Woolner v South Western Sydney Local Health District

JUDGMENT

1. In May 2021 Mr Riley Woolner brought proceedings by his tutor, seeking damages for personal injuries which he claims that he suffered in 2005 as the result of the South Western Sydney Local Health District's negligence. It was claimed that his injuries were caused after he was born preterm at Liverpool Hospital by caesarean section, while being treated in intensive care. The result was a deformity to his right elbow which required surgical and other treatments, as well as other injuries.
2. On the Health District's pleaded case there is no issue about the duty of care which Mr Woolner was owed, but the alleged breaches of that duty, negligence and the injuries which it is claimed he suffered as a result, are put in issue.
3. Two motions have been filed, supported by affidavits sworn by the Health District's solicitor: 1. that of 17 February 2023 seeks leave to file an amended defence which raises a limitation defence not pleaded by the March 2022 defence; and 2. that of 31 May 2023 seeks orders under r 33.4 of the Uniform Civil Procedure Rules 2005 (NSW) setting aside a subpoena issued in May 2023 to Hicksons Lawyers, the Health District's solicitors.
4. The Health District wishes to amend its defence to plead that the applicable 12 year long-stop limitation period lapsed by 26 February 2017, the proceedings having been brought in 2021 some 16 years after the alleged negligence: ss 50C and 50D of the Limitation Act 1969 (NSW).
5. It is unnecessary to explain the somewhat tortured course which the pursuit of the particulars which the Health District sought about Mr Woolner's claim only in August 2021, it having some months earlier filed the defence which did not raise the limitation issue, took. What was provided was information going to when the cause of action was "discoverable" by Mr Woolner. Mediation was pursued, but failed to produce an agreement between the parties.
6. The particulars were provided after attention was drawn to Mid North Coast Local Health District v Hickson [2019] NSWCA 165. There at [25] reference was made to circumstances where it may be legitimate to use a subpoena for what would in other circumstances be characterised as involving fishing. That is, where the factual inquiry pursued concerns matters about which the issuing party can have no knowledge, but which are wholly or at least substantially within the knowledge of the other party.
7. The Health District then acted on the view formed that Mr Woolner's cause of action had become discoverable in 2017, so that these proceedings had been brought out of time. It later pursued the February motion, after advice that he would not consent to the Health District filing the amended defence which raised the limitation issue.
8. This judgment deals with the May motion, which challenges the subpoena which requires Hicksons' 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."
9. These documents are sought because Mr Woolner seeks to cross-examine Ms Phiri about paragraphs eight and nine of the affidavit she swore in support of the February motion. Ms Phiri there said: "8. On 18 March 2022, Hicksons Lawyers filed a Defence on behalf of our client. Liability was not admitted in the defence. Pursuant to the Model Litigant Policy, our client did not initially plead a limitation period defence pending investigation and having requested and received further particulars in relation to the limitation period from the plaintiff. Annexed hereto and marked "C" is a copy of the Defence. 9. On 9 August 2022, Hicksons Lawyers sent a letter to Commins Hendriks, the solicitors for the plaintiff, requesting further and better particulars as to the limitation period Annexed hereto and marked "D" is a copy of the letter."
10. Ms Phiri's cross-examination is claimed to be relevant to the exercise of the Court's discretion to grant leave to amend the defence. But she was not required for cross-examination at the hearing of the May motion.

Issues

1. There is no issue that the Court has a discretion to grant that leave: s 64 Civil Procedure Act 2005 (NSW). That will necessitate a consideration of what the dictates of justice require in the circumstances which arise for consideration: s 58. There is also no issue that if leave to amend is given, Mr Woolner can then also make an application to extend the limitation period: s 62B of the Limitation Act.
2. In issue on the May motion is whether the challenged subpoena has a legitimate forensic purpose, is oppressive, amounts to a fishing expedition and involves a resulting abuse of process. Whether it seeks production of documents which attract legal professional privilege is also contested.
3. The latter requires a consideration of both the common law and provisions of the Evidence Act 2005 (NSW), as well as whether Ms Phiri's evidence is capable of establishing the claimed privilege.
4. But it was conceded by Mr Woolner that any legal professional privilege which does attach to the disputed documents has not been waived by the Health District as the result of Ms Phiri's evidence.

Legitimate forensic purpose?

1. There was also no issue between the parties about the applicable principles on a contest such as that now joined about the existence of a legitimate forensic purpose. They were explained in Secretary of the Department of Planning, Industry and Environment v Blacktown City Council [2021] NSWCA 145 to include: 1. the power to set aside a subpoena should be exercised to avoid abuses of process, but if the disputed documents are likely materially to assist the issuing party, production generally cannot be avoided as an abuse of process or for lack of a legitimate forensic purpose; 2. there will be an abuse of process if a document is not sought bona fide for the purpose of obtaining apparently relevant evidence; 3. there will be a legitimate forensic purpose if the documents are "apparently relevant", or will materially assist on an identified issue, or there is a reasonable basis beyond speculation that it is likely the documents subpoenaed will so assist; 4. documents which will assist in a cross-examination have a legitimate forensic purpose, even if not admissible as evidence; 5. absence of apparent relevance to the issues may establish a lack of legitimate forensic purpose; and 6. apparently relevant documents should be produced, provided that the production sought is not unduly vague or the ambit of what is sought is not such that it would be oppressive to comply with it. It is thus not necessary to show that it is "likely" or "on the cards" that the documents sought will materially assist a party's case.

The parties' cases

1. The Health District contended that the disputed documents had no apparent relevance to its application to be permitted to plead the limitation question in its defence.
2. Mr Woolner disagreed. His case was that the issues to which the documents were relevant were the circumstances in which the March 2022 defence was prepared and filed without a limitation defence being pleaded, that being relevant to whether the leave sought should be granted and Ms Phiri's credit.
3. Ms Phiri was not the solicitor with day-to-day carriage of the matter for the Health District when the defence was filed, or when the particulars were pursued. What she had said at paragraphs eight and nine of her affidavit was argued to be inconsistent with the model litigant rules with the result, Mr Woolner contended, that as a matter of procedural fairness he was entitled to test her evidence.

Legitimate forensic purpose established

1. All the disputed documents relate to "obtaining instructions, the preparation of and the filing of" the Health Service's defence, at a time when it was legally represented.
2. What Ms Phiri said at paragraphs eight and nine of her 17 February 2023 affidavit, appears above. That what she there said reflects the model litigant rules is in issue. Those rules include: "3.1 The obligation to act as a model litigant requires more than merely acting honestly and in accordance with the law and court rules. It also goes beyond the requirement for lawyers to act in accordance with their ethical obligations. Essentially it requires that the State and its agencies act with complete propriety, fairly and in accordance with the highest professional standards. The expectation that the State and its agencies will act as a model litigant has been recognised by the Courts. 3.2 The obligation requires that the State and its agencies, act honestly and fairly in handling claims and litigation by: a) dealing with claims promptly and not causing unnecessary delay in the handling of claims and litigation; b) paying legitimate claims without litigation, including making partial settlements of claims or interim payments, where it is clear that liability is at least as much as the amount to be paid; c) acting consistently in the handling of claims and litigation; d) endeavouring to avoid litigation, wherever possible. In particular regard should be had to the NSW Civil Procedure Act 2005 which provides that the overriding purpose of the Act is to facilitate the just, quick and cheap resolution of the real issues in civil proceedings; e) where it is not possible to avoid litigation, keeping the costs of litigation to a minimum, including by: I. not requiring the other party to prove a matter which the State or an agency knows to be true; and II. not contesting liability if the State or an agency knows that the dispute is really about quantum; f) not taking advantage of a claimant who lacks the resources to litigate a legitimate claim; g) not relying on technical defences unless the interests of the State or an agency would be prejudiced by the failure to comply with a particular requirement and there has been compliance with Premier's Memorandum M1997-26 - Litigation Involving Government Authorities; h) in accordance with Principle 10 of the NSW Government Guiding Principles for Government Agencies Responding to Civil Claims for Child Sex Abuse, State agencies may not rely on a statutory limitation period as a defence in civil claims for child abuse. i) when settling civil claims agencies should consider the use of confidentiality clauses in relation to settlements on a case by case basis; … 3.3 The State or an agency is not prevented from acting firmly and properly to protect its interests. The obligation does not prevent all legitimate steps being taken in pursuing litigation, or from testing or defending claims made. 3.4 In particular, the obligation does not prevent the State or an agency from: … c) pleading limitation periods (other than in child abuse actions); …"
3. It follows that it may be put to Ms Phiri in cross-examination at the hearing of the February motion, that her evidence does not accurately reflect those rules. But that submission does not depend on her answers to such questioning.
4. What these rules provide for; what the defence currently pleads; the Health District's delay in seeking the particulars which went to the limitation period; as well as the delay in their provision until after attention was drawn to what was decided in Hickson, all form part of the circumstances which will arise for consideration on the application to amend the defence.
5. It seems to me that in the result, even accepting that there is some legitimate forensic purpose in cross-examining Ms Phiri about the challenged aspects of her affidavit, that will not be determinative of the circumstances which will arise for consideration at the hearing of the February motion.

Does legal professional privilege apply to the disputed documents?

1. Neither party suggested in this case that the Court should inspect the documents evidencing the instructions which the Health District's solicitors obtained.
2. I am satisfied that was not necessary, because what has been subpoenaed itself establishes that the disputed documents are all privileged.

The parties' cases

1. Mr Woolner's case was that the claimed privilege was incapable of being established by Ms Phiri's evidence, relying particularly on Brereton J's observations in Hancock v Rinehart (Privilege) [2016] NSWSC 12 at [7]-[10]. There his Honour explained the evidentiary burden falling on a person who claims legal professional privilege. Mr Woolner contended that this burden had not been met by the Health District, Ms Phiri's evidence amounting merely to an inadmissible assertion of law, not evidence of the relevant facts on which the existence of the claimed privilege depends.
2. That was disputed by the Health District.
3. Its case was that Mr Woolner's subpoena, by its very terms, established that the documents sought were all confidential, concerning as they did instructions obtained by solicitors about this litigation and the preparation and filing of its defence. Such documents necessarily all attract the privilege relied on. Ms Phiri's unchallenged evidence establishing that they had all been created for the dominant purpose of providing the Health District with legal advice or services concerning this litigation. They accordingly were also privileged under either or both ss 118 and 119 of the Evidence Act.

The privilege at common law

1. As explained in Daniels Corporation International Pty Ltd v Australian Competition and Consumer Commission (2002) 213 CLR 543; [2002] HCA 49 at [9]-[11], legal professional privilege is a rule of substantive law and common law immunity, not merely a rule of evidence.
2. The privilege is not confined to the processes of discovery and inspection and the giving of evidence in judicial proceedings. The common law doctrine also exceeds provisions of the Evidence Act which are concerned with adducing evidence: Mann v Carnell (1999) 201 CLR 1; [1999] HCA 66 at [20].
3. The privilege was explained by Barwick CJ in Grant v Downs (1976) 135 CLR 674; [1976] HCA 63 as attaching to "a document which was produced or brought into existence either with the dominant purpose of its author, or of the person or authority under whose direction, whether particular or general, it was produced or brought into existence, of using it or its contents in order to obtain legal advice or to conduct or aid in the conduct of litigation, at the time of its production in reasonable prospect, should be privileged and excluded from inspection": at p 677.
4. It is the purpose of the production of the document which is determinative: Barwick CJ at p 677. To attract the privilege "the document must be called into being for use in litigation or for advice": Stephen, Mason, and Murphy JJ at p 683. Further, "[a]n individual seeking legal advice cannot be required to disclose the information he communicated to his legal adviser, nor the nature of the advice received; nor may the legal adviser disclose it": Grant at p 686.
5. As Jacobs J put it, "communications with one's legal adviser are privileged from disclosure and the privilege extends not only to communications actually made but to material prepared for the purpose of communication thereof to the legal adviser": Grant at p 690.
6. This is why in this case the subpoena itself establishes the privilege claimed. It requiring as it does the production of documents evidencing instructions or the preparation and filing of the defence of the claim advanced against it in these proceedings. What was decided in Grant permits no conclusion other than that all such documents are privileged at common law.
7. It is also settled that such privilege can be established by "pointing to the nature of the documents or by evidence describing the circumstances in which they were brought into existence": Grant at p 689. The latter is what Ms Phiri's evidence addresses.
8. Even without inspection or further description of the particular documents caught by the subpoena, I am thus satisfied that they are privileged, unless that privilege has been waived, in Mann v Carnell for example, by disclosure to a third party: at [119].

No claim of waiver of any privilege is advanced

1. But there was no claim of waiver here advanced for Mr Woolner.
2. The test for waiver is that discussed in Expense Reduction Analysts Group Pty Ltd v Armstrong Strategic Management and Marketing Pty Ltd (2013) 250 CLR 303; [2013] HCA 46 at [30]. Such waiver involves an intentional act done with knowledge, whereby the party abandons the privilege by acting in a manner inconsistent with it. Waiver may be express or implied. It will be imputed by the law even though that consequence was not intended by the party losing the privilege where the actions of the party "are plainly inconsistent with the maintenance of the confidentiality which the privilege is intended to protect".
3. This requires an evaluative consideration of the particular circumstances, informed by considerations of fairness.
4. In this case, on its face the original defence evidences that the Health District did not then rely on any applicable limitation period, even though the model litigant rules contemplated that reliance could be placed on such a defence, if available. Ms Phiri's evidence goes to that only being pleaded, after particulars were pursued.
5. It is thus pertinent to what lies in issue in relation to the subpoena, that it was accepted for Mr Woolner that what Ms Phiri said in her February affidavit did not give rise even to an implied waiver of any confidentiality lying in the disputed documents.
6. That concession was properly made. Ms Phiri did not thereby disclose any instructions or advice given before the defence was filed, or the reasons which resulted in that defence not pleading a limitation defence. Her affidavit also made no other assertions about the contents of any privileged communications, inconsistent with the maintenance of their confidentiality.

The client legal privilege provisions of the Evidence Act

1. These provisions are concerned with a "confidential communication" or a "confidential document", terms defined in s 117(1) of the Evidence Act. In the case of confidential communications, to mean a communication made in such circumstances that, when it was made: (a) the person who made it, or (b) the person to whom it was made, was under an express or implied obligation not to disclose its contents, whether or not the obligation arises under law.
2. Confidential documents are similarly defined in s 117(1) by reference to the obligation not to disclose their contents. As I have explained, at common law there is such an obligation attaching to the subpoenaed documents, flowing from the solicitors' retainer to act for the Health District in these proceedings.
3. There was no issue that given the nature of their relationship as client and lawyers, terms also defined in s 117, communications between the Health District and its solicitors and documents it or they prepared could fall within s 118 and/or s 119, because they fell within the s 117 definitions.
4. I am satisfied that communications and documents evidencing the Health Service's instructions and what its defence of Mr Woolner's claims was or was not to raise, certainly fall within the s 117(1) definitions. In the result, in summary, under the Evidence Act: 1. evidence which would result in the disclosure of such communications or documents, if made for the dominant purpose of the solicitors providing legal advice about its instructions or defence, may not be adduced over the objection of the Health District: s 118; 2. the word "adduced" is not defined but must include evidence adduced through cross-examination of a witness such as Ms Phiri; 3. evidence of such confidential communications or documents may also not be adduced over the objection of the Health District, if they were made or prepared for the dominant purpose of it being provided with professional legal services relating to these proceedings: s 119; 4. evidence of such confidential communications may only be adduced: 1. with the consent of the Health District: s 122(1); 2. if the Health District has acted inconsistently with objecting to the communications being adduced: s 122(2). It will have so acted if: 1. it knowingly and voluntarily disclosed the confidential communications, including through its authorised employees, agents, or lawyers: s 122(3)(a) and (4), or 2. the substance of such communications were communicated with its express or implied consent: s 122(3)(b).
5. The Health District does not consent to the subpoenaed documents being adduced and it is not contended that there has been any waiver.

Privilege is also established under the Evidence Act

1. Despite the submissions advanced about the inadequacies of Ms Phiri's affidavit, given what the model rules actually provide, there is in this case no real dispute about the relevant facts, necessarily, given what the subpoena itself requires. It is entirely directed to instructions and the defence.
2. I am also satisfied that any communications or documents about, concerning or revealing instructions or why a defence was pleaded as it was, directed to a party's solicitors, are also privileged under these provisions of the Evidence Act. The reasons for that conclusion begin with the solicitors' retainer necessarily binding them to keep such communications and documents confidential, about which there can be no real issue, given the common law position.
3. It is also pertinent to note that the authorities relied on for Mr Woolner were not concerned with pleadings.
4. In issue in Hancock was an order for production of trust documents by a party who claimed they were subject to legal professional privilege, not instructions or pleadings. It was claimed that those documents had been prepared for the dominant purpose of that party being provided with legal advice, not that the documents evidenced instructions given about the defence of the proceedings.
5. There it was concluded that to establish privilege in such trust documents, which had been described in a schedule prepared by a solicitor who had no contemporaneous involvement in their preparation, evidence establishing that such documents were so privileged had to be led.
6. 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].
7. 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.
8. It follows that all of the documents either: 1. evidence instructions and so are necessarily concerned with the Health Service being provided with its solicitors' legal services in relation to those proceedings; or 2. evidence the preparation or filing of the defence and so are necessarily either concerned with the Health Service being provided with its solicitors' services in relation to these proceedings and/or their advice.
9. 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.
10. It is the production expressly being pursued which makes that unnecessary, given the position at common law and what the statutory scheme is concerned with, confidential communications and documents.
11. In reality, the creation of such a list would involve a waste of time and the parties' resources, given what really lies in issue between them about the subpoena here in issue.
12. 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.
13. 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.
14. 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.

Costs

1. The parties agreed that the question of the costs of the motion should be deferred until the February motion is determined. It is listed for hearing on 12 July 2023. I agree, given how these motions are interrelated.

Orders

1. For the reasons given I order that: 1. The subpoena is set aside; and 2. Costs are reserved until the February motion is determined.

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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: 03 July 2023