation of confidence was not invalid. He distinguished the earlier decision of Gartside v Outram (1856) 26 L.J. Ch 113 where a servant, notwithstanding an obligation of confidentiality, had disclosed a systemic fraud that his employers had pursued in the course of their business and which affected a large number of people. In the case at hand, however, the breach of confidence related to a single document where there was no wider or public interest in its disclosure. The only effect of its disclosure was to arm the persons libelled with the evidence with which to bring their claim. 28 Warrington LJ was also of the opinion that the true basis of the decision in Gartside v Outram was that the Court there had refused to exercise its equitable jurisdiction to restrain the breach of confidence in circumstances where the employer, the party seeking to enforce the confidence, did not come to the court with 'clean hands'. 29 Bankes LJ observed (at 528) that contracts not to disclose a libel were frequently made. References given by trade societies to customers relating to the credit of persons with whom customers had business provided an example of such "habitually made" contracts. His Lordship pointed out that there was no suggestion that the confidentiality that was promised in relation to the giving of such information was invalid or otherwise void. 30 There was no suggestion in the judgments in Weld-Blundell v. Stephens that the principle that a confidence will not be protected when it is against the public interest to do so was confined to criminal cases. However, it is clear that their Lordships were of the opinion that there had to be some public aspect involved before a court would intervene so as to prevent a party relying upon a confidential obligation.

[8]

Howard v. Odhams Press Limited 31 In Howard v. Odhams Press Limited, the English Court of Appeal was concerned with the investigation and possible prosecution of a series of crimes involving fraudulent practices relating to cross0word competitions conducted by a number of newspapers. In an agreement between an employee and his employer newspaper, the newspaper agreed not to divulge the contents of a statement made by the employee in which he admitted that he had engaged in the fraudulent practices and also implicated other employees in the fraud, gave information that the same fraudulent activity had been carried on by employees at a previous newspaper at which he had worked, and stated that the fraud was continuing at both newspapers. 32 The newspaper subsequently became dissatisfied with the employee's conduct and divulged the information to the trade union to which he belonged. The union disqualified the employee from membership, presumably because he had implicated fellow union members. Given the trade practices at the time it was necessary for newspaper employees to be union members. As a result of being disqualified by the union, the employee lost his job. The employee brought an action against the newspaper for breach of the agreement not to disclose his name. The newspaper alleged the agreement was invalid. 33 Slesser LJ accepted Warrington LJ's statement in Weld-Blundell v Stephens, set out at [26] above, and observed (at 20) that perversion of the administration of justice can occur in different ways. He noted the following examples: "the concealment or procuring the concealing of a felony"; "an agreement not to prosecute or to stifle a prosecution"; "agreements between a prosecutor and persons indicted, that a proposed witness would not give evidence at a trial for reward"; "an agreement to compromise pending legal proceedings if the offence be of a public nature" (emphasis added). 34 Slesser LJ also noted (at 31-32) that the principle of treating confidential agreements as void had not been confined to cases where the confidentiality related to strictly legal proceedings but extended to cases where the covenant in question had the tendency to affect the administration of justice: see Egerton v. Brownlow at 163. His Lordship also referred to Lound v Grimwade (1888) 39 Ch. D. 605 where Stirling LJ said: "agreements tending to affect the course of legal proceedings are illegal, even although those proceedings may not be strictly criminal in their nature" (emphasis added). His Lordship then said at 32: "…I think, on the facts of this case, it is impossible to say that any public policy of prevention of crime countervailing the prima facie illegality of the contract can be established, and I do not view the agreement as one to take precautions to prevent a man committing a crime … but rather as an agreement to prevent the public knowing that crimes had been, or would be, committed."

[13]

41 British Steel Corp v. Granada Television Ltd involved an appeal from an order of the Court of Appeal that required Granada Television to disclose to the solicitors of British Steel the names of all persons responsible for supplying to Granada Television, without the consent of British Steel, British Steel's confidential documents. The factual situation behind the matter related to a national television broadcast covering a steel strike that had commenced in January 1980 and which was a matter of governmental concern. The television broadcast quoted from a number of secret or confidential documents which had come into the possession of Granada Television from an employee or officer of British Steel. 42 Granada Television had given a promise to the provider of the documents that his identity would not be revealed. British Steel brought an action against Granada Television seeking an order for the delivery up of the documents. Granada Television delivered up the documents. However, the documents had been tampered with, apparently in an attempt to cut off anything that might have led to the identification of the person who had provided the documents to Granada Television. British steel then sought an order that Granada Television disclose the names of the persons who had supplied the documents. At first instance, Sir Robert Megarry V.C. made the order sought. Granada Television's appeal was dismissed. 43 A further appeal to the House of Lords was dismissed. Lord Wilberforce, after referring to Initial Services v Putterill said (at 1169) that it was recognised that, in cases of misconduct a confidentiality clause did not operate and publication could legitimately be made. 44 Lord Fraser considered that the principle that a confidentiality obligation could be overridden in certain circumstances extended beyond criminal matters. After referring to Lord Denning's judgment in Initial Services v. Putterill, Lord Fraser concluded at 1202: "The answer to the question therefore seems to me to involve weighing up the public interest for and against publication. The balance does not in my opinion depend on the use made of the leaked information by the appellants in this particular case. Anyone who hands over to the press a bundle of confidential documents belonging to some one else must surely expect, and intend, that, if they contain information of topical interest, it will be published in some form. The informant's motives are … irrelevant … . No doubt, there is a public interest in maintaining the free flow of information to the press, and therefore against obstructing informers. But there is also I think a very strong public interest in preserving confidentiality within any organisation, in order that it can operate efficiently, and also be free from suspicion that it is harbouring disloyal employees. There is no difference in this respect between a public corporation like [British Steel] and an ordinary company. Both have to disclose certain information about their activities. Unauthorised disclosure of confidential information [is] liable to damage efficiency and morale. In the present case I am of opinion that the public interest in preserving confidentiality should prevail and I would dismiss the appeal." 45 Lord Russell said at 1203: "In general terms I recognise the public interest in the free flow of information and that there may be some obstruction to that flow if a source is not entitled in law to rely on an undertaking by a journalist to treat the identity of the source as confidential to him. But where, as here, the undertaking results in or would perpetuate the gross wrong and injustice done to [British Steel], to accede to such a contention would indeed encourage the doing of injustice. I cannot accept that the public interest in the prevention of injustice is here negatived by any public interest in a free flow of information."

[16]

A v Hayden 48 I have already referred to the factual background to A v Hayden. The matter came to the High Court by way of a stated case after Dawson J had ordered interlocutory injunctions restraining the Commonwealth from disclosing the names of the ASIS officers who had been involved in the exercise at Melbourne's Sheraton Hotel to the Victorian Commissioner of Police. After the grant of the injunctions, Victoria passed legislation whereby matters involving national or international security could be heard in closed court. The Commonwealth then applied to have the injunctions dissolved, leaving the plaintiffs to seek any relief they might have for breach of the confidentiality term of the contract. The Commonwealth's own position was that the contract was unenforceable as against public policy. 49 Relevantly for present purposes, there were three questions for the Court's determination in A v. Hayden. First, would the disclosure of the officers' names amount to a breach of the contract of engagement. Secondly, was the confidentiality clause unenforceable insofar as it purported to prevent the Commonwealth from disclosing the officers' names to the Victorian Commissioner of Police. Thereafter, was the confidentiality provision enforceable in the interest of national security. 50 Mason J (at 557), drew a distinction between contracts that were void and those where, though valid on their face, a court would decline to enforce a particular provision thereof because the provision would have an adverse affect on the administration of justice. Falling into the former category were those contracts regarded by the common law as illegal, such as, to use the phrase of Lord Lyndhurst in Egerton v. Brownlow: "any contract or engagement having a tendency, however slight, to affect the administration of justice": see Mason J at 553. 51 Mason J also referred, amongst other cases, to Howard v Odhams Press. His Honour observed, however, that the statement of principle in these cases had been made at a time when the law did not distinguish between void and unenforceable contracts or between contracts that were unenforceable in the sense that it could not be sued upon and a provision of a contract that would not, in particular circumstances, be enforced. 52 His Honour also referred to another example of a contract that the law would not countenance, namely an agreement to compromise legal proceedings for an offence of a public nature: see Windhill Local Board of Health v Vint (1890) 45 Ch. D. His Honour (at 555) identified the underlying thrust of the common law principle as being directed as much against the detriment which it caused to the administration of justice if agreements of such a nature as those in question were enforced, as much as against "the evil of making knowledge of the commission of the crime a source of profit to the individual". 53 His Honour explained the underlying rationale more fully when he said at 555: "The assumption, unstated but unquestionably well founded, which lies behind the observations of Cotton LJ in Windhill as applied and expounded by Slesser LJ [in Howard v. Odhams Press ], is that the effective enforcement of the criminal law and the administration of justice, which are central elements in a well ordered democratic society, depend for their efficacy on the unrestricted freedom of each and every citizen to assist and co-operate with the authorities in the investigation and prosecution of criminal offences. There is therefore a powerful public interest in promoting and preserving the citizen's freedom to assist and co-operate with the authorities in the investigation and prosecution of crime." 54 It was in this context that his Honour (at 556) returned to Lord Lyndhurst's statement in Egerton v Brownlow, that "any contract having a tendency, however slight, to affect the administration of justice is illegal", accepting the statement was correct, "subject to a minor qualification". The qualification his Honour made (at 557) was this: whilst the focus of the statement of Lord Lyndhurst was on contracts or obligations that had a tendency to affect the administration of justice, it was "the effect of the enforcement of the contract that is all important". As his Honour explained, a simple contract not to disclose the existence of a criminal offence for reward would be most likely be illegal. However, a contract might be legal on its face but contain a broadly expressed confidentiality provision, which if enforced in particular circumstances, would result in the interference with the administration of justice. In that case, if the clause could not be read down, a court would refuse to enforce it.

[17]

55 Mason J pointed out (at 559) that when a court refuses to enforce a contract on the ground of public policy, the Court is subordinating private rights to the public interest. His Honour observed that the problem was in formulating, with any degree of precision, the criteria or circumstances which would justify a Court in doing so. His Honour continued: "The difficulties in ascertaining the existence and strength of an identifiable public interest to which the courts should give effect by refusing to enforce a contract are so formidable as to require that they ' should use extreme reserve in holding such a contract to be void as against public policy, and only do so if the contract is incontestably and on any view inimical to the public interest ': per Asquith LJ in Monkland v. Jack Barclay Limited [1951] 2 KB 252 at 265". (emphases added) 56 Mason J observed (at 559) that in the case before the Court, the head of public policy involved related to the enforcement of the criminal law, a field which was "well recognised" and one "in which the courts have a special interest and experience". 57 Mason J also recognised that there were circumstances in which there may be countervailing public interest considerations to which regard had to be had. In that circumstance, his Honour said (at 559-560) that "any opposing public interest must be identified and weighed in the balance so that the common law principle can be appropriately limited and applied". Mason J added, however, that it may be that the public interest in the administration of justice "was so strong" that it could not be outweighed by any countervailing policy consideration. His Honour also observed that the Commonwealth disavowed any reliance upon national or international security considerations. It followed, in his Honour's consideration (at 561) that "non-disclosure [of the officers' names] would have a tendency to adversely affect the enforcement of the criminal law…if on the facts recited in the stated case there are reasonable grounds for apprehending that the plaintiffs or any of them participated in the commission of the offences [alleged]". 58 Murphy J also drew a distinction between a valid contract that might be unenforceable in certain circumstances and an invalid contract. His Honour was not persuaded that the contracts in question fell into the former category but even if they did, he considered that in the circumstances before the Court it would be contrary to the public interest for a Minister of the Executive government to be prevented from revealing information that would assist in the investigation of a crime (at 563). His Honour was also not persuaded that there were any national security considerations to be taken into account, given the Executive's disavowal of any such threat.

[18]

59 Wilson and Dawson JJ identified the question before the Court as being whether the public interest in the administration of justice precluded the Court, in the exercise of its equitable jurisdiction, from restraining the disclosure of the officers names, notwithstanding the existence of the confidentiality clause in the contracts between the Commonwealth and the ASIS officers. Their Honours (at 574) answered the question in the affirmative, concluding that the injunctions sought by the ASIS officers should not be granted. In reaching that conclusion their Honours also engaged in an examination of authority, and in particular, the five authorities focussed upon above. Their Honours observed that the early cases in which the principle had been stated were concerned with "actual crime or fraud", but also observed that Lord Lyndhurst in Edgerton v. Brownlow stated the principle in broader terms. 60 Their Honours found it unnecessary to consider all the circumstances in which the enforcement of a duty of confidentiality might lead to a perversion of the administration of justice and so injure the public welfare, instead being content to rely upon the extensive review of the cases conducted by Sheppard J in Allied Mills Industries Pty. Limited v. Trade Practices Commission (No. 1). In that case Sheppard J concluded at 141: "The authorities establish that the public interest in the disclosure (to the appropriate authority or perhaps the press) of iniquity will always outweigh the public interest in the preservation of private and confidential information. To the extent that that was not clear beforehand, it has been made clear by the House of Lords [ British Steel Corporation v. Granada Television] … The public interest in the preservation of the secrecy of confidential communications was the basis upon which British Steel Corporation succeeded in Granada . It was said to be a matter of high public policy. But their Lordships, as I have shown, were careful to except cases of iniquities from the operation of the principle which they enunciated. The words used by Discount (sic) Dillhorne were 'some iniquity or crime'."

[19]

Sheppard J also rejected the argument that the principle was confined to cases where there had been, or there was contemplated, a breach of the law. His Honour considered that that proposition had been rejected in Initial Services v. Putterill and British Steel Corporation v. Granada. . 61 His Honour further stated at 146: "… relief (that is an order enforcing the confidentiality) will usually be refused only in a case where there is found to be some prima facie evidence of the commission of a breach of the law which is against the public interest generally and in a situation where an identifiable person has been or is to be proceeded against for that breach. It is not a case of allowing the [Trade Practices] Commission, or for that matter any prosecutor, simply to allege without any basis for it that there has been or may have been a breach of the law." 62 Brennan J (at 587) also endorsed the principle that obligations of confidence "cannot be enjoined by silence" where disclosure is justified in the public interest: see, for example, Initial Services v. Putterill. His Honour considered that where a contract contains a provision not to disclose information, that provision will be read down so as to permit disclosure where it is deemed necessary in the public interest. If such a provision was not capable of being read down the provision would be held void as contrary to public policy: see pp. 587-8. Under the terms of the confidentiality clause in the officers' contract of engagement, the Commonwealth had discretion whether to disclose the names to the law enforcement agencies. In that circumstance, Brennan J considered (at 590) that: In the absence of a binding contract , the executive government was at liberty to exercise its own judgment as to whether it should disclose the [ASIS officers'] identities to the Victorian Police Commissioner or whether considerations of national security justified a refusal to do so. That was a matter for executive discretion, not for judicial decision. 63 Deane J considered that when the public interest in question was the due administration of the criminal law, there was no balancing act to be undertaken by weighing up some other public interest. His Honour observed, however, at 598: "In some cases, of course, a balancing process may be involved in determining whether the enforcement of a promise to maintain confidentiality has the overall effect of advancing, rather than obstructing or adversely affecting, the due administration of the criminal law … Once it appears, however, that enforcement or insistence upon observance of such a promise would obstruct the due administration of the criminal law, the principle which precludes enforcement by the courts is operative without any further weighing process being necessary or other considerations of public interest being relevant." Other cases 64 The question of the extent to which there should be a restraint upon the imparting of confidential information was considered in Brown v. Brooks (unreported, 18 August 1988, McLelland J). In that case, the plaintiff had consulted the first defendant, a consulting clinical nurse specialising in mental health, having been charged with offences involving sexual assault and acts of indecency against a child under the age of 16 years. The prosecutor became aware that the plaintiff had consulted the first defendant who was then interviewed by police. In that interview, the first defendant informed the police what the plaintiff had told her about the matters relevant to the charges. This information was reduced to a written statement for the purposes of use in the criminal proceedings. The plaintiff applied to restrain the first defendant, and the hospital by whom she was employed, from communicating any information to the police and further, sought to restrain the police from using the information that had been communicated in any way. 65 McClelland J accepted that there was "a degree of public interest" in maintaining the confidentiality of communication between medical advisers and patients. His Honour, however, that that was not sufficient to justify enforcement of the confidentiality in circumstances where the information obtained during the course of any such communication related to the proper investigation and prosecution of a serious criminal offence. His Honour considered that the matter might be different in the case of a trivial offence: see A v. Hayden at 545-546 per Gibbs CJ and at 574 per Wilson and Dawson JJ. 66 Senior counsel for the claimant submitted that it is apparent from the foregoing that the doctrine, that the law will not enforce a contract or covenant that interfere with the course of justice, is not limited to the administration of criminal justice, but extends to the administration of justice generally, albeit the principle is most frequently invoked in the context of the criminal justice system. Although senior counsel for the opponents resisted this proposition, particularly having regard to some of the statements in A v Hayden where the focus was on the criminal law, I am of the opinion that the principle is not so restricted. The English cases are clear that the doctrine has wider application. Further, a full consideration of the statements in A v Hayden makes it apparent that the principle was discussed not only by reference to the English authorities, but in broader terms generally. However, the focus remained on matters of public policy. 67 Senior counsel for the claimant sought to have the notion of public policy and interference with the administration of justice apply to the case of a party to litigation who was concerned to have access to confidential information that might further assist in the preparation of her or his case. It was submitted that the principle as discussed in the cases was not limited to the conviction of the guilty, but extended to the exoneration of the innocent, as that term might be used both in the criminal law and in the civil law (AT 9). In so far as that applied to the present case, it was argued that the claimant was entitled to access to any information that might assist him in defending the claim against him. 68 Senior counsel for the claimant submitted that this proposition was supported by a further consideration of two matters. First, it was said that the law has always placed overriding emphasis upon the exoneration of those against whom allegations have been made wrongly. This, it was said, was secured by the different standards of proof in criminal and civil cases respectively - the standard of proof was "beyond a reasonable doubt" in a criminal case and "on the balance of probabilities" standard in a civil case. But in each case, the prosecuting or claiming party bore the onus to prove the case of wrongdoing at the requisite standard.

[20]

69 Secondly, the claimant sought to draw support for his extended proposition from the fundamental principle in the administration of justice, namely that there is no property in a witness: see Harmony Shipping Co SA v. Saudi Europe Line Limited [1979] 1 WLR 1380. The question that arose in that case was whether a handwriting expert, who had been consulted by both sides in the action, should give evidence for one side without the consent of the other. Lord Denning MR at (1384-1385) stated the principles by which the answer to that question was to be determined. First, his Lordship pointed out that there is no property in a witness for the reason that "the court has a right to every man's evidence". Thus, neither side could prevent a court from ascertaining the truth by seeing a witness beforehand or contracting with the witness in terms that the witness could not speak to or tell the other side the facts that had been observed. As Lord Denning MR said at 1384 "in no way can one side prohibit the other side from seeing a witness of fact, from getting the facts from him and from calling him to give evidence or from issuing him with a subpoena." As his Lordship pointed out (at 1385), any witness who had seen or who knew the facts was compellable to assist the court by giving evidence of those facts. 70 Lord Denning MR then went on to consider whether the same rule applied in relation to expert witnesses. His Lordship said at 1385: "Many of the communications between the solicitor and the expert witness will be privileged … If questions were asked about [the privileged material] then it would be the duty of the judge to protect the witness … by disallowing any questions which infringed the rule about legal professional privilege or the rule protecting information given in confidence - unless, of course, it was one of those rare cases that come before the courts from time to time where 'in spite of privilege or confidence the court does order a witness to give further evidence." 71 His Lordship concluded that in the case before him the expert witness could be subpoenaed, could be seen beforehand by the solicitors for one or either party and give a proof of evidence on matters which were not protected by privilege or confidentiality. His Lordship observed that the position would be no different if there was a contract of confidentiality which bound the witness, stating at 1386: "If there was a contract by which a witness bound himself not to give evidence before the court on a matter in which the judge said he ought to give evidence, then I say that any such contract would be contrary to public policy and would not be enforced by the court." 72 His Lordship concluded that there was no property in an expert witness as to the facts he had observed or his own independent opinion on them. Waller LJ and Cumming-Bruce LJ expressed similar views. 73 In the present case, senior counsel for the claimant did not accept that there was any balancing exercise involved, although he recognised that had been the approach taken in the English authorities. McClelland J in Brown v Brooks also appears to have accepted that there was a balancing exercise involved. There are also indications in A v. Hayden that a balancing exercise may have to be undertaken at least in certain circumstances: see, for example, Mason J as discussed at [57]; Deane J discussed at [63] above. 74 Senior counsel for the claimant submitted that if the opponents were able to insist upon the confidentiality of the communications between him and his parents, and Dr. Sholler and Dr. Lewis, it would, in effect, involve a claim by them of property in a witness - a matter which was contrary to principle (AT 14). It was submitted that once litigation was commenced public policy required that all relevant material be available to the parties to the litigation, including in the pre-trial phase, regardless of whether that information was confidential. As senior counsel put it: "public policy from the outset carves out that territory from the obligation of confidence" or to put the matter conversely, it would be contrary to public policy to prevent disclosure. Senior counsel recognised that this argument had been rejected in AG Australia Holdings Ltd v. Burton (2002) 58 NSWLR 464, however, (AT 14) he sought to demonstrate that that decision was wrong. AG Australia Holdings Ltd v. Burton 75 In AG Australia Holdings Ltd v. Burton, Campbell J was concerned with the question whether it was contrary to public policy for an employer to seek to enforce a confidentiality clause in an employment contract so as to prevent an employee from disclosing its confidential information to a solicitor albeit out of court, in relation to pending court proceedings. His Honour held (at 503) that the mere fact that confidential information might be of use to a party in civil litigation was not enough to override the obligation of confidence. 76 Campbell J engaged in an extensive analysis of A v Hayden. Having regard to the discussion of that case above it is sufficient to note the conclusions drawn by his Honour. First, Campbell J considered (at 489) that Mason J's judgment retained "a continuing flavour of focusing on contracts which interfere with the due administration of the criminal law". It was in that context, according to Campbell J, that Mason J had endorsed, with only minor qualification, the statement of Lord Lyndhurst in Egerton v Brownlow that a contract having a "tendency, however slight," to adversely affect the administration of justice was, depending on the circumstances, either void or illegal. 77 Campbell J (at 490; [73]-[85]) referred to the comments of Wilson and Dawson JJ in A. Hayden (see [59]) as well as the judgments of Brennan J (at 587) and Deane J (at 595) which focussed on the public interest in the administration of the criminal law and the need to ensure that there was no adverse interference with it. 78 Campbell J concluded (at 491; [86]) that the ratio in A v Hayden was that the term of the confidentiality clause in the contract was void because it interfered with the administration of the criminal law. Senior counsel for the claimant submitted that that was an erroneous reading of the High Court's reasons and was the first of the two bases upon which Campbell J erred in A G Australia Holdings v. Burton. Contrary to senior counsel's submission I am of the opinion that Campbell J correctly identified the ratio in A v. Hayden. However, as the above analysis demonstrates, the Court examined the principle more broadly. In the absence of direct authority on the point and given the thirst of the English authorities, their Honours' obiter statements should be applied by this Court. 79 Given his view as to the ratio in A v. Hayden, Campbell J concluded that other bases needed to be found if the confidentiality clause with which he was dealing was to be struck down. That conclusion caused his Honour to consider, in the first instance, the following issues in order to determine if there was any principle of law that might assist in the determination of that question. Those issues were: how to find public policy; the perversion of the course of justice (including attempts to do so) in the criminal law; and interference with the course of justice in the civil law. His Honour then considered the particular issue of confidentiality and the availability of evidence in court proceedings. For present purposes it is sufficient to refer briefly to the question as to how a court approaches the task of formulating "public policy", and then to the issue that bears more directly on this case, namely, the issue of confidentiality and evidence in proceedings. 80 In relation to the first issue - the task of formulating policy - Campbell J observed (at 493), in conformity with the authority upon which he relied and which is referred to below, that the answer to that question will change over time "from generation to generation". It is implicit in that comment that changes will be affected by the gamut of influences that prompt generational change, including social, economic and political factors. Given that premise, public policy is to be determined having regard to the "ideas which for the time being present in a community as to the conditions necessary to ensure its welfare": see Re Morris (Deceased) (1943) 43 SR(NSW) 352 at 355-356 per Jordan CJ. The concept of "public policy" is not, however, immutable: see Re Morris (Deceased); Wilkinson v Osborne (1915) 21 CLR 89 at 97 per Isaac J; A v Hayden; R v Young (1999) 46 NSWLR 681 at 700 per Spigelman CJ. The task of formulating public policy, which involves formulating what has already come to be regarded by the community as governing its "corporate life" (see Wilkinson v Osborne at 97) must be approached cautiously. The court will only declare a contract void as against public policy "when the contract is incontestably and on any view inimical to the public interest": Monkland v Jack Barclay Ltd [1951] 2 KB 252 at 265 per Asquith LJ, adopted by Mason J in A v Hayden at 559 (see above at [55]). 81 The next issue, relevantly, was his Honour's consideration of confidentiality and evidence in court proceedings. From his review, his Honour accepted (at [39]) that a solicitor could be restrained from disclosing confidential information: Rakusen v Ellis, Munday & Clarke [1912] 1 Ch 831 at 835; D & J Constructions Pty Ltd v Head (1987) 9 NSWLR 118; Bolkiah v KPMG [1999] 2 AC 222 (House of Lords). His Honour then gave a detailed consideration of the decision in Lord Ashburton v Pape [1913] 2 Ch 469. 82 In Lord Ashburton v. Pape, Pape had surreptitiously obtained privileged communications from Lord Ashburton to his solicitor and took copies of them, intending to use them in legal proceedings, being Pape's application for discharge from bankruptcy that Lord Ashburton was opposing. Lord Ashburton succeeded in obtaining an interlocutory injunction for the delivery up of the documents and for Pape and his solicitors to be restrained from using the documents or their contents except for the purpose of the pending proceedings. Lord Ashburton appealed in relation to the exception. His appeal was upheld. Cozens-Hardy MR pointed out (at 472-473) that there was a difference between the rule of evidence that permitted secondary evidence (by the way of copy documents) to be given: see Calcraft v Guest [1898] 1 QB 759 and an application directly made to the Court to restrain the use of privileged information improperly obtained. Swiften Eady LJ also referred to this at 475: "If a litigant has in his possession copies of documents to which legal professional privilege attaches he may nevertheless use such copies as secondary evidence in his litigation: however, if he has not yet used the documents in that way, the mere fact that he intends to do so is no answer to a claim against him by the person in whom the privilege is vested for delivery up of the copies or to restrain him from disclosing or making any use of any information contained in them." 83 Senior counsel for the claimant submitted that Campbell J read Lord Ashburton v Pape too widely, and that as properly understood, the injunction was granted in that case because the information was privileged, not because it was confidential. It could not be said therefore that it was authority for the proposition that confidential information could be protected from disclosure in the pre-trial phase. This was the second of the two errors said to have been made by his Honour in this part of the judgment. I do not agree. It is apparent from the judgment of Cozens-Hardy MR (with whom Kennedy and Swinfen Eady LJJ agreed) that the principle with which the Court was dealing related to 'protected' information regardless whether the 'protection' was afforded by privilege or confidentiality.

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Conclusion on the confidentiality issue 84 In my opinion, the claimant's argument based upon the principles said to emerge from the English authorities and from A. v. Hayden, that the opponents are not entitled to insist upon the obligation of confidence between themselves and their treating doctors, should be rejected. As I have already indicated, there is no doubt that the principle, that the law will in certain circumstances not protect an obligation of confidence, extends to civil cases. The authorities have been clear on this for over a century. The real question for determination is when the court will not permit an obligation of confidence to be insisted upon. As appears from the above review of the authorities, the principle has always been stated in association with an identifiable public interest that goes beyond the private civil rights of the parties to the obligation. In my opinion, on the authorities, the claimant is in no stronger a position here than was the defendant in Weld--Blundell v Stephens. 85 The principle that there is no property in a witness does not assist. That principle is designed to ensure that relevant evidence can be brought before the court. A party cannot constrain a witness from giving evidence regardless of the relationship between the party and the witness, except to the extent that the law so provides. For example, the Evidence Act 1995 (NSW) provides that certain persons (including spouses and children) are not compellable to give evidence in a criminal trial of communications between themselves and the accused (see s.18 cf. s.19). That does not mean, however, that the right of a party to call evidence in court operates so as to permit or require a potential witness to breach an obligation of confidence other than in the giving of evidence. Put simply, it does not mean that in the pre-trial phase, a party wishing to call a witness bound by an obligation of confidence, can require the witness to provide information that will breach the obligation of confidence. 86 This case involves private litigation between the parties. The opponents have engaged the legal system in seeking redress for an alleged wrong. They have a right to do so. The claimant has a right to defend the allegations against him. To that extent, the administration of justice is involved. Ankur also has a confidential relationship with his treating doctors that the law will protect unless it can be said that to do so may interfere with the administration of justice. However, the language of the case law is clear: an obligation of confidence will only be overcome where there is some matter of public interest that requires it. That will only be so where, to use the language of Asquith LJ in Monkland v. Jack Barclay Ltd, "the contract is incontestably and on any view inimical to the public interest". Party/party litigation of the type involved here is not of that nature. 87 I would also reject the claimant's argument that there is no balancing exercise involved in determining whether an obligation of confidence can be insisted upon in circumstances where there is an interference with the administration of justice. There may be a balancing exercise, depending upon the nature of the confidential information, the public interest said to be affected and whether there is any other public interest consideration. This too is clear on the authorities. However, in this case, that question does not arise, as, contrary to senior counsel's submission, the obligation of confidence is not being insisted upon in circumstances where it is contrary to public policy to do so.

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88 The claimant's waiver argument accepted as its premise that the consultations with, and communications between the first opponent and his parents, and Dr. Sholler and Dr. Lewis were confidential. The claimant submitted, however, that confidentiality had been waived when the first opponent commenced proceedings in which he put in issue the medical condition for which he was consulting Dr. Sholler. It followed, on this submission, that a party could not prevent a treating doctor from disclosing the observations made, and opinions formed in relation to the patient's medical condition, to an opposing party's solicitor during the pre-trial phase of the litigation. This was so even though Dr. Sholler was not a party to the proceedings. The case in relation to Dr Lewis was more indirect, as she had been a treating specialist for another condition [AT 1-2]. It was submitted that it was well established that the right of confidentiality is waived in such circumstances: see Thomason v. Campbelltown Municipal Council (1939) 39 SR (NSW) 347. 89 It was accepted by both parties that a right of confidentiality could not be asserted to resist compulsory court processes, including the requirement to give evidence in the proceedings. Further, it was not in dispute that Dr. Sholler and Dr. Lewis were compellable witnesses for either party in the proceedings, and, subject to a consideration of the provisions of the Evidence Act 1995 relating to "a Protected Confidence" (see generally s.126B), could be required to give evidence. 90 The question that arose in Thomason was whether the plaintiff had elected to pursue rights under the Compensation to Relatives Act 1987 (NSW) independently of claiming compensation under the Workers Compensation Act 1926 (NSW) following upon the death of her husband. The law, as it then stood, was that the dependents of a worker who instituted proceedings under the Workers Compensation Act were not debarred from suing for damages independently of the Act (for example, under the Compensation to Relatives Act) "unless the proceedings [were] instituted in the exercise of an option". In order to be found to have exercised an option, the plaintiff had to have knowledge that the law allowed two alternatives, and with that knowledge had chosen to pursue one alternative rather than the other. It was therefore necessary for the defendant to prove what knowledge the plaintiff had as to her legal rights. One of the issues in the case was what advice, if any, the plaintiff had received from legal advisers as to her alternative legal rights. Jordan CJ held (at 358-359) that as both the fact and the nature of the legal advice the plaintiff had received was an issue in the case, legal professional privilege could not be raised to prevent evidence being given of what advice had been received. 91 There are many authorities that support this principle: see Attorney-General (Northern Territory) v. Maurice (1986) 161 CLR 475; Benecke v. National Australia Bank (1993) 35 NSWLR 110 at 116-117 (and cases cited therein); Ampolex v. Perpetual Trustee Co. (Canberra) (1995) 37 NSWLR 405 at 411. The waiver does not have to be intentional. In Maurice, Mason and Brennan JJ said at 487 "A litigant can, of course, waive his privilege directly through intentionally disclosing protected material. He can also lose that protection through a waiver by implication. An implied waiver occurs when, by reason of some conduct on the privilege holder's part, it becomes unfair to maintain the privilege." 92 Once the conditions of waiver have been made out, it admits of no exceptions: see Benecke at 116-117. In that case, Clarke JA observed that once the appellant alleged that her litigation had been compromised by her lawyers without her consent, she opened up the question of the authority of her lawyers to act as they did. She thereby waived privilege. 93 These cases all involved legal professional privilege. Senior counsel for the claimant submitted that the same principles applied in relation to confidential material, so that once the privilege or right of confidentiality has been waived, the confidence or privilege has no on-going operation to the particular matter which is the subject of the confidence or privilege. The consequence, on the claimant's argument, was that the opponents had thereby waived all rights relating to the confidential material, including, in this case, the right to interview Dr. Sholler in the pre-trial phase. It was submitted that were it otherwise, there would be an impermissible inhibition on the administration of justice. 94 There is no doubt that if there has been a waiver of privilege or confidentiality, then the waiver operates so that whatever rights were hitherto protected no longer have the relevant protection. However, that merely gainsays the question under consideration. The question at issue is whether the opponents have waived their right to confidentiality in relation to Dr Sholler and Dr Lewis when no claim has been made against them. None of the above authorities have extended the principle so far. 95 However, there is a line of authority, which relevantly commences with a Canadian decision of Hay v. University of Alberta Hospital (1990) 69 DLR (4th) 755, to the effect that by the commencement of legal proceedings relating to a particular medical condition, a plaintiff waives any right of confidentiality between the plaintiff and a treating doctor, notwithstanding that the treating doctor is not a party to the litigation. As the waiver occurs at the point of commencement of the proceedings, an opposing party is entitled, at the pre-trial stage, to have access to information including the right to interview the other party to the confidential relationship, that is, the treating doctor. In Hay, Pickard J said at 761-762: "It is the action of commencing litigation which removes the cloak of confidentiality from that information which might under other circumstances remain confidential. Any subsequent consent or prohibition by the patient is nugatory.

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Earlier (at 761-762) her Honour observed that: "The right to confidentiality is then eclipsed by the right of those who face the action to know the basis and scope of the claim being advanced." 96 Hay's case has had a chequered history. It was cited with approval by L'Heureux-Dube J (the other members of the Canadian Supreme Court agreeing) in Frenette v. Metropolitan Life Insurance Co. (1992) 89 DLR (4th) 653. Frenette was concerned with the disclosure of medical records so that although the Court's judgment would presumably have carried weight in Canada the Court's endorsement of Hay was obiter. Consequently, the judgment does not advance the jurisprudence in the area. 97 In Swirski v. Hachey (1995) 132 CLR (4th) 122, Wilkinson J, after an extensive review of the cases, held that the principles stated in Hay should be applied in British Columbia. His Honour considered that there was a clear principle that a plaintiff could not make a claim in respect of a matter and at the same time seek to claim confidentiality or privilege over the matter. That of course is true in so far as it relates to a claim against the party to the confidential relationship. It is also true of the case where the matter in issue is such that the confidential or privileged information is essential to the proof of central issues to the claim, as was the case in Thomason. What was in issue in Swirski, and is in issue here, is whether there is a waiver where the information sought is information in the hands of a third party subject to a confidential relationship. Wilkinson J drew support for the application of Hay from the obiter endorsement of it in Frenette v. Metropolitan Life Insurance Co., together with the modern trend of greater access to information in the course of litigation. His Honour commented: "The search for justice must begin with accurate information." His Honour further observed that that there was no waiver of confidential medical information not in issue in the litigation. 98 Wilkinson J's endorsement of Hay was itself obiter as there was agreement in the case before him that the doctor/patient relationship had been waived. At issue was the extent of the waiver. 99 Stoodley v. Ferguson (2001) 93 Alta LR (3d) 78 is another decision in which a Canadian court considered that there was a waiver of the patient/doctor confidential relationship even though the treating doctor was not a party to the litigation. The Court held that there was a waiver only to the extent necessary for the action. Burrows J of the Alberta Queen's Bench also considered that the plaintiff had a right to be fully informed of the information released by the treating doctor such that the plaintiff had a right to be present at interviews between the legal opponent and the treating medical practitioner. The claimant has offered to agree to such a condition if necessary (AT 23) in this case. 100 There are also a significant number of Canadian cases which have either not followed Hay or have considered that it states the principle of waiver too widely. In St. Louis v. Feleki (1991) 75 DLR (4th) 758, Craig J in the Ontario Court (General Division) said (at 762) that whatever the practice was in Alberta, there was no such practice in Ontario. He held that: "… there is no basis in Ontario for holding that simply by commencing an action for damages resulting from personal injuries, a litigant-patient waives the right to confidentiality arising out of the patient-physician relationship, or that the litigant-patient impliedly consents to the physician releasing information to the defendants. 101 His Honour warned of the dangers of disregarding the right of confidentiality that a patient had, particularly the disclosure of information that might not ultimately be relevant to the matters in issue in the case. His Honour also considered that the defendant's rights were adequately protected by the court processes for disclosure. 102 Hay was not followed in Wells v. Paramsothy (1996) 98 OAC 233 (a decision of the Divisional Court of the Ontario Court of Justice (General Division)). Doubt as to its correctness was also raised by the Alberta Court of Appeal in M(N) v. Drew Estate (2003) 230 DLR (4th) 697, where Cote JA (with whom Fruman JA agreed) said that Hay's decision might require reconsideration given the decision of the Supreme Court of Canada in M(A) v. Ryan (1997) 143 DLR (4th) 1. 103 M(A) v. Ryan involved the question of production of the medical records of a treating doctor not party to the litigation. The Court's approach was to limit the circumstances in which confidentiality would be waived. McLachlin J (with whom La Forest, Sopinka, Cory, Iacobucci and Major JJ agreed, L'Heureux-Dube J dissenting), said (at 14-15) that medical records could be protected from disclosure. Whether they were protected: "… depend[ed] on the balance of the competing interests of disclosure and privacy in each case … Fishing expeditions are not appropriate where there is a compelling privacy interest at stake, even at the discovery stage." 104 Hay was not referred to in M(A) v. Ryan, although it appears from the judgment in that case that the Canadian Supreme Court would not endorse the wide statement of principle made in Hay. McLachlin J observed (at 13) that although privilege had traditionally been treated as an absolute concept, that was not so in more recent jurisprudence. This observation indicates that the Canadian cases, regardless of whether they endorse Hay, are probably of little assistance to this Court. There has been no indication in Australian jurisprudence that waiver involves a balancing of different interests. Either a right is, as a matter of law, waived, or it is not: for example, Benecke v. National Australia Bank at 116; Mann v. Carnell at 13[29]. There may be questions as to the precise point in time as to when a waiver is said to have occurred and there will invariably be disputes as to whether in all the circumstances, waiver has occurred. Likewise, there may, in a particular case, be argument as to the extent of the waiver. But those considerations are different from saying that there is a balancing exercise involved in giving effect to the waiver. 105 It is apparent that Campbell considered that M(A) v. Ryan was inconsistent with Hay. Senior counsel for the claimant submitted this was not so. There is some basis for this criticism, as the point being discussed by McLachlin J, namely, that any waiver did not extend to matters that were not in issue in the litigation, was not discussed in Hay. However, and as senior counsel for the claimant accepted, McLachlin J's earlier statement (quoted at [103] above), was against the propositions he was seeking to advance in this case. But in any event, for the reasons I have already discussed, I do not consider that M(N) v. Ryan provides any particular jurisprudential assistance to the resolution of the issue before the Court.

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106 There have been a number of decisions in the United Kingdom on the question whether there has been a waiver by the commencement of litigation. However, most of those cases proceeded on the assumption that the question in issue was either whether any application to have access to a plaintiff's doctor was premature or whether any conditions, such as the requirement that the plaintiff be present at any such interview, should be imposed. The decisions were necessarily interlocutory and in some of the cases where Hay was cited, for example, in Nur v. John Wyeth & Brother Ltd [1996] 7 Med LR 300, the disapproval of that decision in St. Louis v. Felecki was not. Some of the cases related to the question whether a stay should be granted. Thus in Nicholson v. Halton General Hospital NHS Trust [1999] EWCA Civ 1664 (24 June 1999, unreported), Sumner J stated that the doctor/patient relationship was confidential and could only be waived by a patient voluntarily. His Honour stated that the Court could not order a plaintiff to waive such a right but, in an appropriate case, might order that proceedings be stayed unless and until confidentiality was waived. 107 By contrast, in McGrory v. Electricity Supply Board [2003] IESC 45 (24 July 2003), the Supreme Court of Ireland considered that the approach adopted in Hay and adopted in other common law jurisdictions (and here the Court referred to Nur v. John Wyeth and Shaw v. Skeet Aung Sooriakumaran [1996] 7 Med LR 371) should be adopted in Ireland. The Court said: "The plaintiff who sues for damages for personal injuries by implication necessarily waives the right of privacy which he would otherwise enjoy in relation to his medical condition. … Once proceedings have been instituted, such an examination and full access to the plaintiff's medical records and interviews with his medical advisors are of assistance in enabling the defendants to form a view as to the amount of damages which the plaintiff is likely to recover and of any lodgement which they should prudently make in court with their defence. Whether or not liability is a live issue in the case, making such material available to the defendant at an early stage of the litigation, instead of withholding it until the action itself, when it will have to be produced, can only facilitate the earlier settlement of actions. I have no doubt that the courts enjoy an inherent jurisdiction to stay proceedings where justice so requires and that it should be exercised in cases where the plaintiff refuses to submit to a medical examination or to disclose his medical records to the defendant or to permit the defendant to interview his treating doctors." (emphasis added)

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108 The Irish Supreme Court thought it irrelevant that a party could have access to relevant material at a later stage. The Court also considered that access to treating doctors at an early stage was an important adjunct to the early settlement of claims. Having identified this as an apparent rationale for finding there had been a waiver, the Court concluded that it had an inherent jurisdiction to stay proceedings "where justice so requires", and that a stay should be granted where a plaintiff refused to permit a defendant to interview the plaintiff's treating doctors. The Court granted a stay in that case. 109 In my opinion, this part of the Court's reasoning, and the order granting the stay, indicate that the Court was perhaps confusing the legal underpinning of the principles of waiver and the jurisdiction to grant a stay or the distinction is not relevant in that Court's jurisprudence. If a right has been waived, the party that has waived the right has no claim to make an assertion in respect of that right. On the other hand, if the Court is considering whether or not to grant a stay, it may do so contrary to a party's prima facie rights if the interests of justice so require. An example is where a court stays execution of a judgment pending an appeal. In McGrory, as I have indicated, the Court granted a stay, having found that "justice so require[d]". The underpinning of that order is, it would seem, to be found in the paragraph discussing the facilitation of early settlement. Such a consideration is unnecessary, in my opinion, if there has been a waiver, even if the end result is the same. 110 The only case in Australia or New Zealand in which Hay has been considered was McGuire v Ferguson & Anor (Supreme Court of New South Wales, Common Law Division, 11 December 2001, Solomon AJ, unreported). Solomon AJ refused to follow Hay, but did so without any analysis of the principles involved. 111 In an appendix to his judgment, Campbell J undertook a further analysis of the cases listed in Swirski v. Machey. His Honour considered that one only, Doe & Ors. v. Eli Lilley & Company Inc & Ors (1983) 99 FRD 126, an American decision of the United States District Court of Colombia, supported Hay. Senior counsel for the claimant disputed this, and in particular was critical of his Honour's analysis of Ansley v. Ansley (1973) 12 RFL 93, a single judge decision of the British Colombia Supreme Court. However, as senior counsel accepted that there was no consistency in the statements of principle in the various decisions in Canada, the United States, the United Kingdom and Ireland, and that the decisions went both ways, it is not necessary to take this aspect of the argument any further. That was also the position reached by Campbell J.

[28]

Trial judge's consideration of waiver 113 His Honour next considered the principles of waiver, particularly by reference to Commonwealth of Australia v. Verwayen (1990) 170 CLR 394 and Mann v. Carnell (1999) 201 CLR 1. Given the challenge to Campbell J's finding on this issue, it is necessary to consider the various judgments in the High Court in Verwayen. I will do so as briefly as possible. 114 Underpinning each of the judgments in Verwayen is the recognition that waiver is an imprecise term (see, for example, Gaudron J at 481) and is often used to describe more specific concepts, particularly election and estoppel (see Mason CJ at 406-407), or election, estoppel or contract (see McHugh J at 491). 115 Brennan J, however, considered that there was a distinct doctrine of waiver amounting to the abandonment of a right once and for all. As his Honour observed (at 423), "waiver recognises the unilateral divestiture of certain rights". He drew support for this statement from Broom's Legal Maxims 10th ed (1939) p.477:"Any one may, at his pleasure, renounce the benefit of a stipulation or other right introduced entirely in his own favour". Brennan J also observed (at 424) that a right may be waived although there is no alternative right inconsistent with it. It followed on this approach that a condition precedent to the jurisdiction of a court to grant relief cannot be waived nor can an element in a plaintiff's cause of action, as in neither case was the relevant stipulation for the benefit of one party. It was different where, for example, a limitation provision barred a remedy but not the right to bring the action. The limitation provision under consideration in Verwayen was held to be of that kind. 116 Brennan J observed that a failure to plead such a limitation provision did not, without more, establish a waiver if for no other reason than a pleading was always capable of amendment. His Honour considered that a limitation period that barred a remedy was not waived until the moment before judgment. As his Honour said at 427: "[A] right is waived only when the time comes for its exercise and the party for whose sole benefit it has been introduced knowingly abstains from exercising it." 117 Brennan J also quoted, with approval, the statement of Lord Hailsham in Banning v. Wright [1972] 1 WLR 972 at 979: "… The primary meaning of the word 'waiver' in legal parlance is the abandonment of a right in such a way that the other party is entitled to plead the abandonment by way of confession and avoidance if the right is thereafter asserted." 118 Deane J resolved the matter on the basis of estoppel by conduct. However, he was in general agreement with the analysis of the law undertaken by Dawson J (see Deane J at 431 ff). 119 Dawson J noted (at 451) that waiver is an imprecise term and "is used to describe what is done in a variety of circumstances rather than to assert any particular legal process". He observed that it is often used to connote either election or estoppel and that "where it is not used in the sense of election between mutually exclusive alternatives, if it has any identifiable legal consequence, it is generally indistinguishable from estoppel". 120 Dawson J referred to Spencer Bower and Turner, The Law Relating to Estoppel by Representation 3rd ed (1977) at 320 where the authors stated: "Possibly [waiver] may be regarded as usefully describing an end-result; but its application to the process by which that result is brought about is almost invariably attended with ambiguity as to the essential nature of that process."

[30]

121 Dawson J also observed (at 457) that when the term waiver was not being used to describe election or estoppel "it may be used loosely to indicate non-insistence upon a right either by choice or by default" (emphasis added). When waiver was used in that sense, the question it evoked was whether a party, having failed to insist upon a right at a particular time, should later be allowed to do so. 122 Toohey J adopted the distinction made by Isaacs J in Craine v. Colonial Mutual Fire Insurance Co Limited (1920) 28 CLR 305 between election and waiver. In the case of election, a party makes a choice between two mutually exclusive rights. However, in the case of waiver, a party will not be permitted to take up "two inconsistent positions" (emphasis added) (see Isaacs J at 326). Toohey J then said at 473: "Waiver, in the sense used for the purposes of this appeal, may be found in the deliberate act of a defendant not to rely upon a defence available to him. That is not to say that there must be an intention to bring about the consequences of waiver; rather the conduct from which waiver may be inferred, must be deliberate. Detriment is not an essential attribute of waiver, though it will often be found as a consequence. Within the adjudicative process at any rate, it is enough that the defendant 'renounces' a defence which is available to him and which is there for his benefit." 123 Gaudron J (at 481) also referred to the statement of Isaacs J in Craine where his Honour referred to waiver as "a doctrine of some arbitrariness introduced by the law to prevent a [person] in certain circumstances from taking up two inconsistent positions" (emphasis added). Her Honour observed that that expression was wider than the expression of "asserting two inconsistent rights", the latter expression usually being understood as election: see Sargent v. ASL Developments Ltd (1974) 131 CLR 634 at 641. Her Honour explained how this operated in the course of litigation at 482: "If, in the course of litigation, a person fails to plead a matter, take an available objection or pursue a particular point of law, the matter proceeds on the basis that the point which might have been taken is not in issue. Were it otherwise the conduct of the litigation would be unmanageable. Of course, leave may be granted for the point to be raised … [g]enerally leave is granted if the point can be raised without injustice to the other party. … When a party to litigation deliberately chooses not to take a point or fails to take a point when it comes to notice, the courts may adopt a more stringent attitude, treating the point as having been irrevocably abandoned. Usually the party who has thus failed to take the point is said to have 'waived' it." 124 Campbell J found at [J72] that if waiver had any application to this case, it was that identified by Gaudron J. It was not the type identified by Dawson J, which involved the case where a party had not insisted upon a right at one time, but later sought to raise it. It is perhaps worth adding that there is support for Gaudron J's view in Toohey J's judgment. On that approach, Campbell J (at [J72]) identified the question to be asked in this case as being whether there was an inconsistency between the opponents insisting upon Ankur's confidential relationship with his treating doctors and commencing these proceedings. (I pause to observe that His Honour posed the question in generic terms. Its particular application to the facts in this case is as I have stated it). 125 His Honour considered that this approach was supported by the joint judgment in Mann v Carnell where Gleeson CJ, Gaudron, Gummow and Callinan JJ said at 13 [29]: " … It has been observed that 'waiver' is a vague term, used in any senses, and that it often requires further definition according to the context. … Waiver may be express or implied. Disputes as to implied waiver usually arise from the need to decide whether particular conduct is inconsistent with the maintenance of the confidentiality which the privilege is intended to protect. When an affirmative answer is given to such a question, it is sometimes said that waiver is 'imputed by operation of law': eg, Goldberg v Ng (1995) CLR 83 at 95. This means that the law recognises the inconsistency and determines its consequences, even though such consequences may not reflect the subjective intention of the party who has lost the privilege… What brings about the waiver is the inconsistency, which the courts, where necessary informed by considerations of fairness, perceive, between the conduct of the client and maintenance of confidentiality ; not some overriding principle of fairness operating at large". (emphasis added)

[32]

127 Campbell J's resolution of the question he had identified was first to recognise that the commencement of proceedings by the opponents involved a waiver of the confidential relationship between Ankur and the claimant in respect of the medical matters in issue in the proceedings (see [J.76]). His Honour then noted that there could be a partial waiver of confidentiality, by which I understand his Honour meant waiver may extend in a given case to a severable part of the confidential information. Next, and critically, he observed that if a party commenced proceedings against a medical practitioner alleging on-going problems as a result of the practitioner's negligence, the practitioner was entitled to have the opportunity to investigate the allegations so as "to have a fair opportunity to defend the action": [J.79]. The question as to what was required for a party to be afforded a "fair opportunity to defend the action" resolved the question, on his Honour's approach, as to whether there had been a 'waiver' in the sense he was using it. This is apparent from the following two passages in his Honour's judgment. First, he said at [J78]: "There are, however, various means by which such a [party] can obtain information about the course of treatment which the [party that has commenced proceedings] has undergone, and the symptoms which [that party] has exhibited after ceasing to be under the [other party's] care, which can be obtained without an out-of-court interview impinging on the doctor-patient confidentiality between the [party that commended proceedings] and [their] new treating doctor". 128 His Honour at [J79] explained the relevance of a consideration of the various ways information could be obtained. "Whether it is inconsistent for the [opponents] to proceed with the litigation, and assert an ongoing obligation of confidence from his treating doctor, depends on whether the means available to the [claimant] to be informed about, and inquire into, the [opponents] health are sufficient to enable the [claimant] to have a fair opportunity of defending the claim. I turn to consider the various means a defendant in such an action has of obtaining information about the plaintiff's health, so far as is relevant to the litigation. 129 His Honour then considered the various curial means available to the appellant to be informed as to Ankur's medical condition. Those means included obtaining Dr Sholler's and Dr Lewis' medical records on subpoena; by having Ankur medically examined; by having discovery of documents in the respondent's possession; and by evidence given in court. 130 As to the availability of information from subpoenaed medical records, his Honour observed that medical practitioner's are required by the provisions of the Medical Practice Act 1992 (NSW) (s.126) and the Medical Practice Regulation 2003 (NSW) (see Pt 3) to keep specific records in relation to a patient, including tests undertaken, diagnosis, treatment given, clinical opinion, and a note of advice given. As was noted earlier in these reasons, the claimant accepted that the medical records of Dr Sholler and Dr Lewis were amenable to the subpoena process, and in fact had been subpoenaed. Accordingly, to the extent that there was documentary evidence of Ankur's treatment, including his medical history, the medical diagnosis of his condition, his treatment and prognosis, that material was already available to the claimant.

[34]

132 His Honour (at [J93]-[J95]), declined to follow Hay, holding that, given the means available to a defendant to be appropriately informed about relevant aspects of a plaintiff's medical condition (that being the matter in issue in this case): "93. … the mere fact that the plaintiff sues a medical practitioner for negligence, and alleges effects of that negligence concerning which he received treatment from other doctors, means that the maintenance of confidentiality by the plaintiff's treating doctors is inconsistent with the plaintiff bringing the action he or she brings. 94. For the bringing of proceedings to count as a waiver of such confidentiality, it would have to be possible to say, as soon as the proceedings were brought, that the plaintiff would be acting inconsistently in both continuing with the proceedings, and in seeking to maintain an obligation of confidence from his treating doctor." 133 The claimant contends that his Honour's approach at [J79] (set out at [128] above), and the considerations that flowed from it and which led to his Honour's conclusion, exhibited an erroneous approach to the question whether, in this case, there has been a waiver of the confidential relationship. The claimant appears to accept that 'waiver', for the purposes of this case, was as articulated by his Honour at [J72]. He contends, however, that if it is determined that there are two inconsistent positions being asserted, then 'waiver' is established. It is not relevant on that approach to ask whether there are other forensic means by which the appellant may gain access to the information, which, he says was the test applied by Campbell J. He recognised that the existence of other such means are relevant to the question of a stay if waiver was not established. 134 With respect to the very detailed and analytical argument advanced by senior counsel for the claimant, I am of the opinion that Campbell J was not, at [J79] and following, engaging in a balancing exercise similar to that required when the question is whether a stay should be granted. Rather, his Honour was considering whether it was inconsistent for the opponents to commence the litigation and to insist upon the maintenance of the confidential relationship. That involved an understanding of whether an insistence by the opponents on the maintenance of confidence would mean that the claimant would not have a fair means of defending himself in the proceedings. That in turn involved an understanding, not only of the allegations made, but of the information, including the means of obtaining information, available to him to defend the allegations. The processes discussed by his Honour were the processes whereby all aspects of Ankur's treatment, including the history obtained, tests undertaken, diagnosis and treatment, were available to the claimant. It would seem that the only matter not available was Dr Sholler's opinion on these matters, and possibly, his opinion on the claimant's treatment of Ankur. As to the first, it is far from clear that any interview with Dr Sholler would result in an amplification of the matters that appear in the notes. What is clear is that an amplification of matters that are already known is not necessary to allow the claimant a fair opportunity of defending the allegations. The same applies in relation to Dr Lewis. As to the second, an opinion on such matters could be and has been obtained from other medical specialists.

[35]

Conclusion on waiver 135 Accordingly, I am of the opinion that the error alleged in his Honour's reasoning has not been established. There is no authority binding on this court that governs the question whether the opponents waived their right to confidentiality by the commencement of proceedings. Nor, in my opinion, is there any matter in principle to support such a submission. I would only add that, having had the benefit of reading in draft the reasons of Hodgson JA, there may remain a question of waiver in this case depending upon what steps the opponents take in the litigation when those steps are taken and what matters are in issue. However, as the matter presently stands, there has been no waiver and I do not find it necessary, therefore, to comment further on any such possibilities. Stay 136 The claimant submitted that even if the opponent had not waived the confidentiality that attached to their communications with Dr Sholler and Dr Lewis, the proceedings ought to be stayed unless and until they do so. 137 The existence of the power in a court to grant a stay is well recognised. The basis of its exercise is to prevent injustice. The court will be astute however, to exercise the power sparingly: see Tringali v. Stewardson Stubbs & Collett Ltd (1965) 66 SR (NSW) 335; Ferris v. Lambton (1905) 22 WN (NSW) 56; Medaris v. Lars Halvorsen & Sons Pty. Ltd. (1943) 44 SR (NSW) 71; Davey v. Bentinck (1893) 1 QB 185; Carr v. Royal Exchange Assurance Corporation (1864) 34 LJQB 21. In Dwyer v National Companies & Securities Commission (No. 2) (1988) 15 NSWLR 285, McLelland J referred to the inherent power to grant a stay in appropriate circumstances, reinforced by s 23 of the Supreme Court Act 1970 (NSW), which enables the court to make such orders as "may be necessary for the administration of justice in New South Wales" His Honour, after noting that the power to grant a stay rested upon the purpose of preventing injustice, said that the extent of the power was co-extensive with the requirements of the necessity which called the power into play.

[37]

139 It was submitted that this stated the test too highly. However, it is clear that when his Honour said that the appellant bore the onus of establishing at a prima facie level that there was information that was being kept secret from him, he was not stating a general principle. Rather, he was looking at the application of the general principle, namely whether a stay should be granted so as prevent injustice, to the present case where the appellant alleged that access to information additional to that already available, was necessary in order to have a fair trial. This is apparent from his Honour's statement at [J111]: If a litigant satisfies the court that a fair trial of the action cannot be had while the opposing litigant insists on a right to keep information confidential, the court can stay the action until that right of confidentiality is no longer insisted on. 140 A party seeking a stay bears the onus of establishing that a stay is necessary. In this case, as the claimant already had access to the treating doctors' clinical notes, the claimant bore an onus to show that without access to other information not contained in the doctors' notes, it was not possible to have a fair trial. Such a proposition is predicated upon there being some such information, a matter upon which the claimant also bore the onus. Given the information available to the claimant, already discussed above at [128]-[130], his Honour considered that what the claimant had to establish to discharge that onus was that there was some information which, whilst it remained secret, meant that there could not be a fair trial. As I understand it, his Honour, by his reference to "secret" information meant no more than the claimant was required to establish that Dr. Sholler had relevant information arising from the patient/doctor confidential relationship that was not contained either in the notes or Dr Sholler or Dr Lewis, or information that was not obtainable on discovery or, possibly, interrogatories. 141 There is no error in his Honour's approach. His Honour set out in a thorough and logical way what was required to discharge the onus that the claimant bore as the party seeking the stay. Any other approach, on the facts of this case, would permit the claimant to engage in a fishing expedition on pain of the proceedings being stayed. His Honour recognised this, as I have already indicated.

[42]

147 Senior counsel for the claimant further submitted that not only had his Honour erected the barriers of onus of proof too highly, the principles that governed the grant of a stay were much wider than he had stated them. He submitted that there was ample authority that a stay would be granted if it could be shown that it was likely that the treating doctor had relevant information that potentially would advance the case or "illuminate the issues in the case" [AT 29]. Senior counsel used as his legal springboard for this issue the decision of Shaw v. Skeet Aung and Nicholson v. Halton General Hospital NHS Trust (see above at [106]). 148 Shaw involved a case where a plaintiff had sued his treating doctor. Buckley J observed that confidentiality had been waived and that a plaintiff could not, other than by risking having the proceedings stayed, impede material evidence being obtained by the other side and placed before the Court. His Honour said at 374: "… the court has no hesitation in entertaining an application to stay proceedings if that is indeed what it takes to enable the proper evidence to be brought before the court." That statement is not directly applicable here. In this case there has not been a waiver and there is no suggestion that the opponents are seeking to prevent relevant information being placed before the Court. Dr Sholler's opinion, as opposed to the facts of which he could evidence, such as the history given, the diagnosis, treatment and the like, is not relevant evidence as that term is properly understood. Dr Sholler's opinion on certain matters, including the original failure to diagnose Ankur's condition, may, of course, be helpful to the Court. But in that regard, his opinion is no more helpful than the opinion of any medical expert in the same field. 149 In Nicholson the plaintiff had sued her employer in negligence, alleging that her working conditions had caused her repetitive strain injury. The defendant wished to speak to the plaintiff's treating surgeon. Sumner J said that in "an appropriate case" a court could order a stay if a plaintiff refused to waive the confidentiality of the doctor/patient relationship. However, it is apparent from the order made by the Court in Nicholson that what was being sought, relevant to the plaintiff's claim, were two facts: the nature of the plaintiff's condition that necessitated surgery, and, what the operative treatment revealed about the plaintiff's condition. Information of a like nature in this case, namely, facts of observations carried out and diagnoses in relation to Ankur's condition, have already been made available to the claimant. Accordingly, that case does not, assist the claimant in this case. 150 The claimant next relied upon a series of cases that related to a plaintiff's refusal to undergo a medical examination or an examination with a nominated doctor: Edmeades v. Thames Board Mills Ltd [1969] 2 QB 67; Lane v. Willis [1972] 1 All ER 430 and Starr v. National Coal Board [1977] 1 All ER 243. However, those cases relate to a quite different issue. The rules of court require a plaintiff to undergo a medical examination by a doctor nominated by a doctor in any case where a medical condition is in issue. Should a plaintiff refuse or fail to do so, the court may stay the plaintiff's claim. A stay imposed in that circumstance is in aid of particular rules of court and is but an exemplification of the underlying principle governing the grant of a stay - namely so as to prevent an injustice.

[43]

151 The difficulty with a test stated in the terms as formulated by the claimant, namely that a stay would be granted if it could be shown that it was likely that the treating doctor had relevant information that potentially would advance the case or illuminate the issues is that it assumes the answer. Any treating doctor would potentially be able to illuminate the issues for a defendant. Further, a test stated in such broad terms moves away from the notion of what is required for a fair trial. In a case such as this a defendant has to have access to the facts that relate to Ankur's condition. Although the claimant had contended that the usual pre-trial processes had not been sufficient for this purpose, His Honour was not satisfied that this had been established. He concluded at [J.149]: "[I am] not persuaded that a fair trial would not be had without the [claimant's] lawyers ascertaining verbally from Dr Sholler his recollection of what the adult [opponents] told him about what they told the [claimant] concerning Ankur's condition. No inadequacy in Dr Sholler's notes had been demonstrated. The topic of what history [Ankur's] parents gave to the [claimant] is one concerning which (sic) the [claimant] has first hand knowledge and presumably records. 152 Both the claimant's experts had been able to give reports and did not express any opinion that their ability to give a complete report was in any way hindered by a lack of information or the need for further information from Dr. Sholler. For example, Dr. Wilkinson raised a question as to whether the cardiac catheter studies should have been undertaken earlier and differently, but did so expressly "with the benefit of hindsight" and in response to a request by the claimant's solicitors to express an opinion on the possible negligence of any other healthcare provider. 153 No evidence was advanced as to why the claimant needed to speak to Dr. Lewis other than that she had been a treating doctor since birth. His Honour thus concluded the claimant's application in relation to Dr. Lewis was nothing more than a "fishing expedition". In the absence of any evidence as to what facts Dr Lewis had in her possession that had not been made available to the claimant, this finding is not amenable to challenge on the appeal. Conclusion on stay 154 The decision to refuse the stay was a discretionary decision made on an interlocutory application on a matter of practice and procedure. As such, this Court will only interfere if error has been made in the exercise of the discretion. The test is that stated by Dixon, Evatt and McTiernan JJ in House v. The King (1936) 55 CLR 499 at 404-405: "It is not enough that the judges composing the appellate court consider that, if they had been in the position of the primary judge, they would have taken a different course. It must appear that some error has been made in exercising the discretion. If the judge acts upon a wrong principle, if he allows extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration, then his determination should be reviewed and the appellate court may exercise its own discretion in substitution for his if it has the materials for doing so. It may not appear how the primary judge has reached the result embodied in his order, but, if upon the facts it is unreasonable or plainly unjust, the appellate court may infer that in some way there has been a failure properly to exercise the discretion which the law reposes in the court of first instance." 155 The claimant contended that Campbell J applied a wrong test. I have referred to this at [140]. But in my opinion, the statement of the test against which the discretion was to be exercised was stated by his Honour in the first sentence of [J.111], namely, whether the claimant has satisfied the Court that the opponents' insistence upon maintaining the confidentiality of the information sought would mean a fair trial could not be had. It is repeated at various places in subsequent passages in his Honour's judgment: see, for example: [J.114]; [J.115] and [J.116]. In the remainder of [J.111], his Honour was referring to what a defendant would need to establish in order to discharge the onus which the party seeking access to confidential information bore on an application for a stay such as this. 156 Accordingly, I see no error in his Honour's statement of the test to be applied in determining whether to grant a stay. Nor do I consider there was any error in his Honour's statement of what was necessary for the party applying for a stay to discharge the onus borne by that party on such an application. Nor, in my opinion, was there any error in his Honour's conclusion. It is apparent that the claimant was seeking the opinion evidence of Dr. Sholler and to a lesser extent, of Dr. Lewis. Whilst Dr. Sholler's opinion might be of assistance to his defence, the claimant does not need that opinion in order to properly prepare his defence. In those circumstances, no basis was established to stay the proceedings. There was no error in his Honour so concluding. 157 I had referred at the commencement of these reasons to a subsidiary issue, namely whether the treating doctors should have been joined as parties. Given the conclusion to which I have come, it is not necessary to determine that question. 158 In my opinion leave to appeal should be granted and the appeal should be dismissed with costs. 159 HODGSON JA: I agree with the orders proposed by Beazley JA and, subject to what I say below, substantially with her reasons. I would make the following comments on the confidentiality issue and the waiver issue. 160 On the confidentiality issue, the analysis of the authorities undertaken by Beazley JA shows that the principle that an obligation of confidentiality will not be enforced when to do so would impede "ever so slightly" the administration of justice, is not unlimited and unqualified. If it were, it would seem that a party having confidential information would be free to voluntarily give that information to anyone who could be assisted in legal proceedings by the information being given in evidence or even used to obtain evidence. I agree with Beazley JA that there needs to be some matter of public interest beyond the resolution of a civil dispute, and that even then there may be a balancing exercise required in order to determine whether that public interest displaces the obligation of confidentiality. 161 As regards the waiver issue, I would suggest a significant possible qualification to the reasons of Beazley JA. 162 In Standard Chartered Bank of Australia Ltd. v. Antico (1993) 36 NSWLR 87, I discussed a tension that exists between what was said (in a context of legal professional privilege) by Jordan CJ in Thomason v. The Council of the Municipality of Campbelltown (1939) 39 SR 347 at 358-59 (adopted in Benecke v. National Australia Bank (1993) 35 NSWLR 110 at 116) and the case of Wentworth v. Lloyd (1864) 10 HLCas 589, 11 ER 1154. 163 In the former case, Jordan CJ suggested that, whenever a plaintiff seeks to set aside a transaction for undue influence, privilege cannot be relied on to prevent evidence being given of legal advice that the plaintiff had at the time. In the latter case, the plaintiff had sought to set aside the sale of property on the ground of unfairness, and successfully claimed privilege for a communication with his solicitor concerning the transaction; and in the House of Lords, Lord Chelmsford expressed the view, for which this case is considered authority, that no adverse inference (and no application of Armory v. Delamirie (1722) 1 Stra 505, 93 ER 664) could arise from the claim of privilege. 164 In Antico at 94-5, I attempted to reconcile the two cases by suggesting that the true principle was to the effect that, if a party by its pleading or evidence expressly or impliedly makes an assertion about the content of confidential communications between that party and a legal adviser, then fairness to the other party may require that this assertion be considered inconsistent with the maintenance of privilege attaching to the communication, and be taken as a waiver of it. This will usually be the case when a plaintiff alleges that a transaction in which the plaintiff had legal advice was procured by undue influence; but if in a particular case such a plaintiff makes no suggestion of any inadequacy of legal advice or understanding of the legal ramifications of the transaction, but bases the claim entirely on other matters, then privilege might not be waived. Wentworth could then be explained on that basis. 165 It is true that obligations of confidentiality are not the same as legal professional privilege. At common law, obligations of confidentiality are not a basis for excluding relevant evidence, as is legal professional privilege, and obligations of confidentiality are a weaker basis for resisting inspection of subpoenaed documents. But aside from such compulsory Court processes, there is an analogy between the two areas; and I would approach the question of waiver of confidentiality of information obtained by a medical practitioner in much the same way as the question of waiver of legal professional privilege. 166 On that basis, if a plaintiff, by pleadings, particulars or evidence, expressly or impliedly makes an assertion about the content of information obtained by a medical practitioner, then confidentiality of that information may be waived, particularly if the assertion is persisted in after the question of waiver is raised with the plaintiff. 167 In the present case, the plaintiff is making assertions about his medical condition at the time of his treatment by Dr. Sholler and Dr. Lewis, but that is not as such an assertion about information obtained by them about his medical condition: in my opinion, it is not enough that the latter is relevant to the former. 168 However, in my opinion the plaintiff would be making an assertion about information obtained by these doctors about the plaintiff's medical condition if the plaintiff were to call them to give evidence of their observations of the plaintiff, or if the plaintiff were to rely on their observations as recorded in order to support his case that the claimant was negligent. The present indications are that the plaintiff does not propose to call either Dr. Sholler or Dr. Lewis; but there are indications that the plaintiff does propose to rely on their observations of the plaintiff as recorded by them. In particular: (1) On p.11 of McLaughlin & Riordan's letter of particulars dated 22 August 2002, there is reference to "right to left shunting across the VSD, reported by Dr. Sholler on 22 October 1998". (2) In the Chronology of Facts and Assumptions prepared by McLaughlin & Riordan and printed on 24 September 2002, there are references on pp.6 and 11 to reports by Dr. Lewis and on pp.24-26 to reports by Dr. Sholler. (3) On p.7 of the medico-legal report of Dr. Williams dated 20 April 2001, there is extensive reference to reports, comments and findings of Dr. Sholler. (4) On p.6 of the medico-legal report of Dr. Wilkinson enclosed in his letter of 28 December 2002, there is reliance on Dr. Sholler's finding and grading of a heart murmur. 169 In my opinion, these matters could not at present support a declaration that confidentiality has been waived. The case of waiver has not been put by the claimant on this basis either before Campbell J or before this Court, these particular matters have not been drawn to the plaintiff's attention and the plaintiff has not unequivocally maintained that it does rely on those reports and observations of Dr. Sholler and Dr. Lewis as supporting its case of negligence against the claimant. Waiver generally requires appreciation of available alternatives. 170 However, if the matter is squarely put to the plaintiff, my tentative view is that the plaintiff must then either abandon any reliance on the reports and observations of Dr. Sholler and Dr. Lewis as part of its case of negligence against the claimant, including reliance on the items identified above, or else be taken to have waived confidentiality. 171 While it is not inconsistent with maintenance of confidentiality for the plaintiff to make assertions about the plaintiff's medical condition at the time of consultation with these doctors, my tentative view is that it would be inconsistent for the plaintiff to make assertions against the claimant about what these doctors observed and what information these doctors obtained on those occasions, and yet maintain that the information they obtained on those occasions is confidential from the claimant. That stance would involve the inconsistency arising from unfairness identified in Attorney-General for the Northern Territory v. Maurice (1986) 161 CLR 475. 172 STEIN JA: I agree with Beazley JA

Legislation Cited (8)

Medical Practice Act 1992(NSW)

Medical Practice Regulation 2003(NSW)

Compensation to Relatives Act 1987(NSW)

Workers Compensation Act 1926(NSW)

Evidence Act 1995(NSW)

Supreme Court Act 1970(NSW)

Privacy Act 1988(Cth)

Health Records and Information Privacy Act 2002(NSW)

Cases Cited (23)

CITATION: RICHARDS v. ANKUR KADIAN by his Tutor JANAK KADIAN & ORS. [2005] NSWCA 328

A v. Hayden (1984) 156 CLR 532 AG Australia Holdings Ltd v. Burton (2002) 58 NSWLR 464 Allied Mills Industries Pty. Limited v. Trade Practices Commission (No. 1) Ampolex v. Perpetual Trustee Co. (Canberra) (1995) 37 NSWLR 405 at 411 Annesley v. Earl of Anglese (1743) 17 State Tr 1139 Ansley v. Ansley (1973) 12 RFL 93 Apollo Shower Screens Pty. Ltd. & Anor v. Building & Construction Industry Long Service Payments Corporation (1985) 1 NSWLR 561 Ashburton v Pape [1913] 2 Ch 469 Attorney-General (Northern Territory) v. Maurice (1986) 161 CLR 475 Banning v. Wright [1972] 1 WLR 972 Benecke v. National Australia Bank (1993) 35 NSWLR 110 Bolkiah v KPMG [1999] 2 AC 222 (House of Lords) British Steel Corporation v. Granada Television Ltd. [1981] AC 1096 Brown v. Brooks (unreported, 18 August 1988, McClelland J) Calcraft v Guest [1898] 1 QB 759 Carr v. Royal Exchange Assurance Corporation (1864) 34 LJQB 21 Commonwealth of Australia v. Verwayen (1990) 170 CLR 394 Corrs Pavey Whiting & Byrne v Collector of Customs (Vic) (1987) 74 ALR 428 Craine v. Colonial Mutual Fire Insurance Co Limited (1920) 28 CLR 305 D & J Constructions Pty Ltd v Head (1987) 9 NSWLR 118 D v. The National Society for the Prevention of Cruelty to Children [1978] AC 171 Davey v. Bentinck (1893) 1 QB 185 Doe & Ors. v. Eli Lilley & Company Inc & Ors (1983) 99 FRD 126 Dwyer v National Companies & Securities Commission (No. 2) (1988) 15 NSWLR Edmeades v. Thames Board Mills Ltd [1969] 2 QB 67 Egerton v. Brownlow (1853) 4 HL Cas 1; 10 ER 359 Ferris v. Lambton (1905) 22 WN (NSW) 56 Fitzgerald v. F.J. Leonhardt Pty. Ltd. (1997) 189 CLR 215. Frenette v. Metropolitan Life Insurance Co. (1992) 89 DLR (4th) 653 Gartside v Outram (1856) 26 L.J. Ch 113 Harmony Shipping Co SA v. Saudi Europe Line Limited [1979] 1 WLR 1380 Hay v. University of Alberta Hospital (1990) 69 DLR (4th) 755 House v. The King (1936) 55 CLR 499 CASES CITED: Howard v. Odhams Press Limited [1938] 1 KB 1 Hunter v. Mann [1974] QB 767 at 772 Initial Services v. Putterill [1967] 3 All ER 145 Jack Barclay Ltd [1951] 2 KB 252 Kadian v. Richards [2004] NSWSC 382; Kadian v. Richards (by his tutor Kadian) & Ors. v. Richards & Anor (2004) 61 NSWLR 22 Lane v. Willis [1972] 1 All ER 430 Lound v Grimwade (1888) 39 Ch. D. 605 M(A) v. Ryan (1997) 143 DLR (4th) 1 M(N) v. Drew Estate (2003) 230 DLR (4th) 697 Mann v. Carnell (1999) 201 CLR 1 McGrory v. Electricity Supply Board [2003] IESC 45 McGuire v Ferguson & Anor (Supreme Court of New South Wales, Common Law Division, 11 December 2001, Solomon AJ, unreported) Medaris v. Lars Halvorsen & Sons Pty. Ltd. (1943) 44 SR (NSW) 71 Nicholson v. Halton General Hospital NHS Trust [1999] EWCA Civ 1664 (24 June 1999, unreported) Nur v. John Wyeth and Shaw v. Skeet Aung Sooriakumaran [1996] 7 Med LR 371 R v Young (1999) 46 NSWLR 681 Rakusen v Ellis, Munday & Clarke [1912] 1 Ch 831 at 835 Re Morris (Deceased) (1943) 43 SR(NSW) 352 Re Morris (Deceased); Wilkinson v Osborne (1915) 21 CLR 89 at 97 Sargent v. ASL Developments Ltd (1974) 131 CLR 634 St. Louis v. Feleki (1991) 75 DLR (4th) 758 Starr v. National Coal Board [1977] 1 All ER 243 Stoodley v. Ferguson (2001) 93 Alta LR (3d) 78 Swirski v. Hachey (1995) 132 CLR (4th) 122 The Earl of Chesterfield v. Janssen (1751) 28 ER 82 Thomason v. Campbelltown Municipal Council (1939) 39 SR (NSW) 347 Tringali v. Stewardson Stubbs & Collett Ltd (1965) 66 SR (NSW) 335 Watson v. M'Ewan [1905] AC 480 Weld-Blundell v. Stephens [1919] 1 KB 520 Wells v. Paramsothy (1996) 98 OAC 233 Windhill Local Board of Health v Vint (1890) 45 Ch. D. Wyeth & Brother Ltd [1996] 7 Med LR 300 Yango Pastoral Co. Pty. Limited v. First Chicago Australia Ltd. (1978) 139 CLR 410 P Feltham, D Hochberg and T Leech (eds), "Spencer Bower's Estoppel by Representation" (4th edn), London: Butterworths, 2004

(1984) 156 CLR 532

(2002) 58 NSWLR 464

(1995) 37 NSWLR 405

(1985) 1 NSWLR 561

(1986) 161 CLR 475

(1993) 35 NSWLR 110

(1990) 170 CLR 394

(1987) 74 ALR 428

(1920) 28 CLR 305

(1987) 9 NSWLR 118

(1997) 189 CLR 215

(1936) 55 CLR 499