WorkCover Queensland v Jones[2009] QDC 274

[2009] QDC 274

DISTRICT COURT

CIVIL JURISDICTION

JUDGE RACKEMANN

No 1856 of 2009

BRISBANE

DATE 24/07/2009

JUDGMENT

HIS HONOUR:  The applicant seeks an order that the respondent give it a copy of a "relevant document" pursuant to section 279 of the Workers' Compensation and Rehabilitation Act 2003. The respondent resists that order on the basis of a claim of legal professional privilege.

Section 279 of the Act provides, in part, as follows:

It will be seen that, by reason of section 284(2)(d), relevant documents mentioned in section 279, other than correspondence between a party and the party's lawyer, must be disclosed even though they are otherwise protected by legal professional privilege.

It is common ground that the document in question is one to which legal professional privilege would ordinarily attach, but is also a "relevant document" mentioned in section 279, being a written statement made by the claimant about one or more of the things referred to in section 279(1)(a). The only issue or controversy between the parties is whether it is also "correspondence between a party and the party's lawyer", so as to fall within the limited exception to the duty to disclose relevant documents.

Counsel for the respondent relied upon dictionary definitions to submit that the document in question falls within the literal meaning of the expression "correspondence" and in particular, that it is a letter from the claimant to his solicitor.

The document was provided to the Court for the purposes of determining this issue. It does not, on its face, have the character of a letter or correspondence otherwise. It is headed, "Statement of Brett Shane Jones". The name of the matter follows and then a subheading, "Taken by Stephen Kelly on 15 August 2008". The affidavit of Mr Splatt establishes that, on the 15th of August, he directed Mr Stephen Kelly, an agent of his firm, to take a draft liability statement/instructions sheet from the respondent.

The document which is, I was informed, in a pro forma format contains a number of headings. There is a section for personal details and a section for details of the accident. The latter of those takes up the majority of the statement and there is then a heading for injuries suffered, but there is nothing, as is happens, under that heading in the document before the Court. The section on the details of the accident deal with matters of time, location, the circumstances leading up to the accident, what occurred and the like. It is signed on the bottom of each of the 4 pages which comprise the document.

In short, the document bears all the hallmarks of a statement made by the plaintiff, rather than a letter or a piece of correspondence.

It was submitted on behalf of the respondent, however, that it became a letter by reason of the means by which it came into the solicitor's hands; that is, the document which had been sent to the claimant in draft form was executed by him and then placed in an envelope and sent to the solicitor by post. It is not suggested that the statement was annexed to or formed part of a letter in the conventional sense. It was submitted that by reason of the adoption of that mode of delivery, the document had become a written document addressed from the client to his lawyer and sent through the post and so fell within the literal meaning of correspondence, and more particularly, a letter.

I would not, for my part, have thought that putting a statement in an envelope and posting it constituted a statement as a letter, as that term would ordinarily be understood. However, the question is whether it became "correspondence" within the meaning of that expression in and for the purposes of section 284(2)(d) of the Act.

I was informed by counsel that there is no authority on point. I was referred to the explanatory note for the relevant section, but that is of little assistance. It evinces an intention to overcome difficulties caused in 2 decisions, one of which is James v Workcover [2000] QCA 507. That case concerned argument about whether a statement attached to a report was disclosable as part of the report or not. The factual circumstances here are different. Further, to be a "relevant document" within section 279, a written statement by the claimant does not have to be annexed to or form part of any report. Counsel for the respondent did not submit to the contrary. I was also referred to some other decisions, but none provide an answer to the question before me.

Counsel for the applicant urged me to adopt a purposive approach to the interpretation of the expression in the context of the Act. Such an approach is, of course, consistent with section 14A of the Acts Interpretation Act.

The relevant provisions fall within part 5. The object of that part appears in section 273 as follows:

"The object of this part is to facilitate the just and expeditious resolution of the real issues in a claim for damages at a minimum of expense."

In furtherance of that object, the Act casts upon the parties a duty to co-operate. That co-operation extends to giving each other copies of relevant documents about the circumstances of the event resulting in the injury, as well as other things. The evident purpose of such a provision is to put each of the parties in a position of knowledge about those matters at an early stage, so as to further the object of just and expeditious resolution.

The Act goes so far, in the pursuit of that objective, as to require disclosure, even though documents would otherwise be protected by legal professional privilege. As counsel for the applicant pointed out, an overly liberal interpretation of the provision relating to correspondence in subsection 2(d) of section 284 would tend to undermine the object of the part and the purpose of the particular provisions otherwise.

It was submitted on behalf of the applicant that, in context, the reference to correspondence between a party and the party's lawyer should be read as a reference to correspondence of the kind usually seen between solicitor and client, examples of which he gave and which include the seeking and giving of advice on matters such as prospects and strategy, but ought not be interpreted so liberally as to convert an otherwise disclosable statement into a non-disclosable piece of correspondence, simply by reason of the means by which it was delivered.

On the respondent's approach the statement would be disclosable if it had been taken in front of the solicitor, signed by the client and left with the solicitor by the client. As counsel for the respondent also conceded, it would have been disclosable had it been signed by the client and then taken to the solicitor and handed to the solicitor.

It is difficult to see how it would advance the objects of this part to adopt an approach which resulted in the document being either disclosable or not depending only on its means of delivery. It is unlikely that that could have been the intention of parliament. When the provision is read in the context of the Act and its object, I am satisfied that it does not extend to a statement of the kind that is before the Court in this case. Accordingly, I will order disclosure of the statement.

...

HIS HONOUR:  The applicant seeks its costs of the proceedings. The costs power in relation to such applications however, is not at large. It is subject to the provisions of section 316, and in particular, section 316(4), which provides as follows:

"(4)An order about costs for an interlocutory application may be made only if the Court is satisfied that the application has been brought because of unreasonable delay by one of the parties."

The applicant contends that it has suffered delay in obtaining disclosure of the relevant statement. It points out that it has asserted its right to disclosure for some time and says that the circumstances fall within the circumstances described in the section.

It should be noted that the section is one which sets out the circumstances in which costs "may" be made. It does not say that an order for costs must be made in all cases which fall within the provision. There is, of course, a residual discretion, which should be exercised judicially.

However, in this case I am not satisfied that it even falls within the jurisdiction to order costs. The provision focuses upon whether the application has been brought "because of" unreasonable delay. In this case the application was brought not so much because of unreasonable delay, as because of a dispute between the parties as to whether the document was disclosable or not, a matter which I have determined, but which was arguable. In the circumstances I do not consider that I have jurisdiction to order costs. Even if I did, having regard to the nature of the matters and arguments before me, I would have declined to exercise my discretion in any event.

Accordingly, there be no order as to costs.