Abreu v Thomas Peacock and Sons Pty Ltd - [2012] WADC 5

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL

LOCATION: PERTH

CITATION: ABREU -v- THOMAS PEACOCK & SONS PTY LTD [2012] WADC 5

CORAM: REGISTRAR KINGSLEY

HEARD: 1 DECEMBER 2011

DELIVERED : 12 JANUARY 2012

FILE NO/S: CIV 2455 of 2009

BETWEEN: OSWALD BRUCE ABREU
Plaintiff
AND
THOMAS PEACOCK & SONS PTY LTD
Defendant

Catchwords:

Practice - Further discovery of solicitor's notes - Turns on own facts

Legislation:

Nil

Result:

Application allowed

Representation:

Counsel:

Plaintiff: Mr T Lampropoulos SC
Defendant: Mr G Hancy

Solicitors:

Plaintiff: S C Nigam & Co
Defendant: WHL Legal Pty Ltd

Case(s) referred to in judgment(s):

Ampolex v Perpetual Trustees Co (1995) 37 NSWLR 405
Attorney General for the Northern Territory v Maurice (1986) 161 CLR 475
Thomason v Campbell Town v Municipal Counsel (1939) 39 SR (NSW) 347

REGISTRAR KINGSLEY: By an endorsed writ filed 19 August 2009 the plaintiff claimed damages for personal injury sustained by him on 29 May 2006 in the course of his employment. By an amended endorsed writ filed 3 December 2009 the plaintiff's claim for damages included the statement that the injury was first diagnosed by his general practitioner on 23 August 2007 as having being caused by the accident. By a statement of claim dated 6 April 2010 the plaintiff pleads out his claim for damages arising from the negligence of the defendant.
In its defence dated 22 April 2010 the defendant pleads that the writ in this action was issued more than three years after the occurrence of the matters giving rise to the injury and by virtue of s 14(1) Limitation Act 2005 the plaintiff was not and is not entitled to commence or maintain this action.
By an order made 2 November 2010 the matters identified in par 3 of the plaintiff's outline of submissions dated 27 October 2010 be tried as a preliminary issue. Paragraph 3(e) provides:
(i) Is the reference in s 39 of the Limitation Act to becoming aware of an injury attributable to the conduct of a person, a reference to becoming aware of an injury in respect of which damages are then claimable/recoverable in accordance with s 93K(4) of the Compensation Act?
(ii) If so, and the limitation period had expired when the writ was issued, should the court now extend the time under s 39(3) on the basis that the plaintiff was then not aware that his injury 'was attributable' to the negligence of the defendant, and can and should that extension be backdated: Re Monger; Ex parte Cross (2004) WASCA 176 at [165] (so as to ameliorate the harsh and unforeseen effects of the s 93K(4) of the Workers' Compensation and Injury Management Act 1981 in the circumstances of this case)?
By a chambers summons filed 19 August 2011 the defendant seeks orders that the plaintiff give further discovery and provide the defendant with copies of all documents that record or evidence the advice given to the plaintiff by his solicitor concerning the association between the plaintiff's alleged injury sustained on 29 May 2006 and the conduct of the defendant including any solicitors notes of advice. The defendant's application is supported by the affidavit of Callum Stephen Fraser sworn 18 August 2011. The plaintiff opposes the application and has filed the affidavit of Maureen Bijou O'Connell sworn 9 September 2011.
In his affidavit Fraser concludes that the plaintiff's solicitor must have given the plaintiff advice that his injury was attributable to the defendant. Fraser then goes onto outline, by way of the plaintiff's statement of evidence dated 5 August 2011, and by way of correspondence, why he came to his conclusion. In May 2011 the defendant's solicitors requested of the plaintiff discovery of all communications between the plaintiff and his solicitors prior to 30 May 2009, concerning the association between the plaintiff's alleged injury and the defendant. In response to the defendant's request the plaintiff's solicitor disclosed a copy of a letter written by the plaintiff's solicitors to the plaintiff and dated 28 July 2008 where:
We confirm our previous advice that in order to enable you to have access to common law it is necessary for your impairment rating to be assessed as not less than 15 per cent. This will ensure that you have access to damages at common law and limited by a cap of $353,850.00.
By letter dated 15 June 2011 the defendant's solicitors sought a copy of the previous advice referred to in the plaintiff's solicitor's letter of 28 July 2008 (if that previous advice was in written form). The plaintiff's solicitors responded by letter dated 22 June 2011 stating that 'no document on our file exists containing that advice and that the "previous advice" was verbal'. The solicitors go on to say that if any notes of the meeting between the plaintiff's solicitor and the plaintiff were made then they claim legal professional privilege.
The defendant's counsel submits that by the plaintiff putting his state of knowledge in issue in the action, the plaintiff has waived his right to maintain privilege over the advice he is given about the nature and elements of a common law action.
Plaintiff's counsel submits that all documents within the relevant description had been given. That is the file notes, to the extent that they are relevant, has been discovered. As defendant's counsel submits, the plaintiff's solicitor being the competent solicitor that he is, it is unlikely no notes of the advice would have been made and kept and, accordingly, those notes are to be discoverable. The defendant's counsel submits that the plaintiff's solicitors were arranging medical reviews for common law impairment assessment and were seeking extensions of time to allow the plaintiff to make an election. As defendant's counsel submits in those circumstances it is highly unlikely that no notes would have been made.
The defendant's counsel relies on Ampolex v Perpetual Trustees Co (1995) 37 NSWLR 405 which in turn referred to Thomason v Campbell Town v Municipal Counsel (1939) 39 SR (NSW) 347. Giles CJ in Ampolex cited the following passage by Jordan CJ from Thomason:
Hence in effect one of the issues in the case was what advice if any the plaintiff had received from her legal advisors as to her alternative legal rights. In these circumstance, since the fact and the nature of the advice is an issue in the case, I am of the opinion that privilege cannot be raised to prevent the proof of the advice.
The preliminary issue puts in issue the awareness of the plaintiff. Preliminary issue 3(e)(ii) enquires whether the court should now extend the time under s 39(3) Limitation Act on the basis that the plaintiff was not aware that his injury was attributable to the negligence of the defendant.
In this matter the plaintiff has opened up his state of awareness in relation to the question of the limitation period. The advice given by the plaintiff's solicitor goes directly to the question of the plaintiff's awareness.
In essence the issue one of fairness. The plaintiff having put into issue the state of his awareness that his injury 'was attributable' to the negligence of the defendant, fairness requires that his privilege should cease whether he intended that result or not (Attorney General for the Northern Territory v Maurice (1986) 161 CLR 475).
Applying Thomason and Ampolex I am of the opinion that the defendant's application filed 19 August 2011 should succeed. The defendant having succeeded on that application the costs should follow the event that is the plaintiff pay the defendant costs on the application including any reserved costs.