Frasson v Frasson

Three procedural issues of some importance arose in this application: (1) whether unsigned draft witness statements referred to in a loss adjustor’s report, obtained in relation to the defence of a personal injuries claim, were disclosable; (2) whether diary notes of an interview between the respondent’s solicitor and witnesses as to their version of events were disclosable; and (3) whether the proceeding ought be transferred from the Supreme Court Central Region to the Supreme Court at Townsville.

Crow J

12 June 2020

The action was a personal injuries claim, the plaintiff tragically being assessed as suffering from a 91 per cent whole person impairment. [2].

Issue one – unsigned draft witness statements

The defendant obtained reports regarding the incident which gave rise to the personal injury claim. In part, the reports were derived from unsigned witness statements. Those unsigned witness statements, whilst being referred to within the report, were not attached to it. The plaintiff sought to have the unsigned witness statements disclosed pursuant to s 27 Personal Injuries Proceedings Act 2002. That section partially provides as follows:

“27  Duty of respondent to give documents and information to claimant

(1)  A respondent must give a claimant—

(a)  copies of the following in the respondent’s possession that are directly relevant to a matter in issue in the claim—

(i)  reports and other documentary material about the incident alleged to have given rise to the personal injury to which the claim relates;

(ii)  reports about the claimant’s medical condition or prospects of rehabilitation;

(iii)  reports about the claimant’s cognitive, functional or vocational capacity …”

Section 20(3) of the Act is also particularly relevant to the current matter. It provides:

“20  Respondent must attempt to resolve claim

…

(3)  An offer, or counter offer, of settlement must be accompanied by a copy of medical reports, assessments of cognitive, functional or vocational capacity and all other material, including documents relevant to assessing economic loss, in the offerer’s possession that may help the person to whom the offer is made make a proper assessment of the offer.” (emphasis added)

At the outset, his Honour observed that the reports were brought into existence at the behest of the insurer in order to comply with ss 20 and 27 of the Act. Neither the unsigned statements nor the reports were the subject of a valid claim for privilege. Furthermore, the notations at the foot of each of the cover pages of the both the reports, “STRICTLY CONFIDENTIAL AND PRIVILEGED FOR USE FOR THE SOLE PURPOSE OF ANTICIPATED LITIGATION”, did not have the effect of defining the purpose for which the reports were brought into existence: see James v WorkCover Queensland  [2001] 2 Qd R 626, 636–637. [25], [28].

Whilst importantly noting that in the present case the unsigned statements were not attached to the investigator’s report (cf James, 637), his Honour’s view was that the “best inference” was that the information contained in the unsigned statements, being of a similar nature to the information contained in the investigation report, are a part of the investigator’s report. [30]. To that end he clarified:

“The purpose of PIPA, as set out in s 4(2), is not assisted by an artificial distinction being drawn between the information contained in the investigation report and the information contained in a liability statement which forms the basis of the investigation report, regardless of whether or not the liability statement is attached to the report.” [31].

In the result, the Court concluded that the unsigned statements were not privileged and were required to be disclosed pursuant to ss 20(3) s 27(1)(a) of the Act. [34].

Issue two – file notes of interviews between respondent’s solicitor and witnesses

As to whether file notes of interviews between the respondent’s solicitor and witnesses as to their version of events were disclosable, his Honour noted that they had been made for the sole purpose of providing advice and to assist the solicitor with drafting an amended defence. [17]. Accordingly, they were plainly privileged, did not fall within the category of “investigator’s reports” pursuant to s 30(2) of the Act, and were not disclosable. [18].

Issue three – transfer of proceedings

The defendant sought to transfer the proceedings from the Supreme Court Central Region to the Supreme Court at Townsville pursuant to r 39 Uniform Civil Procedure Rules 1999. Relevantly, the cause of action arose in the Burdekin area of the Supreme Court Northern Region; the plaintiff and defendant resided close to Townsville; the solicitors for the plaintiff were based in Townsville whilst the solicitors for the defendant were based in Brisbane; counsel for both parties were based in Brisbane; and expert witnesses were from both Townsville and Brisbane.

It has long been accepted that plaintiffs have the right to elect their preferred place of trial: see Newman v Nilsen [2001] QCA 160. Previously under r 49, the court or a registrar had an unlimited discretion to transfer proceedings to another registry. Under the current r 39(2), only the court has the discretion to order proceedings be transferred, and only if it “is satisfied a proceeding can be more conveniently or fairly heard or dealt with at a place which the court is held other than the place at which the proceeding is pending”. The onus is on the applicant to positively persuade the court the proceeding can be more conveniently or fairly hear at another place. [43].

In the present case, the availability of trial dates heavily favoured the transfer of the proceeding to Townsville, and the reality was that overall convenience to the parties and witnesses also favoured a transfer. [50], [56]. With a view to having the matter dealt with as expeditiously as possible, and with the consent of the Northern Judge, his Honour ordered that the proceeding be transferred from the central region of the Supreme Court at Rockhampton to the regional registry of the northern region at Townsville. [56], [58].

A de Jersey