Topine v Canterbury Bankstown Bulldogs Rugby League Club Limited

Supreme Court of NSW|2024-10-11|Before: Davies J

Judgment

The plaintiff is a professional Rugby League player who entered into a contract of employment with the first defendant ("the Club") on or about 23 August 2022. By that contract, the first defendant agreed to employ the plaintiff as a professional Rugby League player from 1 November 2022 to 31 October 2024.
On 18 July 2023 the plaintiff arrived late to training as a result of a misunderstanding of the time of the training schedule. As a result, the plaintiff alleges that the second defendant, who was a trainer at the Club, gave a direction that the plaintiff was to engage in individual wrestling matches with between 30 to 35 players on the Bulldogs NRL player roster. He alleges that this was, in effect, an improper punishment direction which did not comply with his employment agreement and amounted to unlawful corporal punishment of the plaintiff.
In proceedings commenced by the plaintiff against the Club and the trainer on 23 April 2024, the plaintiff pleads a breach of his employment contract, and seeks in addition damages for assault, false imprisonment, and negligence in respect of the actions of the second defendant. The plaintiff claims to have suffered mental harm as a result of those actions.
The plaintiff ceased work as a footballer at the Club on 24 July 2023. His contract was terminated by the Club on 31 October 2023. He retained his present solicitors to act for him in August 2023.
On 11 July 2024 the defendants issued a subpoena addressed to the plaintiff's solicitor, Mr Abdullah Reslan. The subpoena was subsequently served on him. The schedule required production of the following documents: 2. All documents between 1 July 2023 and the date of this subpoena, which contain communications in any way connected to Jackson Topine, between you and: (a) Marcus Topine; (b) Ahmad Merhi; (c) Tyran Smith; (d) Any other employee or agent of Sportsplayer Management other than Ahmad Merhi and Tyran Smith; (e) Jan Earl; (f) John Carmody; (g) Dr Michael Atherton; and (h) Any other medical professional other than Jan Earl, John Carmody, and Dr Michael Atherton. (emphasis added)

The plaintiff's father and agents

Mr Reslan's affidavit makes clear that he was retained by the plaintiff to represent him in his dispute with the defendants in August 2023. The dispute related to the incident on 18 July 2023. Before Mr Reslan was retained he did not know the plaintiff nor any member of his family, nor did he have anything to do with the plaintiff or any member of his family.
Mr Reslan also said that, since he represents a number of Rugby League players who are managed by Sportsplayer Management, he has communicated with people from that organisation on a range of matters that have nothing to do with the plaintiff or the present dispute.
The defendants accepted that there may well be documents that are privileged amongst the communications between Mr Reslan and any of these persons but submitted that all of the communications may not necessarily or obviously be privileged. When I asked counsel for the defendants if she could give me an example of how a document might be relevant but would not be caught by client legal privilege, counsel suggested that if these persons had been in communication with her client and had then relayed that communication to Mr Reslan, then the communication between them and Mr Reslan would not be privileged.
Accepting Mr Reslan's evidence about the timing of his retainer, and the fact that he did not know the plaintiff or any member of his family prior to his retainer, and his evidence that any communication with Sportsplayer Management individuals about the plaintiff was only for the purpose of advising and providing legal services to the plaintiff, it is difficult to see what documents could fall within paragraphs 2(a)-(d) of the subpoena to Mr Reslan which would not be privileged.
In Xinfeng Australia International Investment Pty Ltd v GR Capital Group Pty Ltd [2020] NSWSC 620, Ward CJ in Eq (as her Honour then was) said: [39] Objection may also be taken to a subpoena (or notice to produce) on the basis that it is oppressive in scope or content (see Jordan CJ, with whom Davidson and Owen JJ agreed, in Commissioner for Railways v Small (1938) 38 SR (NSW) 564 at 573-4; 55 WN (NSW) 215 (Commissioner for Railways v Small); Australian Competition and Consumer Commission v Shell Co of Australia Ltd [1999] FCA 212; (1999) 161 ALR 686 at [53] per Cooper J). Further, as the Judgment Debtors have noted in their submissions, a subpoena that, on its face, solely seeks privileged material may be said to be improper (the Judgment Debtors there citing Registrar, Court of Appeal v Craven (No 1) (1994) 126 ALR 668 at 699 per Meagher JA; Shire of Katanning v Bride [2016] WASC 118 at [31]-[34] per Tottle J).
In Woolner v South Western Sydney Local Health District [2023] NSWSC 748, the plaintiff in a medical negligence case served a subpoena on the defendant's solicitors seeking production of: All correspondence, documents, advices, file notes, costing records, WIP ledgers, memoranda, documents or minutes of meetings held in relation to obtaining instructions, the preparation of and the filing of the Defendant's Defence filed on 15 March 2022.
The solicitors for the defendant sought an order setting aside the subpoena on the basis that the documents were subject to client legal privilege. An issue in the case was whether, in order to establish the privilege, there would need to be evidence from the defendant's solicitors demonstrating that each of the documents concerned was so privileged. Reliance was placed on what had been said by Brereton J in Hancock v Rinehart (Privilege) [2016] NSWSC 12 at [7]-[10] where his Honour explained the evidentiary burden falling on a person who claimed legal professional privilege.
In setting aside the subpoena, Schmidt AJ said: [24] Neither party suggested in this case that the Court should inspect the documents evidencing the instructions which the Health District's solicitors obtained. [25] I am satisfied that was not necessary, because what has been subpoenaed itself establishes that the disputed documents are all privileged. … [53] Brereton J explained that in that case, the existence of the claimed privilege in the trust documents required more than its assertion. What was required was evidence of the facts which it was claimed gave rise to such privilege in those documents: at [9]. [54] The documents here in issue are of an entirely different character. What is sought is, in short, documents evidencing instructions given to a solicitor about the defence advanced in these proceedings. Ms Phiri's evidence confirms that the nature of the documents subpoenaed and the circumstances in which they were brought into existence, makes them confidential. That is because they were brought into existence as the direct result of the solicitors' retainer to act in these proceedings for the Health District. … [56] Thus, in this case, given what the subpoena requires, in order to resolve what lies in issue between the parties it is not necessary for the Health Service to produce a list of the individual documents falling within the subpoena, together with their individual descriptions, in order for it to establish that what is being pursued is privileged. … [59] In this case, the facts on which a claim of privilege necessarily turns are implicit in the subpoena itself. When what is actually pursued is considered in light of Ms Phiri's evidence and the relevant provisions of the Evidence Act, that Mr Woolner is not entitled to their production must be accepted. [60] That conclusion is reinforced by a consideration of the requirements of s 56 of the Civil Procedure Act, which requires the Court, when exercising its powers, to seek to give effect to the overriding purpose there specified, in order to facilitate the just, quick, and cheap resolution of the real issues in the proceedings. The parties are also obliged to assist the Court to further that purpose. [61] Those obligations support the conclusion that resolution of what here lies in issue does not require the unnecessary expense of production of the list on which the case advanced for Mr Woolner rested. There can be no real issue that a list or description of the individual documents will shed any further light on the nature of what has been subpoenaed and whether it is privileged.
Although the terms of the subpoena to Mr Reslan are not as explicit as the terms of the subpoena in Woolner, any communications between Mr Reslan and the plaintiff's father and agents would, in the light of Mr Reslan's evidence, necessarily comprise documents that were confidential communications between Mr Reslan and other people for the dominant purpose of the plaintiff being provided with professional legal services relating to an Australian proceeding.
In the circumstances, there is no necessity for the documents to be produced with a claim for privilege being made. As Black J said in In the matter of Wetherill Park Holdings Pty Ltd [2020] NSWSC 982 at [12]: It seems to me that these paragraphs are framed in a way that they are calculated to, and very likely to, require the production of advice that is subject to legal professional privilege. The documents that record the seeking of legal advice will, in the ordinary course, be the client's request for advice which is at the core of legal professional privilege, and the documents which record the obtaining of legal advice will, in the ordinary course, be the advice or any record of it. Mr Fernon submits that documents can be produced, and a claim for legal professional privilege can be made in respect of them. While that is so, the Courts have regularly set aside notices to produce or subpoenas which, on the face of them, are likely to require production of largely privileged material, because a party should not be put to the wasted costs of producing documents, and then claiming legal professional privilege over them: Xinfeng Australia International Investment Pty Ltd v GR Capital Group Pty Ltd [2020] NSWSC 620 at [39]-[40]. Those paragraphs should be set aside so far as they are targeted, on the face of them, to advice which would be subject to legal professional privilege.
The example given by counsel for the defendants about communications between the agents and the defendants that were passed on to Mr Reslan would not be an exception to the claim for client legal privilege. In all the circumstances, the communications could only have been passed on to Mr Reslan for the purpose of his giving advice to the plaintiff in respect of the proceedings. It is not without some significance that the persons referred to in paragraphs 2(b), (c) and (d) are agents of the plaintiff, and, as far as the evidence goes, Mr Marcus Topine was also acting as an agent for the plaintiff in his dealings with the defendants and Mr Reslan.
The documents are all the subject of client legal privilege and the subpoena should be set aside in respect of paragraph 2(a)-(d).

The health care professionals

The plaintiff first consulted the psychologist John Carmody on 4 August 2023, the counsellor Jan Earl on 7 August 2023, and the psychiatrist Dr Atherton on 15 August 2023.
Ms Earl's report of 8 August 2023, Dr Atherton's reports of 15 August 2023 and 4 April 2024, and Mr Carmody's report of 21 August 2023 have been served in support of his claim. Each of the reports deals with the plaintiff's complaints concerning the incident on 18 July 2023. The reports also include information about the plaintiff's background including matters that predate the incident. It is not necessary to detail the matters that preceded the incident. It is sufficient to note that they are obviously relevant matters where damages are claimed for personal injury including for mental harm.
It was because of the information about the plaintiff's background that the date of 1 July 2023 was chosen by the defendants. By selecting that date, the defendants wished to obtain any documents preceding the incident containing such information.
Notwithstanding service of those reports, the plaintiff seeks to claim client legal privilege and to resist production of documents sought in the Reslan subpoena under s 126B of the Evidence Act 1995 (NSW), and to prevent disclosure of the documents produced in answer to the health care professionals' subpoenas.
Section 126B relevantly provides: 126B Exclusion of evidence of protected confidences (1) The court may direct that evidence not be adduced in a proceeding if the court finds that adducing it would disclose - (a) a protected confidence, or (b) the contents of a document recording a protected confidence, or (c) protected identity information. … (3) The court must give such a direction if it is satisfied that - (a) it is likely that harm would or might be caused (whether directly or indirectly) to a protected confider if the evidence is adduced, and (b) the nature and extent of the harm outweighs the desirability of the evidence being given. (4) Without limiting the matters that the court may take into account for the purposes of this section, it is to take into account the following matters - (a) the probative value of the evidence in the proceeding, (b) the importance of the evidence in the proceeding, (c) the nature and gravity of the relevant offence, cause of action or defence and the nature of the subject matter of the proceeding, (d) the availability of any other evidence concerning the matters to which the protected confidence or protected identity information relates, (e) the likely effect of adducing evidence of the protected confidence or protected identity information, including the likelihood of harm, and the nature and extent of harm that would be caused to the protected confider, (f) the means (including any ancillary orders that may be made under section 126E) available to the court to limit the harm or extent of the harm that is likely to be caused if evidence of the protected confidence or the protected identity information is disclosed, (g) if the proceeding is a criminal proceeding - whether the party seeking to adduce evidence of the protected confidence or protected identity information is a defendant or the prosecutor, (h) whether the substance of the protected confidence or the protected identity information has already been disclosed by the protected confider or any other person, (i) the public interest in preserving the confidentiality of protected confidences, (j) the public interest in preserving the confidentiality of protected identity information. (5) The court must state its reasons for giving or refusing to give a direction under this section.
Section 126A relevantly defines the following terms: 126A Definitions (1) In this Division - harm includes actual physical bodily harm, financial loss, stress or shock, damage to reputation or emotional or psychological harm (such as shame, humiliation and fear). protected confidence means a communication made by a person in confidence to another person (in this Division called the confidant) - (a) in the course of a relationship in which the confidant was acting in a professional capacity, and (b) when the confidant was under an express or implied obligation not to disclose its contents, whether or not the obligation arises under law or can be inferred from the nature of the relationship between the person and the confidant.
Of some significance, in the report of Dr Atherton of 15 August 2023, Dr Atherton recorded this under the heading "Confidentiality and consent": Mr Topine is aware that I have been asked to provide an opinion and management plan in relation to his mental health. He is also aware that this opinion may be provided to his employer, and he is also working with the Elite Athletes Wellbeing Service who will be accessing the information. He appeared to understand and then consented to this.
There are two aspects to the issues concerning the subpoenas as they relate to the medical health professionals. The first is the issue of client legal privilege and whether that has been waived by the service of the reports. The second issue arises from s 126B of the Evidence Act.
The plaintiff seeks to set aside the Reslan subpoena as it touches the medical health professionals on the basis that correspondence and documents passing between Mr Reslan and those persons are subject to client legal privilege. Whilst that may have been correct if the medical health professionals had been consulted privately and if their reports had not been served, the service and use of those reports raises squarely whether the privilege has been waived.
Section 122 of the Evidence Act relevantly provides: 122 Loss of client legal privilege: consent and related matters (1) This Division does not prevent the adducing of evidence given with the consent of the client or party concerned. (2) Subject to subsection (5), this Division does not prevent the adducing of evidence if the client or party concerned has acted in a way that is inconsistent with the client or party objecting to the adducing of the evidence because it would result in a disclosure of a kind referred to in section 118, 119 or 120. (3) Without limiting subsection (2), a client or party is taken to have so acted if - (a) the client or party knowingly and voluntarily disclosed the substance of the evidence to another person, or (b) the substance of the evidence has been disclosed with the express or implied consent of the client or party. (4) ... (5) A client or party is not taken to have acted in a manner inconsistent with the client or party objecting to the adducing of the evidence merely because - (a) the substance of the evidence has been disclosed - (i) in the course of making a confidential communication or preparing a confidential document, or (ii) as a result of duress or deception, or (iii) under compulsion of law, or (iv) if the client or party is a body established by, or a person holding an office under, an Australian law - to the Minister, or the Minister of the Commonwealth, the State or Territory, administering the law, or part of the law, under which the body is established or the office is held, or (b) of a disclosure by a client to another person if the disclosure concerns a matter in relation to which the same lawyer is providing, or is to provide, professional legal services to both the client and the other person, or (c) of a disclosure to a person with whom the client or party had, at the time of the disclosure, a common interest relating to the proceeding or an anticipated or pending proceeding in an Australian court or a foreign court. (6) This Division does not prevent the adducing of evidence of a document that a witness has used to try to revive the witness's memory about a fact or opinion or has used as mentioned in section 32 (Attempts to revive memory in court) or 33 (Evidence given by police officers).
Section 122 is said to replicate the common law test for waiver set out in Mann v Carnell (1999) 201 CLR 1; [1999] HCA 66. The plurality said at [29]: 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 the confidentiality; not some overriding principle of fairness operating at large.
The statement of claim pleads: 61. As a result of the trespasses to the person as pleaded above, the plaintiff suffered psychiatric injury, deprivation of liberty, humiliation, indignity, physical exhaustion, physical discomfort, anxiety, embarrassment, and fear.
In my opinion, privilege has been waived over communications between Mr Reslan's firm and the health care professionals that are related to the reports relied upon by the plaintiff in the proceedings. Section 126 of the Evidence Act must be borne in mind because that section provides that ss 121-125 of the Act do not prevent the adducing of evidence of a communication or the contents of a document if it is reasonably necessary to enable a proper understanding of the communication or document, including the reports. In that regard, Brereton J (as his Honour then was) said in ML Ubase Holdings Co Ltd v Trigem Computer Inc (2007) 69 NSWLR 577; [2007] NSWSC 859 at [45]: … In my opinion, service and tender of an expert witness' report in proceedings does not constitute a waiver of the privilege which attaches to communications between the expert and the solicitors who instructed him or her, save to the extent that those communications are associated documents reasonably necessary to an understanding of the report. "Proper understanding" of a document or communication will sometimes, but not always require that documents to which it responds or refers be available.
In his second report of 4 April 2024, Dr Atherton refers to a number of documents he accessed for the purpose of the report. That included a letter of instructions from Mr Reslan, a statement of facts from the plaintiff to Ms Earl, and Dr Atherton's clinical notes. Privilege has been waived in respect of those documents.
Further, privilege has been waived as to the reports and as to correspondence related to those reports subsequent to their preparation. To the extent that doubt remains whether privilege has thereby been waived in respect of individual documents, I will return to that issue presently.
The issue under s 126B arises in this way. After the subpoenas were issued, Mr Reslan sought an opinion from Dr Atherton about the effect disclosure of the material sought in the subpoenas would have on the plaintiff. Dr Atherton provided a report containing the questions asked by Mr Reslan and Dr Atherton's answers as follows: Opinion in relation to the questions raised in your email dated 25th August 2024: 1. What would be the effect, on Jackson's mental health, of Jackson's knowledge that the defendants or their lawyers had gained access to confidential information that he had provided to you for the purposes of you providing him with mental health treatment? Mr Topine was deeply distressed by the knowledge that his personal details been subpoenaed and may be provided to the defendants and their lawyers. He is a private man and provided the information about his personal life and his family in confidence. He was shocked and visibly anxious about the possible release of this information and given the injury causes on Mr Topine relates to his mental health, this release of sensitive material would have a detrimental impact on his mental health resulting in likely deterioration and re-traumatisation. 2. What would be the effect, on Jackson's ability to seek treatment from you for his mental health issues, of Jackson's knowledge that the defendants or their lawyers had gained access to confidential information that he had provided to you for the purposes of you providing him with mental health treatment? Mr Topine was visibly upset that the subpoena had occurred and clearly was concerned that the nature of his personal details and information, that was provided in confidential sessions, could be released via subpoena to the defendants or their lawyers. It would detrimentally impact on the therapeutic relationship and the trust required to provide therapeutic care between Mr Topine and myself. This would be a great shame as he has made good progress, despite the serious nature of his trauma. This kind of loss of connection and break in a treatment relationship is likely to have serious negative impacts on and individual's mental health. 3. What would be the effect, on Jackson's ability to seek treatment from any other psychiatrist, of Jackson's knowledge that the defendants or their lawyers had gained access to confidential information that he had provided to you for the purposes of you providing him with mental health treatment? The release of information of a deep and personal nature is likely to permanently damage Mr Topine's ability to trust clinicians in the future and this could have a detrimental impact on his current and future mental health. It is likely he will also be less resilient and have reduced capacity to manage the traumatic experiences he has endured in the past and related trauma ahead such as any subsequent courts case. As a private man who has never engaged in psychotherapy before, he could reject future treatment providers as unsafe and potentially vulnerable to release one's personal details to the wider public. This negative experience could act as a poor prognostic factor of his overall mental health in the future. Mr Topine has significant mental health issues as a result of his trauma and these will certainly require long term treatment and professional care. The most important factor in any therapeutic relationship is trust and this is significantly at risk from the release of this sensitive information.
What Dr Atherton says in this report sits uneasily with what he included in his report of 15 August 2023 that is set out at para [37] above. It would also be surprising if Mr Reslan had not also explained to the plaintiff that by claiming damages for mental harm and by serving reports which referred to issues the plaintiff had preceding the incident, confidentiality was waived. A plaintiff who wishes to claim damages for mental harm would ordinarily be informed that it would be necessary to disclose all matters in the plaintiff's background that might to relate to the claim for mental harm that is being made. That would necessarily, in some or most cases, involve the disclosure of personal matters. Such personal matters have already appeared in the reports served.
Section 126C provides: 126C Loss of professional confidential relationship privilege: consent This Division does not prevent the adducing of evidence given with the consent of the protected confider concerned.
The consent given by the plaintiff to Dr Atherton means that the information contained in Dr Atherton's reports of 15 August 2023 and 4 April 2024 can be adduced. In any event, a consideration in sub-s 126B(4)(h) is whether the substance of the protected confidence has already been disclosed. That is a significant matter when the power under s 126B(1) is being considered.
The plaintiff has prepared a schedule of the documents produced by the health care professionals over which privilege is claimed in whole or in part. The schedule identifies the author of each document, its subject or title, its recipient(s) and the privilege claimed in respect of it. Except in relation to the medical reports of Dr Atherton, the privilege claimed only relates to s 126B. It appears to be the case that where in relation to each author it is said no privilege is claimed in respect of certain pages, that those pages are what have already been disclosed by the service of the reports.
The plaintiff submitted that determination of the privilege should be conducted in the same manner in which public interest immunity matters are dealt with, that is, by the judge inspecting the documents and forming a view without the other party being given access to them. The defendants submitted that the appropriate course was what was said in National Roads and Motorists' Association v Whitlam [2007] NSWCA 81; (2007) 25 ACLC 688: [120] If objection is taken to the documents being inspected, on the ground of confidentiality, and there is a prima facie basis for that objection, it is for the person seeking access to make out a case that access should be granted. In deciding whether to grant access, the Court takes into account both the inherent degree of confidentiality of the documents, and also the importance of the role that they might play in the proceedings. [121] If legitimate objection is taken to inspection of the documents, on the ground that they are confidential, an expedient frequently adopted is to permit inspection by legal advisors on the basis that the contents of the documents are not to be disclosed by them, and are to be used only for the purpose of the proceedings. That permits the hearing to advance, with the confidentiality impinged on only to the minimum extent necessary to enable the hearing to proceed. If in the course of a hearing a question arises of whether such a document that has been permitted to be inspected by legal advisers on confidential terms should be tendered, or should be used in cross-examination of a witness, the court decides at that stage whether any, and if so what, restrictions are imposed on the manner in which the oral evidence is taken, or the access that is granted to the exhibit. [122] In relation to those confidential documents that fit within a recognised category of privilege (other than the special "protected confidential relationships" privilege) the law has already made a judgment that the documents fall within a class whose confidentiality is such that the administration of justice must proceed without them: Waterford v The Commonwealth (1987) 163 CLR 54 at 64-65; Carter v Northmore Hale Davy & Leake (1995) 183 CLR 121 at 128, 133-135; Commissioner of Australian Federal Police v Propend Finance Pty Limited (1997) 188 CLR 501 at 511, 563. In relation to the category of protected confidences established by section 126A-126E Evidence Act 1995, the Court is required, by section 126B, to form a view, at the time such a confidence is sought to be adduced in evidence, about whether it is more important that the confidence be protected than that the evidence be available. The need to form that view at the time of tender of the evidence can influence a judge's decision about whether at any earlier stage to permit inspection of such a document, and if so on what terms: Urquhart v Lanham [2003] NSWSC 109. [123] For confidential information that is not privileged, and not within section 126A-126E, the usual approach of the Court is that, to the extent to which the confidential information is relevant to the conduct of the proceeding, it is more important that it be used in the administration of justice than that the confidence be protected. It is, of course, a matter for the discretion of the trial judge whether to follow that usual course in any particular case that is before him or her. Following that usual course, however, involves deciding what is the extent to which it is necessary for the confidence to be overridden to enable justice to be properly administered, and seen to be properly administered. It may be, in the circumstances of a particular case, that that objective is achieved by having those clauses or pages of a document that are relevant to the decision of the case admitted as an open exhibit, and the balance of the document admitted as a confidential exhibit.
The defendants submitted that such a course was appropriate in a matter like the present, and relied on what was said in Herrick v Knowles [2014] NSWSC 1223 to justify that course. Herrick v Knowles was a case brought by a plaintiff who claimed that she was sexually groomed and abused by a priest. The report sought in a subpoena by the plaintiff had been prepared at the behest of a superior of the priest from a social worker who was informed of the allegation and was asked to interview the priest concerned and write a report.
Associate Justice Harrison noted that the parties referred to National Roads and Motorists' Association v Whitlam and other cases and her Honour said at [11]: All of these cases agree that ss 126A and 126B apply to documents produced on subpoena.
In the result, her Honour read the report herself (see at [38]) but declined to make it available to the plaintiff (see at [45]).
Given the approach adopted by Harrison AsJ in Herrick v Knowles, I do not read her Honour's decision as an adoption of what is contained in [121] of NRMA v Whitlam for a case like the present or Herrick itself. NRMA v Whitlam was a case concerned with a deed entered into between parties to settle proceedings. The deed was relevant to other proceedings, but the deed contained a confidentiality clause preventing its disclosure (inter alia) as was required by law. An issue arose as to how the deed should be used in evidence. Paragraph [117] of the judgment encapsulates the issue: The present case involves how the Court should deal with information that is confidential, where one of the people entitled to the benefit of the obligation of confidence is not a party to the litigation. It is common enough for confidential documents to be obtained on subpoena from a non-party. The court's practice in dealing with such confidential documents can provide a guide to the sort of orders it should make concerning the confidentiality of the Confidential Exhibits.
The Court then said: [118] Whenever any documents are obtained on subpoena from a non-party, the three steps identified by Moffit P in National Employers' Mutual General Association Ltd v Waind & Hill (1978) 1 NSWLR 372 at 381 are involved in obtaining and later using the documents: "The first is obeying the subpoena, by the witness bringing the documents to the court and handing them to the judge. This step involves the determination of any objections of the witness to the subpoena, or to the production of the documents to the court pursuant to the subpoena. The second step is the decision of the judge concerning the preliminary use of the documents, which includes whether or not permission should be given to a party or parties to inspect the documents. The third step is the admission into evidence of the document in whole or in part; or the use of it in the process of evidence being put before the court by cross-examination or otherwise. It is the third step which alone provides material upon which ultimate decision in the case rests. In these three steps the stranger and the parties have different rights, and the function of the judge differs." [119] When one gets to the second step in this process, Moffit P said, at 383: "At this point documents are in the control of the court, pursuant to the valid order of the subpoena. As pointed out in Small's case ((1938) 38 S.R. (N.S.W.) 564, at p. 574; 55 W.N. 215) at this time the witness may state he objects to their being handed to the parties for inspection. If he states he does not object to the parties inspecting the documents, or by lack of objection is taken to have no objection, no doubt normally there would be little reason not to permit inspection by either party. However, the documents are under the control of the judge and, even if the witness has not objected, there may be good reason in the elucidation of the truth why the judge may e.g. defer inspection by one party or the other. Indeed, no doubt, he will normally defer inspection by a party who has not issued a subpoena until his opponent has an opportunity to use the documents in cross-examination. There may be good reason why he may, or indeed should, refuse inspection of irrelevant material of a private nature, concerning a party to the litigation, or, concerning some other person who is neither a party nor the witness. It may well be that the documents are the property of some institution, but relate to private matters concerning some person and the officers of the institution do not take objection on the basis that the responsibility for disclosure rests with the court. The documents are in its control and are used on its responsibility so far as properly required for the purpose of the proceedings." (emphasis added by Court in NRMA v Whitlam)
That is a wholly different kind of situation from documents in respect of which an application under s 126B is made in a case like the present. The procedure set out in NRMA v Whitlam at [121] is designed to ensure that the confidential information does not come into the hands of persons who may obtain some commercial advantage or knowledge by having access to the document. In such circumstances it is not inappropriate to permit those persons' lawyers to see the document on the condition that the information is not conveyed to their clients.
On the other hand, in a case involving a claim for mental harm, the use that would be made of the information would be a use made by the lawyers on the other side when cross-examining the plaintiff or in negotiations to settle the proceedings. The whole purpose of keeping the documents confidential under s 126B would be undermined if the other party's lawyers had access to them: Balzan Group Pty Ltd v IPM Group Pty Ltd [2014] NSWSC 1480 at [46]-[48].
In my opinion, the plaintiff's submission of how the disputed documents are to be dealt with should be accepted. The position is akin to where a claim for public interest immunity is made. The judge concerned (probably not the trial judge) should inspect the documents and make a decision without disclosing those documents to the other party or their lawyers.
Because most of the health care professionals' reports were prepared before proceedings were commenced, only Dr Atherton has acknowledged the Witness Code of Conduct in respect of his second report of 4 April 2024. However, if the reports are to be relied on, the experts will need to acknowledge that they have been prepared in accordance with that Code. What flows from that is that the expert is required to say, by reason of what they might subsequently come to know, whether a report already prepared needs to be qualified in some way. Counsel for the plaintiff had submitted that correspondence between Mr Reslan and the health care professionals subsequent to the preparation of the reports would be subject to client legal privilege and/or might amount to a protected confidence under s 126B. Whether that would be so might depend on a proper application of the Witness Code.
It will be necessary for there to be a further hearing to enable me to inspect the documents prepared by the health care professionals over which any form of privilege is claimed in the light of this judgment. Any decision made must have regard to the consent given for the disclosure of confidential information as is recorded in Dr Atherton's report.
As a result of what I have said in this judgment, the plaintiff will need to give consideration to what documents a claim for client legal privilege or a claim under s 126B is maintained. The matter can be relisted for further argument, including, if necessary, for inspection of disputed documents by the Court. The parties should then bring in short minutes to reflect this judgment. Such short minutes will at least include the following order: 1. The subpoena addressed to Abdullah Reslan dated 11 July 2024 is set aside so far as it concerns paragraph 2(a)-(d).

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 21 November 2024

Evidence Act 1995(NSW)ss 122, 126, 126A, 126B, 126C

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