Williamson v ING Life Limited
[2006] QDC 352
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- Unreported Judgment
- Williamson v ING Life Limited[2006] QDC 352
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Williamson v ING Life Limited[2006] QDC 352
Williamson v ING Life Limited[2006] QDC 352
DISTRICT COURT OF QUEENSLAND
CITATION: | Williamson v ING Life Limited [2006] QDC 352 |
PARTIES: | MARK WILLIAMSON Applicant/Plaintiff v ING LIFE LIMITED Respondent/Defendant |
FILE NO/S: | BD4227 of 2004 |
DIVISION: | Civil |
PROCEEDING: | Application |
ORIGINATING COURT: | Brisbane |
DELIVERED ON: | 29 September 2006 |
DELIVERED AT: | Brisbane |
HEARING DATES: | 20 September 2006 |
JUDGE: | McLauchlan QC DCJ |
ORDER: | The Respondent is ordered to disclose the letter of instruction to the Applicant |
CATCHWORDS: | Legal professional privilege – partial waiver of privilege – substantial disclosure of significant parts – unfairness. |
COUNSEL: | Mr Harper for the Applicant/Plaintiff Mr Whiteford for the Respondent/Defendant |
SOLICITORS: | Maurice Blackburn Cashman for the Applicant/Plaintiff Bain Gasteen for the Respondent/Defendant |
- [1]This is an application that the defendant provide the plaintiff with a copy of the letter of instruction/referral to Dr John Tuffley. The letter referred to is a letter written by the defendant’s solicitors to Dr John Tuffley to provide a medical report on the plaintiff. The application is presumably made pursuant to r 223 UCPR.
- [2]The report followed a medical examination of the plaintiff pursuant to an order of 24 July 2006 of Judge Robin QC who ordered that the plaintiff’s action be stayed until he underwent the medical examination in question. The background to that order is that the plaintiff was injured in a motorcycle accident on 5 November 1999 and claimed against the defendant benefits under an income protection policy on the basis that his injuries rendered him totally and permanently disabled within the meaning of the policy.
- [3]Dr Tuffley examined the plaintiff on 27 July 2006 and provided a report which was forwarded to the plaintiff on 15 September 2006. For the purposes of the report the defendant’s solicitors provided various documents to Dr Tuffley which are listed on page 1 of his report. The defendant’s solicitor also provided to the plaintiff’s solicitor the document titled “Notes on Video Surveillance” which was among the documents forwarded to Dr Tuffley. All other documents provided to Dr Tuffley had previously been disclosed to the plaintiff. The defendant’s solicitors refused to disclose the letter of instruction to Dr Tuffley on the basis that it is the subject of legal professional privilege.
- [4]It is not in dispute that a letter of instruction from a party’s solicitor to an expert witness for a report to be used in the proceedings is ordinarily the subject of legal professional privilege, and need not be disclosed unless the privilege is waived. The application in the present case depends upon the assertions that the communication between the defendant’s solicitor and the doctor comprised not only the letter itself but attachments with it, and that disclosure of these attachments represents a partial waiver of the privilege; and secondly that some of the contents of the letter itself have been disclosed in an affidavit sworn by the defendant’s solicitor, with a similar result. Consequently it is said that there has been significant disclosure of parts of the privileged communication, such that it would be unfair and potentially misleading to refuse to disclose the balance of the communication contained in the letter in question.
- [5]In Henderson v Low and Others (2000) QSC 417 reference is made to a number of authorities to the effect that partial waiver of a document or communication may require disclosure of the whole communication to avoid unfairness to the opposite party. Particular reference is made to Attorney General for the Northern Territory v Maurice (1986) 161 CLR 475, in which Gibbs C J said (481-482):
“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. So it has been held that where cross-examining counsel asked a witness whether he had said certain things in a written statement, examining counsel was entitled to require the whole statement to be put into evidence… similarly, where a party disclosed a document which contained part only of a memorandum which dealt with a single subject matter, and then read the document to the judge in the course of opening the case, it was held that privilege was waived as to the whole memorandum.”
- [6]Mason and Brennan JJ in their joint judgment (487-488) said:
“In order to ensure that the opposing litigant is not misled by an inaccurate perception of the disclosed communication, fairness will usually require that waiver as to one part of a protected communication should result in waiver as to the rest of the communication on that subject matter.”
- [7]A copy of the letter itself was provided for my inspection as is provided for in r 223(5). It is certainly the case that Mr Batch in his affidavit sworn 19 September 2006 sets out accurately the specific questions which he asked the doctor to provide a report about. As Mr Batch says, he prepared and sent a letter to Dr Tuffley seeking his report, solely for the purpose of using the report to defend the proceedings. On behalf of the defendant he accordingly claims legal professional privilege in relation to the letter.
- [8]Tirango Nominees Pty Ltd v Dairy Vale Foods Ltd 156 ALR 364, is an example of a case where a claim for legal professional privilege was upheld in relation to a letter of instruction, in response to which an expert accountant had produced a report which became an exhibit in the proceedings. In the course of his decision Mansfield J referred to the reasons of Foster J in Dingwall v Commonwealth (1992) 39 FCR 521. He stated:
“In that case, a proposed medical witness was subpoenaed to produce all letters of instruction and like documents provided to him upon which his detailed medical report had been prepared. Although the issue arose pre-trial, Foster J considered the issue as if the medical report had in fact been received in evidence. At the time of His Honour’s consideration of the question, he accepted the doctor’s explicit statement in response to the question asked of him that the opinions expressed in his report had not been founded upon any information conveyed by the instructions or in any of the other subpoenaed documents. That being so, His Honour concluded that the privilege in the letter of instructions and other subpoenaed documents had not been waived by the (assumed) presentation of the expert medical opinion into evidence. There was no indication that those documents were used in the preparation of the medical report in a way that could be said to have influenced the content of the medical report. His Honour recognised that the issue might be raised again during the course of the doctor’s evidence.”
- [9]A somewhat different, but not necessarily inconsistent view was expressed by Lindgren J in Australian Securities and Investments Commission v South Corp Ltd (2003) FCA 804. At paragraph 21 of the judgment His Honour expressed the principles which he intended to follow and which included the following:
“Ordinarily disclosure of the expert’s report for the purpose of reliance on it in the litigation will result in an implied waiver of the privilege in respect of the brief or instructions or documents (to the expert), at least if the appropriate inference to be drawn is that they were used in a way that could be said to influence the content of the report, because, in these circumstances it would be unfair for the client to rely on the report without disclosure of the brief, instructions or documents;” (my parentheses)
- [10]I take the view that my inspection of the letter of instruction is to enable me to form a view whether and to what extent there has been partial disclosure of the contents of the letter, such that fairness requires the remainder of the letter to be disclosed. In the circumstances I consider that there has been substantial disclosure of significant parts of the communication between the defendant’s solicitor and Dr Tuffley, and that fairness requires that privilege should be treated as waived with respect to the whole of the communication. The defendant is therefore ordered to provide the plaintiff with a copy of the letter of instruction from the defendant’s solicitors to Dr John Tuffley, as sought in the application.