Bowman v BBC Hardware Limited
[1998] QDC 281
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- Bowman v BBC Hardware Limited[1998] QDC 281
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Bowman v BBC Hardware Limited[1998] QDC 281
Bowman v BBC Hardware Limited[1998] QDC 281
IN THE DISTRICT COURT HELD AT BRISBANE QUEENSLAND | Plaint No 3435 of 1996 |
BETWEEN:
JAMES FREDERICK BOWMAN | Plaintiff |
AND:
BBC HARDWARE LIMITED (ACN 000 003 378) | Defendant |
REASONS FOR JUDGMENT - BOULTON D.C.J.
Delivered the 30th October 1998
This is an application made by the respondent to a Writ of non-party discovery to set aside the Writ.
The action is for personal injuries arising out of multiple workplace incidents over a period of time between mid-1994 and early 1996. The plaintiff was a delivery driver who was required to load and deliver building and hardware products.
In March 1994 the plaintiff's solicitors wrote to the defendant's solicitors to obtain information concerning the weights of certain building materials. This was to enable completion of an engineer's report which was being prepared for the plaintiff's solicitors by the present applicant. Such information was provided under cover of a letter dated 27th April 1998. On 23rd September 1998 the defendant's solicitors issued a Writ of Non-Party Discovery against the applicant.
The documents in the possession of the applicant are set out in a list which is Exhibit A to the affidavit of Mr Ho which was read and filed by leave on behalf of the applicant. In argument it emerged that there is really little dispute about the majority of the documents which are already in the hands of both parties to the litigation. The documents of importance in this application are:
- (8)rough notes
- (9)Report by Interchase dated 26th May 1998
- (15)Statement of James Bowman
Legal professional privilege has been claimed in respect of the abovementioned documents. Even in the absence of legal professional privilege, it is clear that the Court has a discretion whether or not to order production of documents. The party seeking production of the documents bears an onus of proving that the documents sought fall within the scope of the rule.
At the heart of the defendant's submission is the contention that RSC o. 35 r. 5(2) applies in the District Court pursuant to r. 4(1) of the Rules of the District Court.
Ir is appropriate to set out in brief summary the history behind the insertion of r. 4(1) of the District Court Rules and the later insertion of a new o. 35 into the Rules of the Supreme Court.
The District Courts Act and Other Acts Amendment Act of 1989 greatly enlarged the civil jurisdiction of the District Court. That Act repealed ss. 66-69 of the former Act and substituted new sections conferring the increased civil jurisdiction on the Court. In particular, s. 67 conferred on the District Court and any Judge thereof (subject to the Act and to the Rules of Court) all the powers and authorities of the Supreme Court. Section 67(3) provided as follows:
- “(3)Subject to this Act and to the Rules of Court, the practice and procedure of a District Court or a Judge thereof -
- (a)In exercising the jurisdiction conferred by this part; and
- (b)In enforcing any judgment or order made in the exercise of that jurisdiction,
shall so far as practicable be the same as the practice and procedure of the Supreme Court or a Judge thereof in like matters.”
It was in these circumstances that s. 4(1) was inserted into the District Court Rules:
“4(1) Where the Rules of the Supreme Court provide for a remedy, procedure, or power which may be granted, applied, or exercised whether before, at, or after judgment in the course of proceedings of a type which may be heard and determined in a District Court and such remedy, procedure, or power is not provided for in these Rules, the Rules of the Supreme Court relating to such remedy, procedure, or power shall, with all the necessary adaptations, apply to such proceedings in a District Court.”
In Maroochy Road Services Ptv Ltd v Dyke, Wylie Q.C., D.C.J. in the District Court at Brisbane on 19th September 1994, Appeal No. 87/1994 unrep pointed out that r. 4(a) is intended not only to avoid unnecessary repetition of provisions of the Rules of the Supreme Court but also to fill those lacunae in the District Court Rules where there can be found a remedy, power or procedure within the Rules of the Supreme Court.
In Jiminez v Jayform Contracting Pty Ltd (1993) 1 Qd.R. 610, the Queensland Court of Appeal held that RSC o. 32 r. 1(3) applied to the District Court by virtue of r. 4(1) of the District Court Rules. RSC o. 32 r. 1(3) related to the amendment of a pleading to correct the name of a party, a power which was not expressly available in the District Court Rules. Davies and McPherson JJA seemed to regard the unavailability of such a power in the District Court Rules as a preliminary requirement, stating at p. 614:
“It was argued faintly by the respondent that the presence of r. 23 and of a power to amend in r. 108 indicated that such a procedure was provided by the District Court Rules but there is no substance in that argument.”
On 1st May 1994, a new o. 35 was inserted into the Supreme Court Rules following an extensive review by the Litigation Reform Commission. Increasing complexity of civil actions in the Supreme Court was consuming much time and expense in the area of discovery of documents and the new o. 35 represented quite radical change to the long established court procedures.
It was the intention of the Litigation Reform Commission to introduce similar reforms to the District and Magistrates Court. In the Annual Report of the Commission for the 1993-1994 year, the Commission referred to the general objective of simplifying and standardising procedures in all three major Queensland Courts, and went on to say:
“To this end, the Commission intends that any new Rules of Court introduced into one of the Courts should be introduced in the other two Courts in terms which are, as far as possible, uniform.”
The Commission went on to refer to the new o. 35 RSC which had been passed by Executive Council on 11th February 1994 and which came into effect on 1st May 1994. The new rule narrowed the ambit of discovery and also limited access to interrogatories. It went on to say:
“The Commission intends to move to introduce disclosure rules in uniform terms in the District Court and Magistrates Court in the near future.”
That did not eventuate. In its 1994-1995 report, the Commission observed:
“Following the introduction of the Commission's new o. 35 RSC on 1 May 1994 the Commission has continued the process of finalising the drafting of rules for disclosure for the District Court and the Magistrates Court. It is hoped that they will be in operation later in 1995.”
Again this did not occur and in its Annual Report for 1995-1996, which was the final report of the Commission, it was observed:
“Following the introduction of new rules limiting and consequently reducing the cost of disclosure in the Supreme Court, the Commission has produced uniform rules for the District and Magistrates Courts. It has also produced rules requiring disclosure of oral evidence by requiring disclosure of the names of witnesses known to a party. These are also in final form.”
Despite being in final form, these rules have never been passed by Executive Council. The result is that the rules relating to discovery in the District Court are the longstanding and comprehensive rules which are much wider in their application and pose heavier obligations on the parties than the new RSC o. 35.
It cannot fairly be said that the current situation is one where a remedy, procedure, or power is not provided for in the District Court Rules or that there is a lacuna in the relevant District Court Rule. The District Court Rule represents a comprehensive code governing the topic. The new o. 35 RSC is perhaps more representative of a more modern and more stringent approach to litigation. It too is a comprehensive code.
Leaving aside the quite fundamental view that r. 4(1) of the District Court Rules is not intended to apply in such a situation, it seems to me that practicality also demands such a construction. It would create chaos if snippets of the Supreme Court Rule with its different objectives were sought to be interpolated into the District Court Rule. The obvious way to procure a similarity of approach is to persuade the Executive Council to pass the appropriate rules. The fact that Executive Council has not done so as at 1998 would suggest that the compelling need for reform, which existed in the Supreme Court, is not to be found, at least in the same degree, in the District and Magistrates Courts, and that the efficacy of the new RSC o. 35 may be still under review.
Whatever might be the reason, if there is one, it seems quite inappropriate to import o. 35 r. 5(2) RSC into the District Court Rules.
I have carefully considered the judgments of all three Justices in the Court of Appeal decision in Collins & Anor v Cockerill Appeal No. 4762 of 1997, 1st May 1998, where this particular point was mentioned but not resolved by the Court. That appeal proceeded on the assumption (without considering its correctness or otherwise) that o. 35 r. 5(2) of the Supreme Court has no application to the District Court Rules. I note that Ambrose J thought it arguable that the Supreme Court Rule might apply and thought such an approach would be consistent and conform with that taken by the Court in Jiminez. However, His Honour declined to make a finding along those lines as it was not necessary to the resolution of the appeal.
Somewhat different considerations arose in Grosvenor Hill (Queensland) Pty Ltd v Interchase Corporation Limited (in liquidation) & Anor C.A. Appeal No. 9424 of 1996, 19th December 1997, unrep. In that case, RSC o. 35 r. 5(2) did apply and the expert report was not protected by legal professional privilege.
In the present case, the expert report is a document which was prepared on the instructions of solicitors solely for use in litigation. It would seem to come clearly within the description of such documents given by Dawson J in Baker v Campbell (1983) 153 CLR 52 at 122:
“Legal professional privilege attaches only to communications made for the purpose of giving or receiving advice or for use in existing or anticipated litigation.”
In Commissioner of Australian Federal Police v Propend Finance Pty Ltd (1996-1997) 188 CLR 501 at 543, Gaudron J refers to the consideration “that legal professional privilege does not protect documents, as such, but protects communications between lawyer and client...However, a document which is brought into existence solely for the purpose of obtaining legal advice or solely for use in litigation and which is then provided to a lawyer for that purpose is, itself, a communication with the lawyer and in accordance with the decision of this Court in Grant v Downs, a privileged communication.”
The expert report in the present case falls within this description and is therefore subject to legal professional privilege. Likewise, the plaintiff's statement provided by instructing solicitors to the expert falls within the category of documents in Grosvenor Hill described as Category A and is likewise protected by legal professional privilege. The notes made by the expert are not protected. In Grosvenor Hill, Thomas J observed concerning the documents in Categories B, C, D and E:
“I would hold that in general, when an expert is engaged by a solicitor for the purpose of giving evidence in a case, documents generated by the expert and information recorded in one form or another by the expert in the course of forming an opinion are not a proper subject for a claim of legal professional privilege.”
That is not to say that an expert's rough notes should be produced in response to a Writ of Non-Party Discovery in the situation where the expert's report proper is the subject of legal professional privilege.
In Lebon v Lake Placid Resort Pty Ltd. (1995) 1 Qd.R. 24 at 28, Lee J considered the former RSC o. 35 r. 28 pointing out that:
“The applicant carried the onus of establishing that the documents sought to be produced was sufficiently identified; that it fell within the scope of the rule, viz., that it related to a matter in question in the cause; that it was document which the non-party could be required to produce at the trial (i.e. by subpoena duces tecum), and that it was necessary for the applicant to inspect the document at the stage at which it was being sought.”
At pp. 31-32, he went on to say:
“Apart from these differences, the new o. 40 r. 38A preserves the same principles which existed under o. 35 r. 28 as Mr North submitted. It does not enlarge the scope of documents or the nature of discovery available against a non-party, but merely alters the procedure. The same may be said of the procedure under s. 134A of the Evidence Act. Order 40 r. 38C, which allows an application to the Court to have a writ set aside or varied, recognises that the Court may and should in appropriate case, limit the scope and extent of the documents sought as previously: see also o. 40 r. 38D.”
This is not a situation similar to that in Collins where the expert report had already been disclosed, there being no dispute that it was within RSC o. 35 r. 5(2). The engineer's report in the present case is protected by legal professional privilege. Production of the rough notes at this point of time does not seem necessary or desirable when a number of considerations are taken into account.
Production may undermine the integrity of the privileged document. As Gaudron J points out at pp. 542-543 in Propend, legal professional privilege is recognised since Baker v Campbell in 1983 as not merely an ordinary rule of evidence but as a substantive legal principle and care needs to be taken in cutting across the purpose which the privilege serves.
Regard should also be had to the interests of the third party. There are issues of confidentiality and, in the present instance, the matter of the intellectual property in the notes which may be significant.
The interests of justice can be met by disclosure of the notes at a time when expert reports are exchanged prior to trial or when reliance is placed on the report at the trial itself. This is the situation referred to in Grosvenor Hill by Thomas J. He refers to a passage from the judgment of Scott J in W v Edgell (1990) 1 Ch 359, 396 which is in part as follows:
“...The expert cannot be barred when giving evidence of his opinion from referring to the facts on which the opinion is based, including, if it be the case, documents which, in the hands of solicitors, would be covered by legal professional privilege.”
Thomas J goes on to say, in respect of this passage:
“It is possible that such decisions may be explained on the basis that once the expert is called by the party who engaged him or her, privilege is waived both in respect of the opinion and in relation to documents upon which the opinion is based. However it is difficult to think that the position would be any different if the expert were called by the adverse party, so I do not think that the English decisions are properly explained away on that basis. There is simply no authority supporting the view that privilege extends generally to documents on which an opinion is based.”
Clearly then the expert's workings are not the subject of legal professional privilege. It is much more consistent though with the rationale of legal professional privilege - in the situation where the report itself is privileged - that examination of such supporting documents and the testing of the expert in cross-examination occur at the time when legal professional privilege has been waived. Production in response to a Writ of Third Party Discovery at an early stage has the disadvantages referred to above.
I would therefore refuse the production of the rough notes at this stage of proceedings despite the fact that they are not the subject of privilege.
As these were the only documents in issue, I find for the applicant and make orders as per paragraphs (a) and (b) of the Summons filed 8th October 1998.