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Mahoney v Salt

 

[2012] QSC 43

 

SUPREME COURT OF QUEENSLAND

PARTIES:

FILE NO/S:

Trial Division

PROCEEDING:

Application

ORIGINATING COURT:

DELIVERED ON:

March 6, 2012

DELIVERED AT:

Brisbane 

HEARING DATE:

February 6, 2012

JUDGE:

Boddice J

ORDER:

  1. The application for disclosure is dismissed.
  2. The compulsory conference is to be held on or before 30 April 2012.

CATCHWORDS:

PROCEDURE – DISCOVERY AND INTERROGATORIES – DISCOVERY AND INSPECTION OF DOCUMENTS – PRODUCTION AND INSPECTION – GROUNDS FOR RESISTING PRODUCTION – CLIENT LEGAL PRIVILEGE – WHAT CONSTITUTES – PARTICULAR CASES – where the applicant delivered to the respondents a notice of claim pursuant to the Personal Injuries Proceedings Act (Qld) 2002 – where the applicant seeks orders, pursuant to s 35(1) of that Act, that the respondents disclose certain documents – where the respondents object to disclosing the statements on the basis that they are the subject of legal professional privilege – whether legal professional privilege exists in the documents

PROCEDURE – DISCOVERY AND INTERROGATORIES – DISCOVERY AND INSPECTION OF DOCUMENTS – PRODUCTION AND INSPECTION – GROUNDS FOR RESISTING PRODUCTION – CLIENT LEGAL PRIVILEGE – WAIVER OF PRIVILEGE – where the applicant contends the respondents have failed to establish legal professional privilege – where the applicant contends the respondents have alternatively waived legal professional privilege – whether legal professional privilege exists in the documents – whether privilege was waived

STATUTES – ACTS OF PARLIAMENT – INTERPRETATION – PRESUMPTIONS AS TO LEGISLATIVE INTENTION – NOT TO ALTER COMMON LAW RIGHT, PRIVILEGE OR DOCTRINE - where the applicants claim the Personal Injuries Proceedings Act (Qld) 2002 restricts the application of legal professional privilege – whether the documents the subject of the application were “investigative reports” within s30(2) of the Act

Personal Injuries Proceedings Act (Qld) 2002

Shorter Oxford English Dictionary (5th Edition, Oxford)

Commissioner of Australian Federal Police v Propend Finance Pty Ltd (1997) 188 CLR 501

Daniels Corporation International Pty Ltd v Australian Competition and Consumer Commission (2002) 213 CLR 543

Esso Australia Resources Ltd v Federal Commissioner of Taxation (1999) 201 CLR 49

Felgate v Tucker [2011] QCA 194

Grant v Downs (1976) 135 CLR 674

Grosvenor Hill (Queensland) Pty Ltd v Interchase Corporation and Ors [1997] QCA 450

Interchase Corporation Ltd (in liq) v Grosvenor Hill (Queensland) Pty Ltd (No 1) [1999] 1 Qd R 141 at 162

Pratt Holdings Pty Ltd and Anor v Commissioner of Taxation (2004) 136 FCR 357

State of Queensland v Allen [2011] QCA 311

Trade Practices Commissioner v Stirling (1979) 36 FLR 244

Waterford v Commonwealth (1987) 163 CLR 54

Watkins v State of Queensland [2008] 1 Qd R 564

COUNSEL:

JP Kimmins for the applicant

K Holyoak for the respondents

SOLICITORS:

Shine Lawyers for the applicant

Gadens Lawyers for the respondents

[1] On 13 December 2010, the applicant delivered a Notice of Claim pursuant to the Personal Injuries Proceedings Act 2002 (“the Act”) in respect of an injury sustained when she fell at the respondents’ premises in Kelso in the State of Queensland on 28 December 2009.  The respondents are the applicant’s mother and step father.

[2] The applicant seeks orders, pursuant to s 35(1) of the Act, that the respondents disclose copies of a draft statement of the female respondent and signed statements of the male and female respondents.  The applicant also seeks orders pursuant to s 36(5) of the Act that a compulsory conference be held, and that the respondents attend in person.

[3] The respondents object to disclosing the statements on the ground they are properly the subject of legal professional privilege.  They oppose any order in respect of the compulsory conference on the ground the application is premature.

Background

[4] The applicant described the incident the subject of her claim as follows in the Part 1 Notice of Claim:

 

“[The applicant] was on the back veranda/patio eating dinner between 7:00pm and 7:30pm.  Her two young children were swimming in the swimming pool which is located directly off the patio.  Access to the swimming pool from the patio area is to walk to the end of the patio (along the pool fencing) and onto the paved area leading to the back yard and pool gate.  There is a step down from the patio to the outdoor area where the claimant stepped off the edge of the patio, fell and hit her head on a brick pillar sustaining significant injuries to her neck, spinal cord and nerves in her back.”

[5] The applicant contends the step down between the edge of the patio area of the respondents’ premises and a tiled area adjacent to the swimming pool was approximately 158mm high.  On prior occasions, loose pavers were used to form a ramp down to the lower tiled area.  These paver steps are alleged not to have been present on the evening of 28 December 2009.

[6] The respondents’ insurer instructed solicitors to act in respect of the applicant’s claim by letter dated 23 February 2010.  The solicitors’ instructions included advising on whether indemnity should be extended to the respondents, and arranging factual investigations to be completed by loss adjustors.

[7] By letter dated 12 January 2011, the respondents’ solicitors requested G Hughes & Associates undertake investigations of the claim.  Relevantly, that letter stated:

 

“To retain the benefit of legal professional privilege, we ask that you provide reports to us in the following way:

1.All discussions with witnesses are to be reduced to a written statement, even if the witness has not agreed to provide one.

2.Witness statements are to be forwarded to us separately from your investigation report, with a ‘with compliments’ slip which simply notes our reference, not with a covering letter.

3.Do not attach (by staples, paperclips or otherwise) the witness statements to your investigation report or to your statement of opinion, and do not refer to them in the body of the report.

4.Any disclosable document – that is, those which have not been brought into existence for the dominant purpose of litigation – may be attached to your investigation report.  This may include, for instance, incident reports, leases, agreements, contracts, specifications, building designs, plans, etc.  Search results may be attached to your report.

If you are in any doubt whether a particular document is disclosable, please contact us before completing your report.  Otherwise, we suggest you simply attach any documents obtained from their parties to their statements.”

[8] The assessors provided a loss adjustors’ report dated 29 April 2011.  This report, which was disclosed to the applicant’s solicitors by letter dated 3 August 2011, contained within it details provided by the female respondent in relation to the existence of a temporary ramp and the incident on 28 December 2009.  By letter dated 10 August 2011, the applicant’s solicitors requested that the respondents disclose a copy of any statements obtained from the female respondent. 

[9] The loss adjustors forwarded to the respondents’ solicitors a draft unsigned statement from the female respondent on 5 May 2011.  The respondents’ solicitors received signed statements dated 14 December 2011 from the respondents from the loss adjustors on 20 December 2011.  Despite requests, the respondents’ solicitors have declined to provide those statements to the applicant.

Disclosure application

[10] The applicant contends the draft statement of the female respondent, and the signed statements of the respondents, are required to be disclosed, as the applicability of legal professional privilege to such documents is restricted by the Act’s requirements that a respondent give to a claimant copies of documents in the respondent’s possession that are directly relevant to a matter in issue, including reports or other documentary material about the incident alleged to have given rise to the personal injury claim.[1]  The Act defines “incident”, in relation to personal injury, as meaning the accident, or other act, omission or circumstance, alleged to have caused all or part of the personal injuries.[2] 

[11] The applicant contends the statements constitute investigative reports, which must be disclosed notwithstanding any claim for legal professional privilege.[3]  Alternatively, the applicant contends the statements must be disclosed pursuant to s 20 of the Act.  The applicant further contends the respondents have failed to establish legal professional privilege, or have waived that privilege.

[12] The respondents contend the draft statement and signed statements are properly the subject of legal professional privilege, as the Act expressly retains a party’s entitlement not to disclose information or documentary material the subject of the legal professional privilege.[4]

[13] In accordance with the usual practise, the respondents handed up, for the Court’s examination, copies of the documents in dispute.  The applicant accepted this was an appropriate procedure.  It is consistent with the Court’s general approach not to be hesitant to examine documents over which a claim of privilege is made.[5]  A perusal of these documents confirms that they are in the nature of witness statements prepared at the request of the respondents’ solicitors.

The legislative scheme

[14] Relevantly, the Act provides:

“4Main purpose

(1)The main purpose of this Act is to assist the ongoing affordability of insurance through appropriate and sustainable awards of damages for personal injury.

(2)The main purpose is to be achieved generally by –

(a)providing a procedure for the speedy resolution of claims for damages for personal injury to which this Act applies; and

(b)promoting settlement of claims at an early stage wherever possible; and

(c)ensuring that a person may not start a proceeding in a court based on a claim without being fully prepared for resolution of the claim by settlement or trial; and

(d)putting reasonable limits on awards of damages based on claims; and

(e)minimising the costs of claims; and

20Respondent must attempt to resolve claim

(1)Within the period prescribed under a regulation or, if no period is prescribed, within 6 months after a respondent receives a complying part 1 notice of claim, the respondent must –

(a)take reasonable steps to inform himself, herself or itself about the incident alleged to have given rise to the personal injury to which the claim relates; and

(b)give the claimant written notice stating –

(i)whether liability is admitted or denied; and

(ii)if contributory negligence is claimed, the degree of the contributory negligence expressed as a percentage; and

(c)if the claimant made an offer of settlement in part 2 of the notice of a claim, inform the claimant whether the respondent accepts or rejects the offer, or if the claimant did not make an offer of settlement in part 2 of the notice, invite the claimant to make a written offer of settlement; and

(d)make a fair and reasonable estimate of the damages to which the claimant would be entitled in a proceeding against the respondent; and

(e)make a written offer, or counteroffer, of settlement to the claimant setting out in detail the basis on which the offer is made, or settle the claim by accepting an offer made by the claimant.

(2)If part 1 of a notice of a claim is not a complying part 1 notice of claim, a respondent is taken to have been given a complying part 1 notice of claim when 

(a)the respondent gives the claimant notice that the respondent waives compliance with the requirement that has not been complied with or is satisfied the claimant has taken reasonable action to remedy the noncompliance; or

(b)the court makes a declaration that the claimant is taken to have remedied the noncompliance, or authorises the claimant to proceed further with the claim despite the noncompliance.

(3)An offer, or counteroffer, of settlement must be accompanied by a copy of medical reports, assessments of cognitive, functional or vocational capacity and all other material, including documents relevant to assessing economic loss, in the offerer’s possession that may help the person to whom the offer is made make a proper assessment of the offer.

(4)A respondent or claimant to whom a written offer, or counteroffer, of settlement is made must, unless a response to the offer is to be made under subsection (1)(c), respond in writing to the offer within the period prescribed under a regulation or, if no period is prescribed, within 3 months after receiving it, indicating acceptance or rejection of the offer.

(5)An admission of liability by a respondent under this section –

(a)is not binding on the respondent in relation to any other claim; and

(b)is not binding on the respondent at all if it later appears the admission was induced by fraud.

27Duty of respondent to give documents and information to claimant

(1)A respondent must give a claimant

(a)copies of the following in the respondent’s possession that are directly relevant to a matter in issue in the claim-

(i)reports and other documentary material about the incident alleged to have given rise to the personal injury to which the claim relates;

(ii) reports about the claimant's medical condition or prospects of rehabilitation;

(iii) reports about the claimant's cognitive, functional or vocational capacity; and

(b)if asked by the claimant

(i)information that is in the respondent's possession about the circumstances of, or the reasons for, the incident; or

(ii)if the respondent is an insurer of a person for the claim, information that can be found out from the insured person for the claim, about the circumstances of, or the reasons for, the incident.

(2)A respondent must –

(a)give the claimant the copies mentioned in subsection (1)(a) within the period prescribed under a regulation or, if no period is prescribed, within 1 month after receiving a complying part 1 notice of claim and, to the extent any report or documentary material comes into the respondent's possession later, within 7 days after it comes into the respondent's possession; and

(b)respond to a request under subsection (1)(b) within the period prescribed under a regulation or, if no period is prescribed, within 1 month after receiving it.

(3)If the claimant requires information provided by a respondent under this section to be verified by statutory declaration, the respondent must verify the information by statutory declaration.

(4)If a respondent fails, without proper reason, to comply fully with this section, the respondent is liable for costs to the claimant resulting from the failure.

30Nondisclosure of particular material

(1)A party is not obliged to disclose information or documentary material under division 1 or this division if the information or documentary material is protected by legal professional privilege.

(2)However, investigative reports, medical reports and reports relevant to the claimant’s rehabilitation must be disclosed even though otherwise protected by legal professional privilege but they may be disclosed with the omission of passages consisting only of statements of opinion.

(3)If a respondent has reasonable grounds to suspect a claimant of fraud, the respondent may apply, ex parte, to the court for approval to withhold from disclosure under division 1 or this division information or documentary material, including a class of documents, that

(a)would alert the claimant to the suspicion; or

(b)could help further the fraud.

(4)If the court gives approval on application under subsection (3), the respondent may withhold from disclosure the information or documentary material in accordance with the approval.

(5)In this section

investigative reports does not include any document prepared in relation to an application for, an opinion on or a decision about, indemnity against the claim from the State.”

[15] Legislative provisions are not to be construed as abrogating important common law rights, such as legal professional privilege, in the absence of clear words or a necessary implication.[6]  Insofar as the Act is concerned, Parliament has expressed its intention “with irresistible clearness” in s 30.  Privileged communications which are “investigative reports”, “medical reports”, and “reports relevant to the claimant’s rehabilitation” must be disclosed, subject only to the omission of statements of opinion.[7] 

Discussion

[16] The three statements the subject of this application were prepared by loss adjustors on the express instructions of the respondents’ solicitors, who had been retained to advise in relation to the applicant’s claim.  Whilst the statements were prepared during the loss adjustors’ investigation of the incident, the individual statements are separate documents in the form of witness statements. 

[17] The respondents contend the statements are privileged as they were brought into existence for the dominant purpose of providing the respondents’ insurer with legal advice.[8]  Legal professional privilege will extend to a document which is produced, or brought into existence, with the dominant purpose of using it or its contents in order to obtain legal advice or to aid in the conduct of litigation.[9]  To be protected by legal professional privilege, the document must represent a confidential communication brought into existence for the requisite dominant purpose.[10] 

[18] The privilege extends to communications with third parties at the request of a party’s solicitor if made for the dominant purpose of enabling the solicitor to furnish legal advice.[11]  Such communications can include communications prepared by third parties, where the dominant purpose of the communication is for the purposes of obtaining legal advice.[12]

[19] The maintenance of advice privilege under the Act was expressly recognised in Watkins v State of Queensland.[13] 

“ [71] Reading s.20, s.27 and s.30 together, one can see that s.30(1) is concerned to remove from the scope of compulsory disclosure, under s.20 or s.27 documents whose claim to privilege arises because they were brought into existence for reasons other than compliance with s.20 or s.27 of the PIPA.

[83] … Secondly, and more importantly perhaps, reports which are obtained for the dominant purpose of enabling a respondent to a claim to take legal advice on the claim will be privileged: such reports are outside the scope of s.20(3) and, even if they fall within the descriptive words in s.27(1)(a)(i), the benefit of the privilege would be maintained by s.30(1) of the PIPA …”

[20] The applicant submits the statements in question are not protected by legal professional privilege as they are properly to be characterised as investigative reports.  The term “investigative reports” connotes a report in respect of an investigation.  Ordinarily, a client’s instructions to lawyers and consequential notes and statements are not “reports”.[14]  Similarly, a statement of a witness of an incident or a solicitor’s file note which records that person’s recollection of the circumstances of the incident and the person’s opinion about the incident for use in anticipated litigation is not an “investigative report”.[15]

[21] Whilst the loss adjustors were undoubtedly undertaking an “investigation” of the incident, and a report from those loss adjustors would properly fall within the term “investigative report”, the particular statements do not have that quality.  The statements are not in the nature of a systematic examination or enquiry.[16]  They contain the respondents’ account of events relevant to the occasion in which the applicant fell.  The statements do not constitute “reports”, and certainly do not satisfy the ordinary meaning of “investigative reports”. 

[22] Alternatively, the applicant contended the documents were required to be disclosed pursuant to s 20 of the Act.  In support of that contention, the applicant relies on Watkins v State of Queensland.  In that case, the Court of Appeal held that s 30(2) of the Act was not intended to operate to preserve privilege in any of the documents described in s 20(3) of the Act.[17]  However, the circumstances of the present case are readily distinguishable from Watkins.

[23] Watkins concerned disclosure of a medical report obtained for the purposes of the pre-litigation procedures contemplated by the Act and, in particular, s 20.  Section 20(3) of the Act expressly requires delivery of copies of medical reports.  The statements the subject of the present disclosure application cannot in any way be characterised as medical reports.  Further, there is no evidence the statements were obtained for the purpose of complying with s 20 of the Act.  The respondents’ s 20 response was provided on 2 December 2011.  The signed statements were not obtained until after that date.  The respondents were not required to disclose the statements by s 20 of the Act.

[24] The applicant further contended the respondents had not properly established privilege.  Having considered the material, I am satisfied the respondents have properly established the existence of legal professional privilege in the draft statement and the signed statements.  Each constituted a confidential communication brought into existence for the dominant purpose of obtaining legal advice. 

[25] The applicant also contends the respondents have waived legal professional privilege by referring to the contents of the draft statement and statements in the loss adjustors’ reports which have been the subject of disclosure.  In support of this submission, the applicant relies on Watkins v State of Queensland where Keane JA (as the Chief Justice then was) said at [57]:

“…

In Attorney-General (NT) v Maurice (1986) 161 CLR 475, it was accepted in all judgments that the question whether a limited disclosure gives rise to an implied or imputed waiver of legal professional privilege ultimately falls to be resolved by reference to the requirements of fairness in all the circumstances of the particular case.  Thus, Gibbs C.J. saw the decided cases as establishing that:

‘… the question whether a waiver should be implied depends on whether it would be unfair or misleading to allow a party to refer to or use material and yet assert that that material, or material associated with it, is privileged from production.’ ”

[26] Having considered all of the circumstances and, in particular, the contents of the loss adjustors’ report, I am satisfied there has been no waiver of privilege in the present case.  It would not be unfair or misleading to allow the respondents to maintain privilege in respect of the draft statement and the signed statements notwithstanding reference to the female respondent’s version of events in the loss adjustors’ report.

[27] Finally, the applicant contends the respondents ought not to be able to claim privilege in respect of the draft statement and the statements having regard to the instructions given to the loss adjustors.  The applicant submits those instructions required the loss adjustors to deliberately engage in a course of action designed to prevent the applicant from having access to the witness statements, a procedure contrary to the objects of the Act. 

[28] The instructions provided by the solicitors highlighted the importance of retaining legal professional privilege.  The instructions did not involve a ruse designed to shroud with privilege a document not properly the subject of legal professional privilege, which is impermissible.[18]  Witness statements are a well recognised category of documents properly the subject of legal professional privilege. 

[29] Further, in seeking to ensure legal professional privilege is maintained, the instructions did not adopt a procedure contrary to the objects of the Act.  Whilst the main object of the Act is to encourage disclosure between the parties, the Act expressly retains legal professional privilege, except in specific circumstances.

[30] The draft statement and the signed statements are properly the subject of legal professional privilege, and are not required to be disclosed to the applicant.

Compulsory conference

[31] The applicant seeks an order that the respondents personally attend a compulsory conference, to be held on 11 April 2012.  The respondents have indicated a willingness to attend a compulsory conference at an appropriate time but contend it is premature to set that conference to a specified date.

[32] Whilst the date of any compulsory conference should be agreed between the parties, the claim needs to progress promptly.  To that end, the compulsory conference should be held by 30 April 2012.

Orders

[33] The application for disclosure is dismissed.

[34] The compulsory conference is to be held on or before 30 April 2012.

[35] I shall hear the parties as to costs.

Footnotes

[1] Section 27, Personal Injuries Proceedings Act.

[2] Schedule, Personal Injuries Proceedings Act.

[3] Section 30(2), Personal Injuries Proceedings Act.

[4] Section 30, Personal Injuries Proceedings Act.

[5] Esso Australia Resources Ltd v Federal Commissioner of Taxation (1999) 201 CLR 49 at 70 [52]; State of Queensland v Allen [2011] QCA 311 per Fraser JA at [6].

[6] Daniels Corporation International Pty Ltd v Australian Competition and Consumer Commission (2002) 213 CLR 543 at 553 [11].

[7] State of Queensland v Allen [2011] QCA 311 per Fraser JA at [21]; White JA at [64]; Fryberg J at [84].

[8] Affidavit of David Leslie Slatyer, paragraphs 8 and 18.

[9] Grant v Downs (1976) 135 CLR 674 per Barwick CJ at 677; Esso Australia Resources Ltd v Federal Commissioner of Taxation (1999) 201 CLR 49.

[10] Commissioner of Australian Federal Police v Propend Finance Pty Ltd (1997) 188 CLR 501 at 550.

[11] Trade Practices Commission v Sterling (1979) 36 FLR 244 at 245-6; Waterford v Commonwealth (1987) 163 CLR 54 at 87.

[12] See, generally, Pratt Holdings Pty Ltd and Anor v Commissioner of Taxation (2004) 136 FCR 357.

[13] [2008] 1 Qd R 564 per Keane JA (as the Chief Justice then was) at [72].

[14] Felgate v Tucker [2011] QCA 194 at [48].

[15] State of Queensland v Allen [2011] QCA 311 per Fraser JA at [27]; White JA at [66]-[67]; Fryberg J at [88].

[16] See definition of investigation in Shorter Oxford English Dictionary (5th Edition, Oxford).

[17] Watkins v State of Queensland [2008] 1 Qd R 564 per Keane JA at [72].

[18] Interchase Corporation Ltd (in liq) v Grosvenor Hill (Queensland) Pty Ltd (No 1) [1999] 1 Qd. R. 141 per Thomas J at at p 162.

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Editorial Notes

  • Published Case Name:

    Mahoney v Salt

  • Shortened Case Name:

    Mahoney v Salt

  • MNC:

    [2012] QSC 43

  • Court:

    QSC

  • Judge(s):

    Boddice J

  • Date:

    06 Mar 2012

  • White Star Case:

    Yes

Litigation History

No Litigation History

Appeal Status

No Status