State of Victoria v Davies [2003] VSCA 65

2. I have had the advantage of reading in draft the reasons for judgment prepared by Batt, J.A. Subject to one qualification, I agree in them and in the orders that his Honour proposes.

5. The qualification, which may be no more than a clarification, is that I should like to reserve the question whether, in some circumstances and to some extent, a power such as that conferred by Rule 34A.19 of Chapter I of the County Court Rules authorizes a direction precluding the tendering of admissible evidence.[1] It is clear that that rule could not sustain the order made by the learned primary judge in the present case. Similarly, even if the better view is as stated by Batt, J.A. at [35], there may be some circumstances where it is too late to permit an undiscovered document to be used.

8. There is usually no occasion to set aside an interlocutory order that has been overtaken by a judgment given after trial or by an order like that made on 1 November 2002; but in this case it is appropriate to set aside the order made on 15 October 2002 and to extend the time limited for compliance with paragraph 10 of Judge Harbison's directions because they will have continuing relevance for the rehearing.

13. By originating motion filed on 23 April 2001 in the County Court at Melbourne the respondent as plaintiff sued the appellant for leave under s.135A(4)(b) of the Accident Compensation Act 1985 to bring proceedings for damages for personal injuries claimed to have arisen out of or in the course of her employment with the appellant as a school teacher.

16. At a directions hearing on 3 December 2001 Judge Harbison made various interlocutory orders, including orders for the filing and service of affidavits

exhibiting medical and "other material"[2] upon which the parties intended to rely, an order for discovery by the appellant by categories as well as discovery of all documents on which it sought to rely at trial and all documents injurious to its case or the respondent's case, and an order fixing the proceeding for trial on 15 October 2002. But the presently important order is that numbered 10, by which, so far as material, each party was required to serve a court book on or before 8 October 2002 and file the book on the day of trial, such book to contain the documents specified in Rule 34A.35(4)(a), (b) and (c) of Chapter I of the County Court Rules as well as "a list only of any documents a party intends to tender in evidence or which a party otherwise intends to use at trial[3] pursuant to Rule 34A.35(4)(d)".

20. Order 34A is headed "Case Management". Rule 35 is found in Part 7 of that Order, which is headed "Court Book". The proceedings to which the rule applies include applications by originating motion under s.135A of the Accident Compensation Act. The rule enables the parties to agree to file a joint court book, but that was not availed of in this case. Paragraph (4) of the rule, so far as material, provides:

"Unless the Court otherwise orders, a court book ... shall contain and contain only - (a) an index of its contents; (b) a copy of the writ or originating motion; (c) a copy of the latest version of any pleadings served ... and particulars of any such pleading ... and any ... order or request by a party for particulars; (d) a list of any documents a party intends to tender in evidence or which a party otherwise intends to use at the trial or at the hearing of the application (as the case requires)."

Paragraph (5), so far as material, requires each party to serve a court book not less than seven days before the hearing of the application and to file it at the commencement of that hearing.

25. On 20 September 2002 the Registrar confirmed the trial date. The respondent served her court book on Tuesday 8 October. The appellant served its court book on Friday 11 October, which was three days late. This Court was informed that in fact the documents themselves were not served but only the index[4], a matter which appears to have occasioned no difficulty save with respect to the eighth and last document listed, which was described as "Surveillance video of the plaintiff brought into existence for the dominant purpose of litigation". A video (or, in full, a video recording or videotape) is a document for the purposes of the County Court Rules by virtue of paragraph (e) of the definition of "document" in s.38 of the Interpretation of Legislation Act 1984.

28. The hearing of the proceeding commenced on Tuesday 15 October. At the commencement of the hearing the appellant sought an extension of time for service of its court book, proffering an amended index. In that index Item 8 was expanded to include five sub-items listing videos said to be dated on certain specified dates between 23 April and 9 October 2002 and taken in various specified suburbs of Melbourne.

31. By order made on 15 October 2002 the primary judge granted an extension of the time "on condition that the [appellant], on or before 4 p.m. on 15 October 2002, make available for inspection by the [respondent] each of the surveillance videos referred to in paragraph 8 of the [appellant's] amended Court Book index", and ordered that otherwise the appellant's application was refused.

34. The appellant did not make available for inspection by the respondent any of the surveillance videos within the time specified or at all.

37. Late on 16 October, during cross-examination of the respondent, senior counsel for the appellant foreshadowed that he proposed to put to the respondent the surveillance videos referred to in the amended index to the court book. Counsel for the respondent objected and, after argument, his Honour refused to permit the appellant to use the surveillance videos in cross-examination. It would seem, and the agreed summary states, that his Honour so ruled on 17 October 2002, though the authenticated order states that on 16 October 2002 the appellant's further application for leave to use at the trial the surveillance videos was refused.

40. The hearing proceeded, concluding, it would seem, on 18 October. On 1 November his Honour published reasons for what were described as Rulings Nos.1 and 2 and also his reasons for judgment, in which he found that the respondent suffered from a severe long-term mental disturbance or disorder. He gave the respondent leave to commence proceedings and ordered the appellant to pay costs.

43. In order that his Honour's orders may be properly and fairly considered it is, I think, necessary to give the content of his two rulings at some length. In the first ruling his Honour recorded that, on 15 October 2002, senior counsel for the appellant had sought leave to extend the time limited by paragraph 10 of the order of Judge Harbison for the appellant to serve a court book. Paragraph 10 being an order fixing time, no doubt the application made to his Honour, however described, was one for an extension, pursuant to Rule 3.02(1), of time fixed by an order. Paragraph (2) of that rule enables the Court to extend time before or after the time expires whether or not the application for extension is made before the time expires.

46. His Honour began his detailed reasons for the order which he had pronounced by stating that the essential issue was whether the leave sought should only be granted on condition that the appellant provide an opportunity for the respondent to inspect the material before the hearing commenced. After setting out the facts he raised the question whether the privilege claimed for the surveillance material, which his Honour seemed to accept, had been waived by the listing of the material in the index as material the appellant intended to tender or otherwise use at the hearing of the application, but stated that it was unnecessary for him to decide that question, though he took into account "the inclusion of the material" in the appellant's court book as a relevant matter. In passing, I should, with respect, have thought that the listing of a document in an index of the court book was not the inclusion of the document itself in the court book. [5]

49. His Honour seems to have accepted that the appellant effectively sought an extension of only two or three days and certainly stated that the primary consideration must always be the attainment of justice between the parties. But he then stated that the primary issue raised by the application was whether, in the circumstances of the non-compliance with the order, it was appropriate for the appellant to refuse to make available the surveillance videos for inspection by the plaintiff notwithstanding the indication it had given that the material would be either tendered in evidence or otherwise used at trial. He then turned to the submission for the appellant that the nature of the present proceeding was such that, in order for the appellant to have a fair trial, it was necessary that it be able to test the credit of the respondent in circumstances where she had no prior notice of the content of the surveillance material taken of her, for which the appellant relied on Palmer Tube Mills (Aust.) Pty. Ltd. v. Semi[6]. The judge expressed the view that the submission went much further than the statements of principle in that case. He next referred to the appellant's solicitor's reliance upon the Consolidated Practice Note - Operation and Management of the County Court Civil Lists (Melbourne Registry) dated 9 April 2001 issued by the Chief Judge[7], in the course of which it is stated in relation to applications under, amongst others, s.135A:

"Surveillance reports and films on which a party intends to rely are not required to be exhibited to an affidavit sworn and served by a party, unless such surveillance reports or films have been shown to any medical practitioner whose report is exhibited to an affidavit sworn and served by that party."

His Honour stated that it was not necessary or appropriate to express a view on the validity of the Practice Note, though he did consider it appropriate to take account of its requirements as well as "issues relating to the disclosure of surveillance material prior to its use in Court and what [effect] that might have on whether justice would be done between the parties at the hearing". He then referred to a statement by Hayne, J., made in the course of argument on an application for special leave to appeal from the decision of the Full Court of the Supreme Court of Western Australia in Boyes v. Colins[8], decrying a suggestion that a party should be able to hold back surveillance film. Whilst acknowledging that it was not appropriate to rely upon statements of justices during argument of special leave applications[9], his Honour said that Hayne, J.'s remark was consistent with the approach of courts in recent times to take surprise and the element of "ambush" out of the litigation process. He stated that provisions of the Accident Compensation Act relating to "serious injury" applications (particularly the s.135A(2DA), (2DC) and (2DD)) and the Ministerial Directions published pursuant to s.135AB made it clear that the parties should make full disclosure of material relied upon at the earliest stages. He referred to Boyes v. Colins, where the Full Court had held that a defendant would not be caused injustice if it were required to produce surveillance videos before trial.

54. His Honour then said it was unnecessary for him to state a concluded view "in relation to these matters" for the purposes of the preliminary application, though he considered it appropriate and necessary for him to take the issue of pre-trial disclosure of surveillance material into account in exercising his discretion. His Honour then concluded his ruling as follows:

"Taking account of the explanation given by the [appellant's] solicitors for the non-compliance with the order, the lack of any real prejudice that flowed from the delay in complying with the order until 10 or 11 October 2002, and considering whether, in the circumstances, the fair trial of the proceeding [between] the parties would be advanced by disclosure of surveillance material which the [appellant] had indicated it would tender in evidence or otherwise rely upon at the trial, I determined that the leave sought by the [appellant] should only be granted on condition that disclosure of that material first be made to the [respondent] and that otherwise leave should not be granted."

58. His Honour began his second ruling by stating that at the time he made the first ruling he anticipated that, if the material was not disclosed by the appellant, then it would be unable to use the material at trial, by which he clearly meant the hearing of the application under s.135A. But counsel for the appellant had submitted that, notwithstanding the earlier ruling, he was entitled to show the respondent surveillance material and, if leave for that were necessary, sought that leave. His Honour stated that it was his view that his decision on the earlier application was determinative of the later application and that that remained his view. Nevertheless, he had permitted the application to be fully argued. From the cross-examination of the respondent both before and after the ruling his Honour had reservations as to the possible usefulness of the surveillance material, though he acknowledged that, as a result of the ruling, the appellant did not have the opportunity to play it during cross-examination of the respondent.

61. His Honour set out and dealt with the several submissions made to him for the appellant. It was contended for the appellant that, irrespective of the rules of court and the orders of Judge Harbison, the appellant had a substantive right to adduce the evidence, that it was entitled to claim privilege and that privilege was not waived until the material was shown. In any event, it was submitted, the appellant was not specifically precluded by the Rules or her Honour's order from using the surveillance material. Alternatively, if the appellant required leave to use the material notwithstanding any failure to comply with the Rules or the order of the Court, it was appropriate for it to be granted. In elaboration, counsel for the appellant submitted to his Honour that Rule 34A.29, which provides the sanction of forbidding the tender of a document where a party fails to include it in its court book, applied in ordinary proceedings but not proceedings to which Rule 35 applied as the latter required the court book to contain only a list of documents. Whilst appreciating the force of the submission, his Honour was of the view that a failure to comply with Rule 35 would necessarily carry with it similar consequences and that the court might require the party to comply on such terms as the court considered just "as a condition of that party's further participation in the proceeding". Counsel for the appellant next submitted that paragraph 3 of the order of Judge Harbison, which required the appellant to file and serve an affidavit "exhibiting medical and other material upon which [it] intends to rely" was, so far as it related to surveillance evidence, beyond power, in the absence of a specific statutory provision authorising the court to inhibit, prior to trial, the appellant's right to legal professional privilege. Alternatively, counsel submitted that the matter was governed by Part 9 of the Practice Note of the Chief Judge, set out earlier in these reasons, though counsel's broadest submission did go to the extent of contending that even the Practice Note was an unwarranted restriction on a party's right to present its case. His Honour did not deal with counsel's submission as to paragraph 3 of Judge Harbison's order but simply pointed out that the portion of the Practice Note was limited to orders for the service of affidavits exhibiting medical and expert reports on which a party seeks to rely and was not, by its terms, directly relevant to a document required to be listed in a court book. With regard to whether there had been an implied waiver of legal professional privilege his Honour stated the test as being whether the conduct of the party claiming the privilege was inconsistent with the continued assertion of it. He said that the inclusion of the particular surveillance videos in the appellant's court book index as documents it "intends to tender in evidence or ... otherwise intends to use at the trial" was a use or reference to that material which was inconsistent with the continued maintenance of the privilege and that it would be unfair to allow the appellant in those circumstances to refuse inspection. It was the appellant's conduct in categorising the documents as the subject of such intended tender or use, and not simply the listing of the documents, which, in his Honour's view, was inconsistent with the continuation of the privilege. But his Honour immediately said:

"It is likely, in accordance with decisions relating to other material required by a party to be disclosed to the opposite party before trial by operation of the Rules or by an order of the Court, that the privilege is maintained until the document is used in evidence, save to the extent required for the purposes of the litigation."

I confess that I am uncertain what his Honour meant by that paragraph and whether it is inconsistent with his Honour's immediately preceding views. Counsel before us could offer no compelling resolution of the problem. Perhaps the concluding words of the paragraph mean that in the circumstances of this case there was a waiver.

66. His Honour then quoted passages from the cases relied on before him for the appellant, starting with Palmer Tube Mills and going on to cases where it had been stated that a plaintiff claiming damages for personal injuries should be cross-examined without the benefit of knowing what material might be produced to test the plaintiff's veracity. On the other hand, his Honour said, there were decisions, and court procedures, which have increasingly required disclosure of each party's case to prevent "ambush", referring to Boyes v. Colins and the discussion during the application for special leave to appeal from that decision. There then follows a paragraph as to the possibility that a plaintiff who has prior knowledge of video material might tailor his or her evidence. But I do not set it out or summarise it because I think something has gone wrong with the text, so that it does not express what his Honour meant to convey.

"In my view, there would be no injustice to the [appellant], if it were not permitted to cross-examine the [respondent] without the [respondent] first having had the opportunity to view surveillance material the [appellant] indicated it wished to tender in evidence or otherwise use at the trial. It is primarily for these reasons I maintained my earlier decision and refused the subsequent application ...."

73. By leave granted on 13 December 2002 the appellant appeals against the order made on 15 October 2002 and the order made[10] on 1 November 2002. The hearing of the appeal commenced on 27 March 2003. The respondent delivered, on 25 March and thus out of time, a notice of contention. The Court indicated at the commencement of the appeal that counsel for the respondent would be permitted to argue the substance of the notice as well as whether the respondent should be entitled to rely on it, and that the Court would rule on that in the course of giving its judgment on the appeal.

76. There are essentially two grounds in the notice of contention: first, that the appellant by consenting to the order of Judge Harbison (and not subsequently seeking variation or amendment of it) agreed to give notice of and disclose to the respondent all documents it intended to tender or otherwise use at trial, and, secondly, that the attempted use by the appellant of video surveillance material was a breach of that order and irrelevant to considerations of waiver and privilege. In my opinion, a retrospective extension of time for the filing and service of the notice of contention should be refused for a number of reasons. The argument as to consent was not put below, though Mr. Forrest for the appellant conceded before us the fact that the order was by consent. Moreover, the ground as to consent is without merit; for, the substantial aspect of consent being consent to disclosure, the only paragraphs of Judge Harbison's order that are relevant are paragraphs 3 and 4, which, as will appear much later, I consider do not and in any event could not refer to material the subject of legal professional privilege. The second ground is far from clear. It seems to allege in part that the attempted use of the video surveillance material was in breach of paragraph 4 of her Honour's order (paragraph 10 already being raised by the appeal), but the prohibition in that order did not apply, for the reason just stated, to material the subject of the privilege. I would add that if and in so far as the notice of contention seeks to rely on non-compliance with paragraph 6 of her Honour's order, which relates to discovery, the better view, as explained later, is that such a non-compliance does not preclude the tender of the documents. In any event, the service of the amended court book index gave the respondent a specification of the surveillance documents relied on and an indication that privilege was claimed for them. Finally, the appellant's affidavit of documents is not in the Appeal Book.

79. I turn now to the challenge to the order of 15 October 2002. In making that order his Honour was exercising the discretionary power conferred by Rule 3.02(1). Further, in so doing, he was authorised by Rule 1.14(1)(b) to impose any term or condition he thought fit. That does not, of course, mean that the judge had an unlimited and unreviewable discretion to impose any condition he liked, even one having nothing to do with the matter in hand. In my opinion, it is plain that his Honour's discretion miscarried, for the condition he imposed on the grant of the extension was entirely irrelevant to - that is, had no logical link with - the extension of time sought and the issues raised by the application for it. The condition was imposed for an extraneous purpose, namely to force the appellant to take a step which his Honour considered conducive to the fair trial of the proceeding but which was quite unrelated to the appellant's being three days late in complying with paragraph 10 of Judge Harbison's order. The purpose would not, and could not, have been achieved if the appellant had not been out of time. That the consideration of the application went amiss is confirmed by his Honour's early statement of what was "the essential issue" and his later reference to "the primary issue" as being whether, in the circumstances of the non-compliance with the previous order, it was appropriate for the appellant to refuse[11] to make the surveillance videos available for inspection by the respondent. With respect, that was not an issue at all. Rather, factors requiring consideration on an application for an extension of time include matters such as the length of the extension sought, the reason for needing it, any prejudice that granting it will cause to the other party, the effect of granting it upon the proceeding and, possibly, other cases in the list, and ways of mitigating any such prejudice or any adverse effect. Here, the extension sought was of three days at most and did not extend to the date of trial, and, although his Honour seems not to have regarded the reason for non-compliance with paragraph 10 of Judge Harbison's order as very satisfactory, there was most significantly, as he found, a lack of any real prejudice to the respondent.

82. It is unnecessary to consider other grounds relied on by the appellant for challenging the judge's exercise of discretion, though I note that orally it was submitted that, without an explicit finding of waiver of privilege, the condition was incompatible with the privilege.

85. Although this Court exercises much restraint in interfering with interlocutory discretionary orders in matters of practice and procedure, as the order of 15 October was (though it affected matters of substance), there was here a clear miscarriage of discretion coupled with a significant effect on the conduct of the hearing of the application under s.135A. (It is the latter feature which makes clear the entitlement of the appellant to base a challenge to the order of 1 November determining that application upon the error in the order of 15 October. Compare Gerlach v. Clifton Bricks Pty. Ltd.[12]). This Court must therefore re-exercise this discretion. In the circumstances set out earlier and in light of the relevant factors stated earlier, I would grant retrospectively an unconditional extension of time to 11 October 2002.

88. The appellant in its amended notice of appeal seeks no order in terms affecting the order made on 16 October 2002, but it does rely on what it submits is the erroneousness of that order in its challenge to the order of 1 November 2002, as it is entitled to do.[13] To succeed it is not enough for the appellant to establish error in the order of 16 October: it must establish also that the rejection of cross-examination on the videotapes occasioned a substantial wrong or miscarriage: Rule 64.23(2) and (4) of Chapter I of the Rules of the Supreme Court; cf. Gerlach v. Clifton Bricks Pty. Ltd.[14].

91. Although the appellant challenged the order of 16 October on other grounds as well, it is sufficient to consider two grounds or pairs of grounds only. First, it is said that the refusal to allow the appellant to use any of the surveillance videos during cross-examination of the respondent was affected by his Honour's earlier and, as I would hold, erroneous order of 15 October (ground (a)). Linked with that is the ground that the requirement that the appellant disclose the surveillance videos to the respondent as a condition of its use of them in cross-examination was imposed for the improper purpose of giving effect to the judge's opinion that there should be pre-trial disclosure of video surveillance, notwithstanding that the County Court Rules impose no such requirement (ground (da)). (The reference to disclosure as a condition of use is to be understood as prior disclosure, as is apparent from the opening and closing sentences of his Honour's second ruling.) Now, although his Honour entertained the submission or application by senior counsel for the appellant that he, counsel, was entitled, or should have leave, to use the surveillance material in cross-examination and gave reasons responsive to counsel's arguments, it is clear, in my view, that the principal ground for his Honour's order of 16 October was his view, set out early in his second ruling, that his decision on the earlier application was determinative of the later application. The importance of the earlier decision to the later decision is confirmed by his Honour's speaking, in concluding his second ruling, of maintaining his earlier decision. Ground (a) is accordingly made out.

94. It was a thesis of the reasons which his Honour went on to give (as it was of the first ruling) that there should be pre-trial disclosure of video surveillance material. It is clear from those reasons that his Honour regarded non-satisfaction of the condition imposed by the order of 15 October as critical. Ground (da) is made out.

97. Subject to the question whether a substantial miscarriage was occasioned, what has been written so far would be sufficient to dispose of this appeal. But it appears from the submissions of counsel that several County Court judges have taken the view that pre-trial disclosure can be required of surveillance videotapes the subject of legal professional privilege, and it is desirable that the correctness of that view be considered by this Court. Indeed the point could arise on a re-hearing of the present respondent's application under s.135A. Accordingly, it is desirable to deal with a pair of grounds relating to privilege. They are, with slight editing, that the judge erred in finding that the appellant had waived privilege (ground (b) and that he had no power to require the appellant to disclose the surveillance videos to the respondent prior to and as a condition of their use in court (ground (c)). It was accepted before us, as below, that the surveillance videotapes were, from their description and indeed their very nature, the subject of legal professional privilege.[15] They were also relevant and, if proved, admissible according to ordinary principle. It is apparent that these two grounds are cumulative, for, if privilege had been waived, ground (c) loses all force. I therefore take ground (b) first.

100. Although in his first ruling his Honour refrained from deciding whether privilege had been waived, in his second ruling, published at the same time, he concluded, as I have stated I understand his ruling, that waiver had occurred by the listing of the particular surveillance videos in the appellant's amended court book index and thus the categorising of them as documents it intended to tender or otherwise intended to use at the trial. His Honour applied the correct test for determining whether there had been an implied waiver, namely, whether the conduct of the party claiming privilege was inconsistent with the continued assertion of the privilege.[16] But I respectfully consider the conclusion at which his Honour arrived by applying the test to be erroneous. The videos were merely listed, that is, enumerated, as is done in an affidavit of documents. I cannot think that the giving, properly, of their dates and places is a waiver of their contents. They were not "included"[17]

or supplied and their contents were not "set out" or re-produced as visual images in whole or in part. As Gibbs, C.J. stated in Attorney-General (NT) v. Maurice[18] by reference to authority, it has been held that the privilege in respect of a document is not waived by the mere reference to that document in pleadings or in an affidavit, although the position would be different if the document is reproduced in full in the pleading or affidavit. Dawson, J. said in the same case[19] that for waiver to happen the content of the communication itself must be revealed.[20] Moreover, they were described as "brought into existence for the dominant purpose of litigation", which makes it clear that they were asserted to be privileged from production on the ground of legal professional privilege: compare Esso Australia Resources Ltd. v. Commissioner of Taxation[21]. It may be accepted that by listing them the appellant categorised them as material it then intended to tender or otherwise use at trial. But it had not at that stage used them and it was at liberty to resile from that intention at any time before it actually carried it into effect. I conclude, therefore, that, since what the appellant had done was, in my opinion, not inconsistent with its continued assertion of privilege or - to put the matter concretely - since the surveillance videotapes had not been tendered or otherwise used and their content had not been otherwise revealed, legal professional privilege in them had not been impliedly waived by the appellant. I have found it unnecessary to consider the appellant's argument that there could be no waiver because the listing was done under the compulsion of an order.

105. If, then, the appellant had not waived privilege, the question arises whether his Honour was entitled to refuse to allow the appellant to use the videotapes in cross-examining the respondent. Now, legal professional privilege is a substantive general principle of the common law of great importance, which is not to be sacrificed even to promote the search for justice or truth in an individual case or to be abolished or cut down otherwise than by clear statutory provision or to be narrowly construed or artificially confined: Attorney-General (NT) v. Maurice[22]. This was re-emphasised by the High Court in Daniels Corporation International Pty. Ltd. v. ACCC[23], where it was called a fundamental common law immunity.[24] It is clear as a matter of principle[25], and from the statements in the two High Court cases just mentioned, that a court cannot, without the authority of statute or of valid rules of court, by order, in effect compel a party entitled to legal professional privilege in a document to abandon or waive that privilege by, for instance, producing it before trial to an opposing party against the will of the first-mentioned party or prevent the party from tendering or using the document in a hearing where the party has not already disclosed it to the opposing party or, alternatively, where the party does not thereafter first do so.

108. His Honour did not in his second ruling suggest any statutory authority for his refusal to allow the appellant to use the videotapes in cross-examination. He had, however, in his first ruling referred to sub-ss.(2DA), (2DC) and (2DD) and the Ministerial Directions published pursuant to s.135AB, and counsel for the respondent relied on those sub-sections and directions. So far as material, sub-s.(2DA) provides that the response of the Victorian WorkCover Authority in response to a worker's application for the determination of the degree of his or her impairment must be accompanied by -

"(a) a copy of all medical reports; and (b) affidavits attesting to such other material - existing when the advice is given and of which the employer, Authority or self-insurer or the legal representative of any of them is aware and on which they intend to rely or the substance of which they intend to adduce in evidence in proceedings brought by the worker in accordance with this section or in any related proceedings."

By sub-s.(2DD), in proceedings "in accordance with this section"[26] a medical report or other material is inadmissible in evidence on behalf of the Authority or self-insurer if it was in existence and the employer, Authority or self-insurer, or the legal representative, was aware of it, before the date by which the advice is required to be given and it had not been disclosed to the worker[27]. It is clear from the fact that the originating motion seeking leave to commence proceedings was filed on 23 April 2001 whilst the earliest of the surveillance videotapes listed is described as dated 23 April 2002, as well as from paragraph 3 of the affidavit of Maria Tsikaris sworn 15 October 2002, that the videotapes postdate the date of or for the advice and that accordingly sub-ss.(2DA) and (2DD) do not apply to them. It is therefore unnecessary to consider the meaning of the expression "other material" in the sub-sections.

113. Direction 6 of the Ministerial Directions issued under s.135AB "for or with respect to procedures" under s.135A sets out the substance of sub-s.(2DA) of the latter section (but with the substitution of "existing when the application is made" for the words "existing when the advice is given") and provides in paragraph (d) that the other material must "include in affidavit form the substance of reports of any surveillance and [exhibit] thereto any surveillance film" on which it is intended to rely or the substance of which it is intended to adduce in evidence in proceedings in accordance with the section or in any related proceedings.[28] But it is clear that paragraph (d) relates only to material existing when the application[29] is made and, for reasons already given, the surveillance videotapes were not then in existence. Direction 12.1(b) was relied on for the respondent, but, notwithstanding the generality of Direction 4(c), it is clear from the terms of Direction 12.1 itself and those of Direction 12, which is prefatory to it, that it is expressly limited to proceedings which were on foot at 12 November 1997 and therefore does not apply to the application brought by the respondent.

116. It was accepted for the appellant that there are provisions within the County Court Rules which, by the clarity of their language, impliedly override the right to maintain legal professional privilege in certain circumstances, that is, impliedly require the parties to waive the privilege. The appellant instanced Order 33, relating to medical reports, and Rule 34A.19.1 and Order 44, relating to expert witnesses.[30] None of those provisions is applicable here. Nor, although dealing with defaults concerning court books, does Rule 34A.29 apply in relation to an application under s.135A(4)(b). This is because, even if Rule 35 should not be taken to be an exhaustive statement of the rules for court books in the proceedings to which it applies, Rule 29 is concerned with a failure to include a document in a court book, which is not something that the appellant was required to do either by paragraph 10 of Judge Harbison's order or by Rule 35(4)(d).[31] His Honour seemed to consider that Rule 29 would apply by analogy, but its sanction is far too stern to be applied by analogy. Express provision would be required. In any event there would have been no failure to comply with Rule 35(4)(d) or paragraph 10 or her Honour's order had it not been for the miscarriage of the discretion on the application for an extension of time. Seemingly in support of a wide operation for paragraph 10[32], and perhaps paragraphs 3 and 4, of Judge Harbison's order, the respondent referred to Rule 34A.19, found in Part 5, which is headed "Directions Hearing". That rule provides that at a directions hearing the court may "give any direction for the conduct of the proceeding which it thinks conducive to its effective, complete, prompt and economical determination". The respondent referred also to the fact that in Palmer Tube Mills (Aust.) Pty. Ltd. v. Semi[33] Brooking, J.A. (with whom Tadgell, J.A. and Buchanan, J.A. agreed) stated that it was arguable that a power conferred by Rule 34A.19 was wide enough to authorise the giving of directions which prevail over other provisions of the rules. But, significantly, his Honour added that he thought that a direction excluding the operation of Rule 40.04 (which permitted cross-examination of deponents of affidavits) could not be given. Likewise, in my view, a direction having the effect of overriding legal professional privilege could not be given having regard to the fundamental importance of the privilege at common law as discussed earlier, nor could a direction precluding the tendering of admissible evidence having regard to the nature of a trial and fundamental principles of the law of evidence.[34] But, as Callaway, J.A. indicates in paragraph [2] of his reasons, there may be exceptions to that latter statement. No other rule was relied on for the respondent as authorising the overriding of the privilege or his Honour's refusal on 16 October 2002. Rule 49.01, mentioned by appellant's counsel, does not do so on its true construction. I cannot part from this part of his Honour's reasons without stating emphatically that I do not accept that, in the event of a true failure to list documents, compliance could be required upon such terms as the court considered just "as a condition of [the defaulting] party's further participation in the proceeding". That is altogether too Draconian[35].

119. With the exception of certain Western Australian and English cases, which are distinguishable as turning upon a widely worded rule of court, the cases support the views expressed above. In King v. Nolan[36] Thomas, J. in the Full Court, speaking of non-compliance with a rule of court which contained no sanction for failure to supplement expert statements in relation to videotapes shown to a medical expert, stated[37]:

"In the absence of a specific provision requiring the exclusion of relevant evidence, it is unthinkable that a court should or could exclude relevant evidence as a means of some sort of sanction or punishment for breach of a procedural rule. Whilst there are certain recognised areas in which a judge has a discretion to exclude admissible evidence, especially in criminal jurisdiction, in general he has no right to deprive a party of the right to call relevant admissible evidence."

A similar view was expressed in Douglas v. John Fairfax & Sons Ltd.[38]. Thus, even as to documents which should have been, but were not, discovered, the better view is that, in the absence of a rule to the contrary, they may still be used at trial, subject only to adjournments[39] and costs: Cooke v. Australian National Railways Commission[40] per Olsson, J., citing a reference in Hannan's Local Court Practice to Bohme v. Bohme[41]; though there is in the judgment of the Full Court of the Federal Court in Bourke v. Beneficial Finance Corporation Ltd.[42] an obiter statement that generally the sanction for the failure of a party to discover documents is that the party is unable to tender those documents in evidence. Of course, had the discretion not miscarried on 15 October 2002 there would have been no failure whatsoever to list and, as it was, the failure was a matter of form only, for the respondent did receive the list before trial, albeit late.

124. Although perhaps not directly applicable, the case of Cockerill v. Collins[43]may be noted. It shows the proper approach to be taken on questions of interpretation and authorisation where legal professional privilege is concerned. There, the Queensland Court of Appeal held that a rule of the District Court authorising the court or judge at any time to give such directions as the court or judge thinks proper was not to be read as authorising directions derogating from a party's legal professional privilege with respect to an expert's report. The directions in question were that each party serve a copy of the report to any expert witness upon whom the party intended to rely at trial and in the event of non-compliance no evidence be led without the leave of the trial judge of any expert witness the substance of whose evidence had not been made available as directed. Fitzgerald, P. said[44]:

"The directions at least indirectly imposed an obligation on [the defendants] to waive that secrecy by otherwise subjecting the conduct of their defence to a restriction unless the trial judge later lifted that restriction. In doing so, the directions derogated from the appellants' legal professional privilege with respect to the engineer's report. The prevailing theory with respect to the proper performance of the judicial function in modern society encourages active case management to reduce issues, avoid surprise and embarrassment, minimise cost and delay, and provide expeditious and efficient justice. However, the adversarial system is not wholly without advantage, and public or private interests will not always necessarily be best served by full disclosure of all evidence, or all evidence in a particular category, prior to trial. More particularly, justice will not necessarily be served by compelling a waiver of all or part of a litigant's legal professional privilege with respect to evidence, or possible evidence, pre-trial. The respondent submitted that legal professional privilege does not exist to confer or preserve tactical advantages at a trial. Irrespective of whether that is an accurate statement with respect to a purpose of the privilege, advantages with respect to the conduct of trial are undoubtedly one of the benefits which routinely result from its existence. The important public interest served by legal professional privilege has been consistently affirmed by the High Court. At least since Baker v. Campbell, generally expressed statutory powers which are literally wide enough to deny or derogate from legal professional privilege have been construed so as to leave the privilege intact. Legislation which would adversely affect legal professional privilege if given its literal effect is read down so as to avoid that result unless the language used clearly reveals an intention to do so. Obviously, a similar approach must be adopted to the construction of subordinate legislation."

McPherson, J.A.[45] stated that the rule evinced no intention to abrogate the claim to legal professional privilege. He went on:

"Rule 101 of the District Court Rules is expressed in terms that are quite general and non-specific, and does so without addressing the matter now being considered or anything resembling it. Even assuming that their purpose, or one aspect of it, is to facilitate active case management, they provide no indication that the power conferred is to be exercisable in derogation of the common law right of a litigant to decide whether or not to relinquish the privilege, or to select the moment at which to do so; in the ordinary course of events, the earliest moment at which that decision is called for is at the trial if and when that party elects to call the evidence and, for that purpose, opens the case which it is proposed to present. On the face of it, r. 101 neither expressly or impliedly interferes with that right or choice."

130. The attention of the court was drawn to a number of Western Australian and English decisions in which the defendant was not permitted, or it was stated obiter that a defendant should not be permitted, to withhold disclosure until trial of videotapes or films of the plaintiff in respect of which the defendant no doubt was entitled to legal professional privilege: Brown v. Metro Meat International Ltd.[46]; Boyes v. Colins[47]; Digby v. Essex County Council[48]; and Khan v. Armaguard Ltd.[49]. (In McGuinness v. Kellogg Co. of GB Ltd.[50] an order allowing the defendants to tender at trial a cine film without having previously disclosed it to the plaintiff was upheld). But those cases turned upon a rule of court[51] providing, in substance, that, unless the court (in England, for special reasons) otherwise ordered, no plan, photograph or model should be receivable in evidence at trial unless at least ten days before its commencement the other parties had been given an opportunity to inspect it and to agree to its admission without further proof. The two rules were treated as overriding legal professional privilege in the videotapes, which, at least in Boyes v. Colins[52], was expressly held to exist.[53] Whether, according to more recent authority, that is the correct interpretation of such rules in Australia and, if so, they are valid need not be considered.

133. The court was also referred to some half dozen cases in which, as well as in the English and Western Australian cases just mentioned, there is a discussion of the respective merits of allowing the defendant to test the plaintiff's evidence in cross-examination without the plaintiff having the benefit of foreknowledge of the videotape and of the "cards on the table" or "anti-ambush" approach of requiring the defendant to make disclosure before trial. As this appeal, so far as it relates to the order of 16 October 2002, is concerned with power, not discretion, there is no need to consider these rival approaches or to list the cases which were cited.

136. I conclude, therefore, that the Rules did not authorise his Honour, by order, to refuse to let the appellant use the videotapes in cross-examination and, if it became appropriate, to tender them in evidence on the hearing of the application under s.135A, whether the refusal be absolute or conditional upon the appellant's not having already disclosed the videotapes to the respondent or (if the reasons could be interpreted as allowing this) upon the appellant's not doing so thereafter. Nor did any rule authorise his Honour to compel the waiver or abandonment of privilege in the videotapes as a condition or term of obtaining an extension of time.

139. Nor, I should add for completeness, can his Honour's order of 16 October 2002 be justified by reference to paragraphs 3 and 4 of Judge Harbison's order.[54] By paragraph 3 her Honour ordered the appellant to file and serve an affidavit "exhibiting medical and other material upon which [it] intends to rely" by a certain date. By paragraph 4 her Honour ordered that there be final service of affidavits "exhibiting medical and other material upon which the parties intend to rely in reply" on or before a later date and that "no affidavit, medical report or other material not so served by that date shall be led in evidence or relied upon in cross-examination by any party at trial except by leave of a Judge or by consent of the parties." In light of the statements by the High Court as to the high status of legal professional privilege and what is required to override it and also having regard to the genesis of the order[55], the expression "other material" in paragraphs 3 and 4 of her Honour's order cannot be interpreted as extending to privileged material.[56] (If, however, it were to be so interpreted, it would to that extent be invalid as beyond her Honour's power in the absence of clear authority by statute or under the rules.[57]) In my opinion, the passage quoted earlier from the Practice Note of the Chief Judge is in accordance with law, for it does not require the disclosure of surveillance reports and films, which may be taken to be privileged, except where privilege has been waived in relation to a medical report, when that waiver must be taken to extend to surveillance reports or films shown to the medical practitioner as being associated material, without which the medical report cannot be fully understood[58].

142. Notwithstanding that the primary judge had reservations as to the possible usefulness of the surveillance material, I have come to the conclusion that the denial to the appellant by the order of 16 October 2002 of the opportunity to further test the respondent's credit and to adduce evidence relevant to her level of impairment did occasion a substantial miscarriage of justice and that the appeal should accordingly be allowed. I would, as stated above, refuse the extension sought for the notice of contention. I would set aside the order of 15 October 2002 and in lieu of it order that the time for the defendant to serve a court book be extended retrospectively to 11 October 2002. I would also set aside the order of 1 November 2002 and would remit the proceeding to the County Court for re-hearing. I would reserve the costs of the first hearing to the judge presiding at the second hearing and, as requested by the

appellant, would order it to pay the respondent's costs of the appeal, including costs reserved.

147. I have also had the advantage of reading in draft the reasons prepared by Batt, J.A., which take account of the matters in the judgment of Callaway, J.A. I agree in them and in the orders that his Honour proposes.

[2] There is a question whether "other material" is to be read eiusdem generis with what precedes it or without limitation, as I think the appellant was inclined to accept in the context of the Act and the Practice Note mentioned later. Without deciding the point I have proceeded on the basis of latter interpretation.

[3] The reference to "trial" in this essentially pro forma order, particularly in association with the reference to Rule 34A.35(4)(d) (which is set out below), is clearly in this case a reference to the hearing of the application under s.135A.

[4] A statement by the primary judge at page 2 of his Ruling No.1, referred to later, might on one view, suggest otherwise.

[5] The requirements of para.10 of her Honour's order and Rule 34A.35(4)(d) may be contrasted with the requirement of Rule 34A.31(d) for the court book to contain a copy of each document.

[6] [1998] 4 V.R. 439 at 448-449.

[7] The Court was informed that a later amendment of the Practice Note was irrelevant for present purposes.

[8] [2000] WASCA 344; (2000) 23 W.A.R. 123.

[9] At the risk of doing what is proscribed (though with the plea that the proscription is, to adapt Bertrand Russell's concept, language of a higher order than an observation about the merits of a special leave application) reference may be made to observations by Gummow, J. and Hayne, J. in EMCL Pty. Ltd. & Anor. v. Esanda Finance Corporation Ltd. (High Court transcript, 8 September 2000, p.5).

[10] In the notice of appeal called a judgment given.

[11] This seems to invert the onus as to the condition.

[12] (2002) 76 A.L.J.R. 828 at paras.[5]-[7].

[13] Gerlach v. Clifton Bricks Pty. Ltd. at paras.[5]-[7].

[15] In Robbins v. Harbord [1994] SASC 4571; (1994) 62 S.A.S.R. 229 at 236-237 video film was held not to be privileged, but that was the result of the special position of the employer under the South Australian workers compensation legislation.

[16] Attorney-General (NT) v. Maurice [1986] HCA 80; (1986) 161 C.L.R. 475, cited in the second ruling, and especially Mann v. Carnell [1999] HCA 66; (1999) 201 C.L.R. 1 at 13, cited in the first ruling.

[17] See text at fn.[. ] I do not accept Mr. Rush's submission for the respondent that the requirement to "list" meant to "provide".

[20] The present case is not one where part of a communication or some of certain associated material has been revealed and the question is as to the balance.

[21] [1999] HCA 67; (1999) 201 C.L.R. 49.

[23] [2002] HCA 49; (2002) 192 A.L.R. 561; 77 A.L.J.R. 40 at paras.[9]-[11], [43]-[44], [85]-[87], [132]. See also Baker v. Campbell [1983] HCA 39; (1983) 153 CLR 52; Carter v, Northmore Hale Davey & Leake (1995) 183 CLR 121; and Commissioner of Australian Federal Police v. Propend Finance Pty. Ltd. (1997) 188 CLR 501.

[25] Cases supporting the views stated and their application are cited later.

[26] This expression is found in sub-s.(1)(a)(iii) and (b)(ii), where it refers to proceedings for the recovery of damages at common law, and there is a nice question, on which it is not necessary to express a concluded view, whether in sub-s.(2DD) it extends to an application under sub-s.(4)(b) for leave to bring such proceedings. Unlike sub-s.(2DA), sub-s.(2DD) does not include the words "or in any related proceedings".

[27] Sub-section (2DC) is not presently material as it applies to the worker.

[28] Whether Direction 6 so far as it requires disclosure of privileged surveillance reports and film is valid in the light of the High Court's statements as to the fundamental nature of the privilege (which is available extra curially: Daniels Corporation at paras.[10] and [44]) does not in the circumstances arise and I express no opinion on it.

[29] It is clear, too, from Directions 3 and 5 that "application" means an application for the determination of the degree of impairment under s.135A(2B), as opposed to an application under sub-s.(4)(b) for leave to bring proceedings.

[30] Whether the rule-making power under which those provisions were made is sufficiently clear and specific, within the statements in Daniels Corporation at paras.[11], [43] and [132], to authorise the overriding of the privilege by the provisions by necessary intendment or whether, alternatively or, perhaps, specifically, they or some of them are, in the regard mentioned, valid by reason of s.78(1)(ha) of the County Court Act 1958 (as to which compare Interchase Corporation Ltd. (in liq.) v. Grosvenor Hill (Qld) Pty. Ltd. (No.1) [1999] 1 Qd R 141) are questions which, in the circumstances of this appeal, do not require consideration, and I express no view upon them.

[31] Which may be contrasted with Rule 31(d).

[32] Which does not, however, unlike paragraphs 3 and 4 in combination, contain a sanction for non-compliance.

[34] As exemplified in King v. Nolan [1992] 2 Qd.R.498 at 501, referred to later.

[35] Compare Douglas v. John Fairfax & Sons Ltd. [1983] 3 NSWLR 126 at 134.

[36] [1992] 2 Qd.R. 498.

[38] At 134, where it was held that there was no power to make an order precluding a defaulting plaintiff from seeking to prove special damages.

[39] Which may include setting aside a part-heard trial and directing a new trial: Southern Cross Exploration NL v. Fire & All Risks Insurance Co. Ltd. (1985) 2 N.S.W.L.R. 340.

[40] (1985) 39 S.A.S.R. 146 at 149.

[41] Unreported, Supreme Court of South Australia (Murray, C.J.), 14 November 1927. I accept the qualification made by Callaway, J.A. in paragraph [2] of his reasons that the statement in the text may not apply in some circumstances.

[42] (1993) 47 F.C.R. 264 at 278; s.l.r. (1994) 181 C.L.R. 678n.

[43] [1998] QCA 76; [1999] 2 Qd.R. 26.

[46] [2000] W.A.S.C.A. 123 at para.[24]. In that case the statement, albeit considered, was clearly obiter.

[47] [2000] WASCA 344; (2000) 23 W.A.R. 123.

[48] [1994] PIQR P53.

[49] [1994] EWCA Civ 19; [1994] 3 All E.R. 545.

[50] [1988] 2 All E.R. 902.

[51] R.S.C. O.38, r.5 in England and Rule 36.4 in Western Australia.

[53] In Brown v. Metro Meat International Ltd. the section of the workers' compensation legislation requiring the review officer to act fairly in resolving the dispute whether by agreement or otherwise was the focus of the strictly obiter discussion in the principal judgment, that of Wheeler J. Her Honour stated at para.[12] that this was subject to questions of privilege, "which were not raised on this appeal". I observe that sub-s.(1a) inserted in s.96 of the Principal Act, which was referred to in argument before us, did not authorise an order for production of material to other parties.

[54] Counsel for the appellant contended that breach of these paragraphs was not suggested below.

[55] That is, as deriving from a set of pro forma orders the introduction to which referred to the Practice Note of the Chief Judge.

[57] See the discussion earlier of Rule 34A.19.