Dzaferovic v Collins
[2001] QDC 94
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- Dzaferovic v Collins[2001] QDC 94
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Dzaferovic v Collins[2001] QDC 94
Dzaferovic v Collins[2001] QDC 94
DISTRICT COURT | No 4720 of 1999 |
CIVIL JURISDICTION
JUDGE BOYCE QC
NEDZAD DZAFEROVIC | Plaintiff |
and
MARNI COLLINS | Defendant |
and
SUNCORP METWAY INSURANCE LIMITED ACN 075 695 966 | Third Party |
BRISBANE
DATE 19/02/2001
ORDER
HIS HONOUR: This is an application by the defendants in a personal injury matter to compel further and better discovery from the plaintiff. I propose to give reasons for judgment in this matter extempore I reserve the right to revise these reasons for judgment in due course.
The plaintiff is claiming damages for injury sustained as a result of a motor vehicle accident occurring on 12 October 1998. The application is really in a very narrow compass. Whilst the application seeks discovery of statements of proofs of evidence of the plaintiff containing information about the quantum of the claim, and statements or proofs of evidence of persons other than the plaintiff containing information about the quantum of the claim, the true scope of the application is somewhat different.
It has been raised between the solicitors that the solicitor for the plaintiff has made diary notes regarding conversations with the plaintiff. The defendants submit that the defendants are entitled to discovery of the diary notes of the solicitor for the plaintiff regarding conversations with the plaintiff.
The defendants rely upon the recent Court of Appeal decision in Parr v. Bavarian Steakhouse (unreported decision, 2000 QCA 429, judgment delivered on 24 October 2000.) The Court of Appeal there had to consider the scope of the Uniform Civil Procedures Rules requiring discovery of documents in proceedings for damages for personal injury or death. The relevant rules the Court considered were rules 545, 547, 548 and 555. It is not necessary to set these rules out in detail. It is sufficient, for instance I think, to note that rule 547(3)(f) requires discovery of “the documents in the possession or under the control of the plaintiff about the plaintiff's injury, loss (including economic loss) or treatment”.
The submission for the defendants is that the diary notes of the solicitor for the plaintiff regarding conversations with the plaintiff are documents in the possession or under the control of the plaintiff about the plaintiff's injury, loss or treatment.
In Parr v. Bavarian Steakhouse, Pincus JA observed in paragraph 13 and 14:
“If one looks at the matter more broadly the spirit of these rules about loss and damage in personal injury cases is that as the primary Judge put it, cards must be on the table and I add they must be face up. Counsel for the appellant argued that unfortunate consequences would ensue if the rules in question were given the wide effect their terms read literally require. If that proves to be so, one would expect them to be altered eventually; in saying that I do not attempt to predict whether or not the result of application of the relevant rules will be beneficial. In my opinion they must be given their ordinary construction and they cannot sensibly read down in such a way as to exclude from their ambit the two documents presently in issue.”
He then observed in paragraph 14:
“Uniform Civil Procedure rule 547(3)(f) and rule 548(1)(e) are not to be read as excepting documents which would in the absence of these rules be protected by legal professional privilege. Nor is the obligation created by rule 548(2)(a) subject to such an exception.”
McPherson JA observed:
“I agree with the reasons of Pincus Justice of Appeal for dismissing this appeal with costs including the costs of the application for leave. The provisions of Uniform Civil Procedure Rule 547(3)(f) are so specific as to leave no room for qualification by reference to the common law presumption, despite its strength of privilege for communications passing from client to solicitor or for the purpose of litigation.
That is especially so having regard to the specific but limited operation allowed to such privilege by rule 555. Whether the result will conduce to greater candour in the conduct of personal injury actions may be doubted but that, I agree, is a matter for the Rules Committee.”
Thomas JA observed:
“It is unsurprising that, in relation to personal injury and fatal accident claims, a more specific and far-reaching system has been devised, requiring early exposure of the claimant's case than in other cases. It is difficult to see why the disclosure obligations stop at medical reports and statements and reports of persons other than the plaintiff.
Rules 547(3)(f) and 548(1)(e) are extremely wide. It seems to me that rule 555 marks out the point at which legal professional privilege is recognised as subsisting in relation to documents of the type described in rules 547 and 548. It provides:
‘This part does not require a party to disclose the existence or nature of legal advice given to the party.’
The rules in part 2 of chapter 14 of the Uniform Civil Procedure Rules, that is, rules 544-558, operate in tandem with the disclosure rules in chapter 7 and impose somewhat more rigorous requirements upon claimants in the stated area of personal injury and fatal accident claims.
They apply to documents relating to the issue of damages not liability. The rules in question derive from previous Rules of the Supreme Court order 39, rules 29A to 29I which, with only a few amendments have been in force since 1988.
Until this case, however, it has not been suggested that relevant statements of plaintiffs themselves might be covered. On examination of the rule, I think they are.”
The difficulty with the application of the defendants is that the documents sought do not, in my opinion, come within any of the documents that are dealt with in rules 547 and 548. The documents are not, in my opinion, documents that are in the possession or under the control of the plaintiff about the plaintiff's injury loss or treatment.
In Breen v. Williams (1996) 186 CLR 71, the High Court had to consider the right of a patient to access to records kept by a medical practitioner with respect to the patient and a right to inspect and/or copy those records.
The High Court ruled that the patient was not entitled to access to the doctor's records. Brennan CJ observed at page 80:
“The appellant concedes that the property in the records as chattels is in the respondent. The concession is rightly made. Documents prepared by a professional person to assist the professional to perform his or her professional duties are not the property of the lay client; they remain the property of the professional.
In the light of that principle, it is not easy to see what relevance the law of property has to the supposed right of the appellant to access to the respondent's records. If (as it was put during argument) the respondent is said to have no proprietary right that would entitle him to refuse access, the question whether the appellant has a right to be given access still remains. On that approach, the supposed right (if any) must find some basis other than property. But even on that approach, the argument is flawed. Absent some right to require or the exercise of some power to compel, production of a document for inspection, its owner is entitled, by virtue of the rights of ownership, to refuse to produce it.
As for copying, where the professional person is the owner of the copyright, he or she has the sole right to copy or to permit the copying of the document.”
In the reasons for judgment of Gummow J, his Honour observed at page 127:
“Secondly, the appellant's submissions gave insufficient allowance to the operation in this field, of copyright law, a matter of Federal statute. The composition by the medical practitioner of the material shown on the records may have involved the authorship by him of what, whilst not of literary quality, were nevertheless literary works for the purposes of copyright law.
This would vest in him various exclusive proprietary rights, including that to reproduce the work in a material form.”
In the Solicitor's Handbook, published by the Queensland Law Society, there is an observation that recognises the long-held view amongst solicitors. In item 6.00(2), it is said:
“Documents prepared by the practitioner for the practitioner's benefit and for which no charge is made belong to the practitioner.”
The rule is dealing with documents that must be handed over by a solicitor upon determination of the retainer of the solicitor and payment of the practitioner's fees.
In the circumstances, I conclude that the diary notes made by the solicitor for the plaintiff of conversations with the plaintiff are documents prepared by the solicitor to assist the solicitor to perform his professional duties. They are not the property of the plaintiff. They remain the property of the solicitor.
The notes are not available to the client. Should the client determine the retainer of the solicitor and pay the solicitor's fees, the documents would still remain the property of the solicitor and the client would not be entitled to access to those documents.
In my opinion, the documents are not covered by rules 547 and 548 of the Uniform Civil Procedure Rules. In particular, I hold that the documents are not documents in the possession or under the control of the plaintiff about the plaintiff's injury, loss (including economic loss) or treatment.
Accordingly, I refuse the application.
...
HIS HONOUR: I will made an order as per draft and I have amended the draft to read as follows:
- Application dismissed.
And item 2 I have amended to read as follows:
- Order second-named defendant to pay the plaintiff's costs of and incidental to this application to be assessed.