Parr v Bavarian Steakhouse Pty. Ltd.
[2000] QDC 224
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- Unreported Judgment
- Appeal Determined (QCA)
- Parr v Bavarian Steakhouse Pty. Ltd.[2000] QDC 224
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Parr v Bavarian Steakhouse Pty. Ltd.[2000] QDC 224
Parr v Bavarian Steakhouse Pty. Ltd.[2000] QDC 224
DISTRICT COURT OF QUEENSLAND
CITATION: | Parr v. Bavarian Steakhouse Pty. Ltd. [2000] QDC 224 |
PARTIES: | SOPHIE ADAM PARR BAVARIAN STEAKHOUSE PTY. LTD. |
FILE NO/S: | D1232 of 1998 |
DELIVERED ON: | 26 July 2000 |
DELIVERED AT: | Brisbane |
HEARING DATES: | 21 July 2000 |
JUDGE: | Skoien S.J.D.C. |
ORDER: | Plaintiff to disclose two statements by her relating to her injury. |
CATCHWORDS: | Effect of UCPR rules 547 and 548 on legal professional privilege |
COUNSEL: | Downes for applicant Treston for respondent |
SOLICITORS: | McCullough Robertson for applicant Carter Capner for respondent |
- [1]This is an application by the defendant for an order that it be provided with all documentation referred to in a report of Mr. A.F. Simons dated 30 December 1999. Mr. Simons is a psychologist who examined the plaintiff at the request of her solicitors. In particular, the applicant seeks the production of two documents which were supplied to Mr. Simons, a statement of the plaintiff and a questionnaire completed by her.
- [2]Rule 547 of the Uniform Civil Procedure Rules provides that the plaintiff must serve on the defendant a written statement of loss and damage within 28 days after the close of pleadings (here 28 days after 29 July 1998). The statement of loss and damage must, according to rule 547(3)(f), list the documents in the possession or under the control of the plaintiff about the plaintiff’s injury, loss (including economic loss) or treatment.
- [3]Rule 548(1)(e) provides that, without limiting rule 547(3)(f), a plaintiff’s statement of loss and damage must identify any other documents about the plaintiff’s claim for damages and rule 548(2) requires the provision of copies of those documents to the defendant. Rule 549(2) provides that, if there is a significant change in information given in the statement of loss and damage after it has been served and before a trial date is set, the plaintiff must serve on the defendant a supplement to the statement. In this case, the statement of loss and damage has been served but no trial date has been set.
- [4]The material establishes that the two documents referred to in paragraph [1] were sent to Mr. Simons before he saw the plaintiff. In an affidavit Mr. Simons swears that he relied on neither of them in reaching the opinion he expressed in his report. The defendant has requested production of the two documents but this has been refused on the grounds of privilege.
- [5]For the applicant, the primary submission of Miss Downes of counsel was that the matter falls squarely within the terms of rules 547(3)(f) and 548 and that the existence of the two documents having been revealed, the plaintiff must supply copies of them to the defendant (rule 548(2)).
- [6]The modern approach to personal injuries cases has seen considerable inroads into legal professional privilege. It is now, very substantially, a “cards on the table” situation, recognition being given to the fact that such an approach is likely to lead to realistic early offers of settlement being made. The former Order 39, rule 29C of the Rules of the Supreme Court and rule 149A of the District Court Rules officially recognised this approach, as does Chapter 14, Part 2 of the UCPR which contains rules 547 and 548. I note that Demack J. expressed himself in similar terms in Osborne v. Thomas Borthwick & Sons (Australia) Pty. Ltd. (1997) 2 Qd.R.180 at 181.
- [7]Chapter 14, Part 2 also contains rule 555 which is in these terms:-
“This part does not require a party to disclose the existence, or nature, of legal advice given to the party”
In my view, as Miss Downes submitted, that rule supports the proposition that the plaintiff’s statement and questionnaire should be disclosed and produced to the defendant. In settling the terms of rule 555 the mind of the drafter has been turned to the question of legal professional privilege and the drafter has made it patent that legal advice given to the plaintiff is protected. However it is of the greatest significance that the drafter, while attending to the question of legal professional privilege, and aware of the contents of rules 547 and 548, did not expressly preserve the privilege otherwise attaching to any statements of the plaintiffs which related to injury, loss or treatment.
- [8]Miss Treston of counsel, for the plaintiff, referred me to the unreported decision of the Court of Appeal in Collins v. Cockerill (1 May 1998), where Fitzgerald P. said:
“Legislation which would adversely affect legal professional privilege if given its literal effect is read down so as to avoid that result unless the language used clearly reveals an intention to do so. Obviously, a similar approach must be adopted to the construction of subordinate legislation.”
and McPherson J.A. referred to the following passage from Sorby v. The Commonwealth (1983) 152 CLR 281:-
“The principle is that a statute will not be construed to take away a common law right, including the privilege against self incrimination, unless a legislative intent to do so clearly emerges, whether by express words or necessary implication.”
and His Honour noted that such a principle applied equally to legal professional privilege.
- [9]The answer to Miss Treston’s submission is that, Chapter 14, Part 2 of UCPR reveals a clear intention, expressly in my view but at least by necessary implication, that documents of the type under review here lose their privilege. It should be noted that the District Court rule involved in Collins was simply the broad rule enabling the judge to “give such directions as the Court or Judge thinks proper.”
- [10]I was also referred to Interchange Corporation Limited v. Grosvenor Hill (Queensland) Pty. Ltd. (1999) 1 Qd.R.141. In my view it is of no assistance on this point. It did not concern a personal injuries action or rules of court of the type of rules 547, 548 and 555.
- [11]In the circumstances it is unnecessary to consider the general law relating to privilege and waiver of privilege.
- [12]In applying to this case what I take to be the intended effect of rules 547 and 548, I regard as irrelevant the sworn evidence of Mr. Simon that he did not rely on the two documents. That is irrelevant to the central point that each of the documents is a document of the type referred to in rule 547(3)(f), the provision of which to the defendant is required by rule 548(2).
- [13]In my judgment the two documents must be disclosed in a supplementary statement of loss and damage and copies of them provided to the defendant. Of course any part of those documents which do not relate to the plaintiff’s injury, loss or treatment, need not be disclosed or provided.