Maristar Pty Limited v Toohey
[1996] QDC 269
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- Maristar Pty Limited v Toohey[1996] QDC 269
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Maristar Pty Limited v Toohey[1996] QDC 269
Maristar Pty Limited v Toohey[1996] QDC 269
DISTRICT COURT | Plaint No 121 of 1992 |
CHAMBERS
JUDGE O'SULLIVAN
MARISTAR PTY LIMITED | Applicant (Defendant) |
and
MARIE JEAN TOOHEY | Respondent (Plaintiff) |
DATE 06/11/96
JUDGMENT
HER HONOUR: The defendant seeks an order that “the plaintiff deliver an amended statement of loss and damage pursuant to Rule 149A of the District Court Rules and that such amended statement include reference to a report obtained from Mr Roger Kahler of Geoff MacDonald & Associates Pty Ltd and that the plaintiff provide to the defendant at a reasonable charge a copy of the report of Roger Kahler”.
The existence of the Kahler report sought to be obtained became known by virtue of the following passage in a letter from Doctor White, orthopaedic surgeon, to solicitors for the plaintiff dated 9 February 1995, as follows:—
“With respect to the engineering report and associated photographs concerning the type of work that she has been doing in August 1990 I would agree to the inappropriate method of lifting, etcetera. I further agree that it is certainly possible that such activity can lead to a disc prolapse particularly if there has been some weakening of the wall of the annulus as a consequence of previous injuries/degenerative change”.
Counsel for the defendant/applicant had advanced a number of arguments to support disclosure of the Kahler report. The first of these relied on the decision in Seib v Suncorp Insurance and Finance (1992) 15 Qd.R. 61. He relied in particular on the following passage at page 63:—
“It would seem strange if, as an exception to the legal professional privilege rule, a party were obliged to disclose a medical report compiled for the sole purpose of pending litigation and yet be entitled to withhold documents on which the opinion as expressed in the report is based. The purpose of Rule 149A, which is a radical departure from the hitherto held Rules of disclosure of information otherwise privileged, appears to be to appraise the opposite party of all relevant information in the hands of the plaintiff or his solicitor bearing on economic loss in actions for damage for personal injuries. Exceptions to the privilege rule are limited to that class of action. Presumably a further purpose of such disclosure before trial is to encourage negotiations and to induce pre-trial settlements by the parties to the litigations. For these reasons I think the document is disclosable.”
Clearly His Honour found that the document sought to be disclosed fell within the category of “documents on which the opinion expressed in the report is based”.
Counsel for the applicant submitted that the Kahler report forms the basis of an expert opinion which is the subject of disclosure under Rule 149A.
He submitted that the opinion expressed by Doctor White goes beyond damages and is also an opinion with respect to breach of duty and negligence; the respondent seeks all the advantages of such a statement (knowing that in all likelihood a Court would consider same) yet hides behind a claim of privilege when the applicant requests a copy of the bases of that opinion; the respondent cannot have it both ways; if the view is that Rule 149A deals with quantum only, then the respondent's actions are, he submitted, a misuse of Rule 149A; all privilege has been lost. I agree with counsel that fairness is relevant, as revealed in the authorities I will discuss later.
I agree that the last paragraph of Doctor White's report of 9 February 1995 does purport to be an opinion with respect to breach of duty and negligence. As I indicated at the hearing of this application, I wonder on what basis such a statement is admissible because on its face it would seem that Doctor White is purporting to be an expert concerning inappropriate methods of lifting. This criticism does not extend to the same extent to the second sentence of the paragraph, although it impinges on liability because it deals with causation.
The rest of the report of Doctor White deals with his medical opinion and is relevant to the issue of quantum, not liability. Thus, the report deals with two separate subject matters, namely, quantum and liability. Counsel for the applicant submitted that it is not possible to “surgically remove” the privileged part of the White report. I do not agree.
In Curlex Manufacturing Pty Ltd v Carlingford Aust. General Insurance Ltd (1987) 2 Qd.R 335, McPherson J criticised the “separate subject matters” test. He considered that the relevant consideration is whether it is practical to seal up the privileged part. I do not know how the defendant came to have the White report including the reference to the privileged Kahler report. If it was given a copy, it was not sealed up. This is relevant to waiver of privilege.
I am of the view that Rule 149A deals exclusively with questions of quantum and not liability.
Rule 149A is in its terms quite different from Order 35 Rule 5 (2) of the Supreme Court Rules which states, “A document consisting of a statement or report of an expert is not privileged from disclosure”.
Counsel for the applicant submits that privilege has been lost. He refers in particular to a passage from Baker v Campbell 153 C.L.R. 52 at 80. He also relies on a passage from Seib (supra) at 63, “I should add that I think it is reasonably arguable that simply because the document is in the possession of the third party it becomes disclosable...”.
The “third party exception” to legal professional privilege states that a third party who obtains a privileged document or a copy of it by being given it is not precluded from giving evidence of the contents of the communication or document despite the legal professional privilege which exists. This principle is based on the authority of Calcraft v Guest (1898) 1 Q.B. 759. In “Law of Privilege” (1992) Law Book Company, McNicol states at page 85:—
“Although there has been a paucity of Australian decisions in this area, it appears from a few Australian authorities which do exist that the Australian Courts' attitude will be to eschew the Calcraft v Guest Rule either indirectly by finding technical distinctions on the facts or by ingenuously recategorising the fact situations so as to dispense with the need for the Calcraft v Guest rule altogether”.
The author refers in particular to the Victorian case of R v Braham and Mason (1976) V.R. 547, and the findings that the presence of the police officer provided evidence that the communication by the accused with his solicitor was not intended to be confidential and hence legal professional privilege did not apply, and that each case must be examined on its facts to decide whether the communication was intended to be confidential; the fact that a communication was made in the presence of a third party (or given to a third party) does not, however, necessarily destroy the privilege but it is a relevant consideration in deciding whether the communication was intended to be confidential.
It becomes necessary to consider whether privilege has been waived. Waiver has been described as “an act of conduct which amounts to the forgoing of a right to keep certain information confidential”:Re Stanhill Consolidated Ltd (1967) V.R. 749, 752. The immediate result of waiver is the release or disclosure of information which was formerly protected. Waiver may be expressed or implied. Here there is material to suggest that the claimants to the privilege (the plaintiff) did not have an actual intention to waive privilege by releasing the Kahler report to Doctor White. However, there may be implied waiver. The principle which is applicable is set out in Wigmore on Evidence, quoted in Attorney General for the Northern Territory v Maurice (1986) 61 A.L.J.R. 92. At p.93:—
“In deciding it, regard must be had to the double elements that are predicated in every waiver, i.e., not only the element of implied intention, but also the element of fairness and consistency. A privileged person will seldom be found to waive, if his intention not to abandon could alone control the situation. There is always also the objective consideration that when his conduct touches a certain point of disclosure, fairness requires that his privilege shall cease whether he intended that result or not. He cannot be allowed, after disclosing as much as he pleases, to withhold the remainder. He may elect to withhold or to disclose, but after a certain point his election must remain final.”
Gibbs CJ went on to say at page 94:—
“The decisions in which this question has been considered seem to me to be particular applications of the rule that in the case where there is no intentional waiver 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. Thus it has been held that the privilege in respect to the document is not waived by mere reference to that document in pleadings...or in affidavit..., although the position will be different if the document is reproduced in full in the pleading or affidavit...These cases may be explained by saying that it is not unfair or misleading to refer to a document in a pleading or affidavit which is not put into evidence but that if the document is set out in full the privilege is waived. It is not difficult to see that where a document deals with a single subject-matter it would be unfair to allow a party to use part of the document and claim privilege as to the remainder.”
(As I have already indicated, I do not consider that the report of Doctor White deals with “a single subject matter”.)
The authorities reveal that the fact of possession by the third party is not of itself determinative.
It has been held that a mere reference to documents or other material in the pleading does not amount to implied waiver of the privilege attaching to those documents: Butts Gas and Oil Co v Hammer (No 3) (1980) 3 All E.R. 475; Roberts v Oppenheim (1884) 26 Ch.D. 724. “Simple reference to a privileged document in an affidavit will thus not necessarily amount to waiver: Tate and Lyle International Ltd v Government Trading Corporation (1984) L.S.Gaz.R 3341, but more extensive reliance may well do so: Eguiticorp Industries Group Ltd v Hawkins (1990) 2 N.Z.L.R. 175”: Cross and Tapper on Evidence (1995) Butterworths at p. 475.
In Eguiticorp (supra) the High Court of New Zealand referred to passages from Attorney General for the Northern Territory v Maurice (supra) and Butts Gas (supra), and said, at page 180:—
“A bare reference to a document in a pleading does not waive any privilege that may attach to it, but if the document is reproduced in full in the pleadings then its confidentiality has gone, where the line is to be drawn between those two extremes may be a matter of some nicety. To find where this case lies between those two extremes it is necessary to look at what is said with some care....”
I would, with respect, adopt these comments - whether the last paragraph of Doctor White's report is between the two extremes is also a matter of “some nicety”. In Eguiticorp the Court found that:—
“In the present instance a selected and substantial part of the Jones Report has indirectly been disclosed in an important interlocutory proceeding, with the clear purpose in my view of adding weight to the plaintiffs' opposition and thus to influence the Court in its consideration of the interlocutory applications. It is that in particular which introduces the element of unfairness or the possibility thereof.” (Page 182).
I consider that a different finding is appropriate here because there is a significant difference between the disclosure there and here, both as to size and purpose of the disclosure. The content of the privileged report was not disclosed (although hinted at). I consider that non-disclosure here does not lead to unfairness.
The authorities suggest that different considerations apply where one document refers to or mentions another document. This is waiver by implication or associative waiver. The principle is that a document mentioned in or connected with a document for which privilege has been waived themselves become liable to disclosure. In Attorney General for the Northern Territory v Maurice (supra) Gibbs CJ discussed the decision in General Accident Fire & Life Assurance Corporation Limited and Others v Tanter and Others (1984) 1 W.L.R. 100 (which includes an extensive discussion of the relevant principles concerning privilege). After a review of the authorities, His Honour concluded that the question is whether the disclosure or use of the material that has been made renders it unfair to uphold the privilege in the associated material, and although the question whether the material that has been disclosed has been used in evidence is relevant, it is not decisive.
In Attorney General for the Northern Territory v Maurice (supra) the Court said at page 100:—
“Thus, if in a pleading the contents of a privileged communication are set out, then the privilege attaching to that communication may be waived by the pleadings. But for this to happen the content of the communication itself must be revealed. The mere reference to the occasion, such as a conversation or a letter, without reference to its content will not constitute a waiver of the privilege: Butts Oil Co v Hammer ... Roberts v Oppenheim ...”.
The Court held that as the document in question did not disclose the content of any privileged communication and so did not abandon the element of confidentiality which the privilege protects, there was therefore no waiver of privilege.
The rationale of the associative waiver is that it would be unfair to allow reliance on legal professional privilege to resist scrutiny which could permit discovery of the true effect of the disclosed documents.
Here, the true effect of the disclosed document, the White report, concerns medical matters relating to quantum, matters required to be disclosed pursuant to Rule 149A. It is not necessary to scrutinise the Kahler report in order to permit discovery of the true effect of the White Report.
I am of the view that privilege has not been lost by means of implied waiver or associative waiver.
Counsel for the applicant further submitted that on an ordinary reading of Rule 149A3(a)(ii)(v), the Kahler report is disclosable. He referred to King v Nolan (1992) 2 Qd.R at 498 and Cardakliya v Mt Isa Mines Ltd (Unreported - Court of Appeal 170 of 1993 - delivered 6/4/1994).
As I have already indicated, I do not consider that the Kahler report falls within Rule 149A.
The third submission of counsel for the applicant is that if Rule 149A is said to be silent or non-prescriptive as to disclosure of Mr Kahler's report, on the facts before the Court the provisions of Order 35 Rule 5 (2) of the Rules of the Supreme Court apply. He referred to King v Nolan (supra), Cardakliya (supra) and Rule 4 of the District Court Rules.
I consider that the authorities do not support the submission. I consider that Rule 4 does not apply. This is not a situation where “such remedy, procedure or power is not provided for in these Rules”. It may be that a Rule similar to the Supreme Court Rule ought to be included in the District Court Rules - in order to facilitate pre-trial negotiations and to narrow issues for trial - but that is an entirely different matter. I can see some practical commonsense in the comment of Demack J in Geary & Geary v Heupenden (Unreported - 20.3.92) that “all medical reports and other documents submitted to the examining medical practitioner should in justice be disclosed.” However, I am bound by the authorities and the Rules as they are.
I find that the plaintiff is not obliged to disclose the report of Mr Kahler.
The further order sought by the applicant is that the action be restored to the call-over list or set down for trial. Counsel submitted that by virtue of his report dated 5 March 1996, Doctor White has given an estimate of disability in any event.
The plaintiff was examined on 24 October 1996 but a report is not yet available from Doctor White. I consider that when this report is to hand, it ought to be provided to the defendant in order to reveal the stability of the plaintiff's medical condition. I consider that in any event in view of the effluxion of time, this matter ought to be the subject of a Court review at the next civil sittings.
I refuse the Application. I order that the defendant pay the plaintiff's costs of the Application to be taxed.