By motion filed in July 2016 Mr Shaw sought orders setting aside a subpoena for production of documents issued to his solicitors Commins Hendriks Pty Ltd, on the grounds that the subpoena involved an abuse of process, was oppressive and amounted to a fishing expedition.
The motion was resolved by consent orders later made, other than in relation to a claim for legal professional privilege in respect of certain documents which the defendants sought to inspect.
It was Mr Shaw's case that the documents had been either "initiated or gathered together for the purpose of the litigation" by his solicitor, that they were privileged; and that this privilege had not been waived. Whether there had been such a waiver, was in issue.
Shaw v Oakdale Junior Motorcycle Club Inc [2017] NSWSC 822 | Case summary | Zoe
It was common ground that it was necessary for me to inspect those documents, which had earlier been produced to the Court, in order to resolve the issue as to privilege. They were identified to be costs agreements and file notes.
These proceedings were commenced in March 2016. They are pursued by Mr Shaw's tutor, his father. Damages are sought for personal injuries which it is claimed Mr Shaw suffered as the result of the defendants' negligence, when he was involved in a collision while participating in a motocross event in August 2004, when he was aged 19.
It is claimed that Mr Shaw's motorcycle was clipped by another participant in the event, as he entered the "double jump", with the result that he fell and was struck by other participants, suffering very serious injuries and ongoing disabilities. They were identified to include brain damage, left sided hemiparesis, closed head injury, quadriparesis, anxiety and depression, ongoing problems with movement, walking, speech, strength and co-ordination, which had left him wheel chair bound, as well as suffering problems with reading, spelling, sleeping, pursuing work, engaging in social and recreational activities and undertaking domestic tasks.
Both the statement of claim and the defences raise the issue of whether the proceedings have been brought within time. The defendants contend that Mr Shaw's claim is statute barred under the Limitation Act 1969 (NSW). When Mr Shaw's cause of action was first discoverable is in issue.
In accordance with clause 28 of the NSW Supreme Court's Practice Note CL 5, which requires a plaintiff to serve an evidentiary statement on a defendant by the first direction hearing, evidentiary statements by both Mr Shaw and his father have been served.
In his statement, Mr Shaw described having been transported to Liverpool Hospital unconscious after the collision; his dependent state on being discharged from the Brain Injury Rehabilitation Unit in October 2004, when he required 24 hour care, which he described; then being unable to communicate, other than by indicating "yes" by eye blink; having to be fed via a nasal tube; and having limited functional movement, which he also described.
Mr Shaw also explained the improvement which he began experiencing after some three years; his assessment at a residential rehabilitation centre at Albury in October and November 2006; and his further 2 week stay at that centre in 2009. He also described the rehabilitation which he then pursued and the progress which he achieved; how his condition had stabilised; and that his symptoms have not improved since. He also described the ongoing consequences of his conditions, which required that he receive constant supervision from his father and friends. He also said:
"Prior to a discussion with my Solicitor on or about 5 August 2015 I was not aware that I had any entitlement to compensation as a consequence of my accident. On or about 5 August 2015 I was informed about the opinion of Dr White as was contained in his report dated 5 August 2015."
Mr Shaw's father's evidentiary statement corroborated various aspects of Mr Shaw's account. His father also said:
"93 Because of the seriousness of Russell's injury I focused my sole attention on his recovery as is set out earlier in this statement.
94 I first considered obtaining advice in relation to any legal entitlements Russell may have to compensation after it was mentioned to me by a family friend Jessica Boatwright who was at that time employed by Commins Hendriks Solicitors. This was in early 2012.
95 Russell was obviously unable to make any decision concerning his legal entitlements because of the extent of his injuries in particular his brain injury.
96 I first attended the offices of Commins Hendriks Solicitors on 18 April 2012 at which time I had a conference with Geoffrey John Potter. At that time I did not know whether Russell had any entitlement to compensation however I requested that Mr Potter investigate the position on Russell's behalf.
97 Mr Potter requested that I obtain information regarding the regulations applicable to race tracks at the time of Russell's accident because of my involvement with the Wagga Wagga Sports Motorcycle Club. I was unable to obtain any information from that club as I was told its records had been destroyed in a flood.
98 I first became aware that Russell may have an entitlement to compensation when I read the report of Dr Tim White dated 5 August 2015. I read that report on or about 5 August 2015."
The purpose of such evidentiary statements is to put the defendants on notice of the basis of the plaintiff's case, so that what is claimed can be understood and responded to. Clause 29 of the Practice Note thus requires that within 28 days of the receipt of the evidentiary statement, the defendant serve on the plaintiff a statement of issues in dispute, which sets out concisely those facts which the defendant intends to establish in respect of each issue in dispute. The defendants have not served such a statement, but the first to third defendants sought and were provided with particulars of the claim, including as to the date on which it was alleged that Mr Shaw and his father first became aware that his injuries were allegedly caused by their fault.
The answer provided was that they became aware of this on receipt of the 5 August 2015 expert report of Dr While, which was then served on the defendants. That report goes to liability.
There has been no application for separate determination of the limitation question. Nor have directions yet been given under Part 31 of the Uniform Civil Procedure Rules 2005 (NSW), as to the service of witness statements or other evidence by any of the parties.
The subpoena served on Mr Shaw was framed in the widest of terms, requiring amongst other things the production of:
"2. Copies of all costs agreements entered into between Commins Hendricks Pty Ltd (CH), any of its directors or principals, any of its employed solicitors, including Mr Geoffrey Potter or Ms Cassandra Kew, or any other employee of CH on the one hand and by or on behalf of Mr Russell Greg Shaw on the other hand; and
3. Copies of all correspondence, including letters, emails, facsimiles, notes of conversations and any other documents evidencing communications passing between CH, any of its directors or principals, any of its employed solicitors, including Mr Geoffrey Potter or Ms Cassandra Kew, or any other employee of CH on the one hand and Mr Russell Greg Shaw or any of his personal representatives on the other hand in relation to his alleged accident on 22 August 2004;
4. Copies of all correspondence passing between CH, any of its directors or principals, any of its employed solicitors, including Mr Geoffrey Potter or Ms Cassandra Kew, or any other employee of CH on the one hand and any other solicitor currently or previously retained by or on behalf of Mr Russell Greg Shaw on the other hand in relation to his alleged accident on 22 August 2004; and"
All of those communications could not conceivably be relevant to the question of whether Mr Shaw's claim is statute barred, but some of them plainly are, including the disputed documents.
It is common ground that the relevant limitation period for personal injury claims such as that pursued by Mr Shaw is provided in Part 6 of the Limitation Act. Sections 50C and 50D relevantly provide:
"50C Limitation period for personal injury actions
(1) An action on a cause of action to which this Division applies is not maintainable if brought after the expiration of a limitation period of whichever of the following periods is the first to expire:
(a) the 3 year post discoverability limitation period, which is the period of 3 years running from and including the date on which the cause of action is discoverable by the plaintiff,
(b) the 12 year long-stop limitation period, which is the period of 12 years running from the time of the act or omission alleged to have resulted in the injury or death with which the claim is concerned.
Note.
The 12 year long-stop limitation period can be extended by a court under Division 4 of Part 3.
….
50D Date cause of action is discoverable
(1) For the purposes of this Division, a cause of action is discoverable by a person on the first date that the person knows or ought to know of each of the following facts:
(a) the fact that the injury or death concerned has occurred,
(b) the fact that the injury or death was caused by the fault of the defendant,
(c) in the case of injury, the fact that the injury was sufficiently serious to justify the bringing of an action on the cause of action.
(2) A person ought to know of a fact at a particular time if the fact would have been ascertained by the person had the person taken all reasonable steps before that time to ascertain the fact.
(3) In determining what a person knows or ought to have known, a court may have regard to the conduct and statements, oral or in writing, of the person.
…"
The meaning of s 50D was considered Baker-Morrison v State of New South Wales [2009] NSWCA 35. It being the defendants who contend that Mr Shaw's claim is statute barred, the onus falls upon them, as the moving parties on that claim, to establish that an issue does arise in relation to the limitation period: Baker-Morrison at [14].
To meet that obligation the defendants relied on the evidentiary statements filed by Mr Shaw and his father. They both there say that they did not understand until 2015, that he had the rights which are sought to be pursued by the proceedings commenced in 2016.
In Baker-Morrison the plaintiff, being a minor, was a person under legal incapacity. The result was that those proceedings could only be commenced by a tutor and the tutor could not commence proceedings except by a solicitor: see at [44] and UCPR, r 7.14. In the result, it was concluded as to s 50D(1)(c) that:
"To the extent that par (c) requires an assessment of the seriousness of injury sufficient to justify the bringing of proceedings, coherence with the broader statutory framework requires that the person have available to him or her relevant legal and medical information to allow an informed professional judgment to be made."
In that case the "relevant person" was the minor's tutor, her mother. This approach was followed in State of New South Wales v Gillett [2012] NSWCA 83 at [93] - [104] and [127] - [131].
Mr Shaw was not, however, a minor at the time of the accident. Whether, given the nature of the injuries which he suffered and their consequences, he is also a person under legal incapacity and thus requiring a tutor has not, as yet at least, been pursued as an issue by the defendants. In the result, the provisions of s 50F, which deals with the effect of disability on a limitation period, has not been raised in Mr Shaw's case. Such matters depend on what, in due course, medical records, reports and perhaps other evidence reveals.
That the question of whether Mr Shaw has a legal incapacity will arise as an issue to be determined in the proceedings is thus not, as yet, clear. If it does, its resolution will have an impact on the question of who the "relevant person" for the purpose of s 50D is in Mr Shaw's case, he or his father.
It was not in issue, however, that given what is disclosed by the evidentiary statements they have each provided, that this does not make a practical difference for the waiver issue which now has to be determined. That is because both Mr Shaw and his father have explained in their statements, that they both arrived at the relevant state of mind, at similar times.
The defendants contended that the statement of claim itself revealed that the substance of legal advice received was relied on Mr Shaw's case, in order establish that the proceedings had been commenced within time. The result was that privilege had been waived: Commissioner of Taxation v Rio Tinto Ltd (2006) 151 FCR 341 at [47]. Such waiver arises when the party claiming privilege either makes an assertion about the contents of a confidential communication, or a communication which necessarily lays the communication open to security: DSE Holdings Pty Ltd v Interton Inc (2003) 127 FCR 499 at [58]. This was such a case.
The defendants also relied on the conclusions reached by Fagan J in Boorman and Ors v Glaxo Wellcome Australia Pty Ltd [2017] NSWSC 576 in relation to a claimed waiver of legal. His Honour held at [41] - [43]:
"41 The plaintiffs are prosecuting claims for extension of time which involve positive assertions that they did not acquire knowledge of matters essential to their respective causes of action over protracted intervals during which they were under legal advice with respect to those very causes of action. I consider this a clear case of issue waiver.
42 There would be obvious unfairness in the plaintiffs relying upon their witness statements, which are silent as to any advice from their solicitors and as to any instructions provided to the solicitors over the relevant intervals, whilst denying to the defendant inspection of documents which came into existence during those times and would evidence or constitute communications which may contradict the impression conveyed by the witness statements. Informed by that consideration of unfairness I find that the plaintiffs' advancement of their claims for extension of time are inconsistent with their objection to produce for inspection the otherwise privileged documents caught by the subpoenas.
43 In submissions dated 1 April 2016 in opposition to the defendant's original notice of motion seeking access to the subpoenaed documents, the plaintiffs relied upon the "abject silence" of their witness statements with respect to any solicitor client communications during the period critical to their state of knowledge about causes of action. The plaintiffs asserted that such "abject silence" could not constitute implied waiver of privilege. The submission involved a misconception of the law relating to issue waiver. The conduct inconsistent with maintaining the privilege is the advancing, by pleading and by a claim for relief, of a case which depends upon the proposition that relevant knowledge was not acquired through communications with solicitors. The position would be the same if no statements had been served."
For Mr Shaw it was accepted that privilege may be lost or waived, if a client or party acts inconsistently with the maintenance of a claim for privilege: Mann v Carbnell (1990) 201 CLR 1. In written submissions of 3 May 2017 it was also accepted at [16] that paragraph 42 of the statement of claim "may bring into issue when the plaintiff became aware of a possible entitlement to compensation for personal injuries".
It was contended, however, that the statement of claim did not put in issue the legal advice which had been received, relying on Sackar J's observations in Australian Institute of Fitness Pty Limited v Australian Institute of Fitness (Vic/Tas) Pty Limited (No 2) [2015] NSWSC 994 at [26] - [35].
In the result, it was submitted that any implied waiver of privilege did not extend beyond documents "relating to the design of the track band hence to the fact that the injury was caused by the fault of the defendants": at [19].
Further, that there had been no implied waiver of privilege and that maintenance of the claim was not inconsistent with "any documents disclosed": at [22]. It was also submitted that current practice dictates that the limitation question be determined at trial. In the result, the defendants will have more than adequate notice of anything that might involve a waiver of privilege, and that the subpoena serves no useful purpose as, absent a waiver of privilege, the documents could not be made available to them.
In the defendants' reply submissions access to the costs agreement, as well as to the file notes, was pressed on the basis that what was said in the evidentiary statements raised questions of both actual and constructive knowledge. When Mrs Shaw's solicitors were first retained and what they were retained to do was thus relevant to the limitation question, it raising as it did whether it ought to have been known, more than three years before the proceedings were commenced, that the element of fault and that Mr Shaw's injures were sufficiently serious to justify commencing proceedings.
In Australian Institute of Fitness Pty Limited, Sackar J explained at [30] that privilege is not lost simply because a party raises an issue and that a party cannot be forced to waive privilege on account of the opposing party making assertions about, or seeking to put in issue, the opposing party's state of mind. At [32], however, his Honour turned to implied waiver, referring to Commissioner of Taxation v Rio Tinto Ltd (2006) 151 FCR 341 at [53]. There it was concluded that "a mere reference to legal advice will not amount to disclosure", but that there will be waiver, where, "in order to establish a particular right, claim, or defence a party who previously has been legally advised, or has provided advice, needs to show that the advice so given did, or did not, have a particular character": Australian Institute of Fitness Pty Limited at [32]; Rio Tinto at [53].
So approaching the claim for privilege, I am satisfied that in Mr Shaw's case, given that the limitation question is advanced by what is revealed in the evidentiary statements, namely, that prior to the discussion with his solicitors on or about 5 August 2015, neither Mr Shaw nor his father were aware that he had any entitlement to compensation as a consequence of his accident, privilege in the documents in issue was thereby necessarily waived. That is because the limitation issue depends both on the character of the legal advice given and when it was given.
Like in Boorman, statements are inconsistent with the maintenance of the claim for privilege in the disputed documents, given the limitation issue which the statement of claim itself raised. That issue will have to be decided on the pleaded defence.
Resolution of when the "relevant person" came into possession of the legal information which permitted an informed judgment to be made about the relevant introduction, will depend not only on the evidence of Mr Shaw and his father, but on information which the disputed documents provide about their evidence on that issue. Maintenance of the privilege claimed is inconsistent with the pleadings Mr Shaw has advanced and the evidence he has served, as to when the requisite knowledge was acquired.
The suggestion that those are matters which should not be determined before trial, cannot be accepted. That would be inconsistent with the requirements of s 56 of the Civil Procedure Act 2005 (NSW), which requires the Court to exercise its powers to give the effect to the overriding purpose there specified, namely the just, quick and cheap resolution of the real issues in the proceedings. It would not be either quick or cheap, to defer determination of the waiver question until trial, when its resolution could only result in further costs and delay. Nor would it accord with what the dictates of justice requires in the circumstances which have arisen: Civil Procedure Act, s 58. Nor would that involve an efficient use of the Court's resources, given what has been argued on the motion: Civil Procedure Act, s 56.
[2]
Orders
For these reasons the orders which Mr Shaw presses must be refused. Costs of the motion are reserved.
[3]
Amendments
26 June 2017 - typographical error on coversheet
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Decision last updated: 26 June 2017