Al-Shennag v Statewide Roads Pty Limited
[2010] NSWSC 366
•3 MAY 2010
CITATION: Al-Shennag v Statewide Roads Pty Limited & Anor [2010] NSWSC 366
This decision has been amended. Please see the end of the judgment for a list of the amendments.HEARING DATE(S): 18/11/2009; 10/12/2009
JUDGMENT DATE :
3 May 2010JURISDICTION: Common Law JUDGMENT OF: McCallum J DECISION: (1) I grant leave to the second defendant, Mr Woodcock, to inspect the documents in MFI 3 except for the documents contained in envelope 10. CATCHWORDS: PRACTICE & PROCEDURE - Application for leave to inspect documents produced on subpoena LEGISLATION CITED: Defamation Act 1974
Evidence Act 1995
Protected Disclosures Act 1994CATEGORY: Procedural and other rulings CASES CITED: Akins v Abigroup Ltd (1998) 86 FCR 215
Al-Shennag v Bankstown City Council Civic Services Group [2002] NSWIRComm 150
AS v Statewide Roads Ltd [2007] NSWSC 1472
Al-Shennag v Statewide Roads Ltd [2008] NSWCA 300
Al-Shennag v Statewide Roads Pty Ltd & Anor [2009] NSWSC 210
Al-Shennag v Statewide Roads Pty Ltd & Anor (unreported, 19 May 2009)
Liberty Funding Pty Ltd v Phoenix Capital Ltd (2005) 218 ALR 283PARTIES: Abdullah Al-Shennag (Plaintiff)
Statewide Roads Pty Limited (First Defendant)
Bill Woodcock (Second Defendant)FILE NUMBER(S): SC 05/269387 COUNSEL: In person (Plaintiff)
M. S. White / R. Gration (Second Defendant)SOLICITORS: Deacons (Second Defendant)
IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION
McCALLUM J
3 MAY 2010
JUDGMENT05/269387 ABDULLAH AL-SHENNAG v STATEWIDE ROADS LIMITED & ANOR
1 HER HONOUR: These are proceedings for defamation brought by Mr Abdullah Al-Shennag, an engineer formerly employed by Bankstown City Council, arising out of a report commissioned by the Council to assess the appropriateness of conditions imposed by Mr Al-Shennag on development consents relating to three properties. The only remaining defendant to the proceedings is Mr Bill Woodcock, the author of the report.
2 The application presently before the Court is an application by Mr Woodcock for leave to inspect documents produced to the Court by the Industrial Relations Commission and by Bankstown City Council. Mr Al-Shennag opposes Mr Woodcock’s being granted access to some of those documents. Before determining the many issues raised by Mr Al-Shennag’s objections, it is necessary to explain some of the history of the proceedings.
3 The Council engaged Mr Woodcock to prepare the report in June 1999. Mr Woodcock was then a senior consultant engineer employed by Statewide Roads Technical Management Ltd. His report was forwarded to senior officers of the Council in July 1999. It was highly critical of Mr Al-Shennag’s performance as an engineer.
4 On 12 May 2000, Mr Al-Shennag’s employment by the Council was terminated. Mr Al-Shennag subsequently instituted proceedings in the Industrial Relations Commission claiming that he had been unfairly dismissed. That claim was unsuccessful. Mr Al-Shennag appealed against the decision of the Commissioner to the Full Bench of the Industrial Relations Commission and that appeal was also unsuccessful.
5 The present proceedings were commenced on 28 June 2005. It appears that, by that time, Statewide Roads Technical Management Ltd (Mr Woodcock’s employer at the time he wrote the report) had become deregistered. In those circumstances, Mr Al-Shennag sought to maintain a claim against its parent company, Statewide Roads Ltd, alleging that it was liable as a publisher of the report. Mr Al-Shennag also sued Mr Woodcock as the second defendant to the proceedings.
6 The proceedings are governed by the Defamation Act 1974 (since repealed). Pursuant to s 7A of that Act, the functions of judge and jury were divided so as to require the jury to determine whether the matter complained of carried any imputation pleaded by the plaintiff and, if so, whether the imputation was defamatory: s 7A(3). The jury also determined any issue as to publication. In respect of any imputation as to which those issues were determined in favour of the plaintiff, the Court and not the jury was then to determine whether any defences had been established and the amount of any damages that should be awarded: s 7A(4).
7 In the present case, a trial to determine the issues reserved for the jury under s 7A(3) was held over four days in December 2007. Curiously, however, the trial was not in fact heard by a jury but by judge alone, apparently by consent.
8 On 12 December 2007, Walmsley AJ found in favour of the company, Statewide Roads Ltd, on the basis that it was not a publisher of the report. In the claim against Mr Woodcock, however, there was no real contest as to that issue. His Honour was satisfied that Mr Woodcock published the report and, further, that five of the imputations pleaded by Mr Al-Shennag were carried by the report and were defamatory of him: AS v Statewide Roads Ltd [2007] NSWSC 1472. That decision was upheld on appeal: Al-Shennag v Statewide Roads Ltd [2008] NSWCA 300.
9 The imputations found by Walmsley AJ are:
(a) that the plaintiff is an incompetent engineer;
(b) that the plaintiff by reason of his lack of knowledge and ability as an engineer does not deserve to remain as an employee of the Council;
(c) that the plaintiff is a silly engineer;
(e) that the plaintiff is useless for any employment as an engineer.(d) that the plaintiff’s work and actions as an engineer tend to bring a bad name to all professional engineers;
10 It remains for the Court to determine the defences raised by Mr Woodcock to those imputations and the amount of damages (if any) that should be awarded to Mr Al-Shennag. One of the issues for that hearing is whether the defamation caused Mr Al-Shennag’s dismissal from his employment with the Council. Mr Al-Shennag contends that it did. He also claims that he has been unable to obtain employment since that time due to his medical condition, which he attributes to the publication of the report. Mr Al-Shennag claims over $6 million from Mr Woodcock by way of special damages on that basis.
11 In that context, for the purpose of preparing for the further hearing of Mr Al-Shennag’s claim, Mr Woodcock issued a letter of request to the Industrial Relations Commission to obtain access to its files relating to Mr Al-Shennag’s unfair dismissal claim. In response to that request, the Commission’s files were produced to the Registry of this Court.
12 On 17 December 2008, Registrar Bradford made directions granting Mr Al-Shennag first access to those documents. Without availing himself of that entitlement, Mr Al-Shennag filed a notice of motion seeking review of the Registrar’s orders. That application was dismissed by Hall J: Al-Shennag v Statewide Roads Pty Ltd& Anor [2009] NSWSC 210.
13 On 15 April 2009, Mr Woodcock issued a subpoena to the Council for production of its documents relating to the unfair dismissal claim. An application by Mr Al-Shennag to have that subpoena set aside was dismissed by Adams J: Al-Shennag v Statewide Roads Pty Ltd& Anor (unreported, 19 May 2009). Mr Al-Shennag was then granted first access to both sets of documents (those produced by the Industrial Relations Commission and those produced by the Council) and required to provide a list of his objections to access to Mr Woodcock.
14 On 16 September 2009, Mr Al-Shennag served two schedules identifying his objections to access to the two sets of documents. The application presently before the Court is Mr Woodcock’s application (by notice of motion filed 2 October 2009) for leave to inspect the documents identified in those schedules. I was informed at the hearing of the motion that there is complete overlap between the two sets of objections and that it would be sufficient to confine my attention to the objections set out in the final version of the schedule relating to the documents produced on subpoena by the Council (MFI 1; and see MFI 2 which is the same document with a column of legal references added by Mr Al-Shennag).
15 During the initial hearing of Mr Woodcock’s application, it became apparent that it would be necessary for me to inspect at least some of the documents objected to in order to determine the application. Accordingly, I directed Mr Al-Shennag to isolate, from among the documents produced, one copy of every document the subject of an objection in his two schedules. Mr Al-Shennag placed the documents identified by him in twelve envelopes marked by reference to his twelve categories of objection (the twelve envelopes, collectively, are MFI 3).
Category 1 – statement prepared by Mr Al-Shennag
16 The only document in category 1 is a statement prepared by Mr Al-Shennag. Mr Al-Shennag claims privilege in respect of that document under s 120 of the Evidence Act 1995, which confers a privilege similar to client legal privilege upon unrepresented litigants. It appears to have been accepted by Mr Woodcock that the privilege conferred by that section may extend derivatively to the inspection of documents produced to the Court by a third party, presumably by a combination of s 131A of the Evidence Act and rule 33.9 of the Uniform Civil Procedure Rules 2005.
17 I have examined the copy of the statement provided by Mr Al-Shennag in the envelope for category 1. It may readily be accepted, as contended by Mr Al-Shennag, that the statement was prepared by him for the dominant purpose of the proceedings in the Industrial Relations Commission. I accept, further, that the statement may be taken to be a confidential document within the meaning of s 117 of the Evidence Act, notwithstanding the conceptual difficulty (ignored in s 120) in recognising that a person may owe an obligation of confidentiality to himself. On those premises, unless the privilege has been lost, the statement is a “privileged document” as that term is defined in the Dictionary to the Uniform Civil Procedure Rules 2005. That would afford a proper basis for refusing leave under rule 33.9 of the UCPR to inspect it.
18 The question is whether the privilege has been lost as a result of Mr Al-Shennag’s having voluntarily disclosed the privileged information contained in the document, or otherwise acted in a way that is inconsistent with the present objection.
19 The contents of the statement were evidently disclosed when Mr Al-Shennag served it on Bankstown City Council in advance of the hearing in the Industrial Relations Commission. As acknowledged on behalf of Mr Woodcock, however, that is likely to have been in response to a direction of the Commission and arguably did not result in loss of the privilege: see s 122(5)(a)(iii); Akins v Abigroup Ltd (1998) 43 NSWLR 539 at 551B; but see Liberty Funding Pty Ltd v Phoenix Capital Ltd [2005] FCAFC 3; 218 ALR 283 at [24] to [27].
20 When the proceedings were heard at first instance in the Industrial Relations Commission before Commissioner Tabbaa, the parties agreed that parts only of the statements that had been served would be read into evidence (see transcript dated 16 October 2000 at pages 11 to 12, reproduced in Exhibit A at pages 67 to 68). On that basis, Mr Al-Shennag contends that the balance of his statement continues to be immune from disclosure. However, Mr Al-Shennag subsequently relied on the entire statement in support of his application for leave to appeal against the decision of Commissioner Tabbaa. Indeed, he specifically submitted that he had been denied procedural fairness by reason of the exclusion of that material at first instance. On that basis it was submitted on behalf of Mr Woodcock, correctly in my view, that Mr Al-Shennag has knowingly and voluntarily disclosed the substance of the evidence, or otherwise acted in a way that is inconsistent with the present objection, and has accordingly lost any privilege: ss 122(2) and 122(3)(a) of the Evidence Act; and see Akins at 551D.
21 Mr Al-Shennag maintained that the statement was tendered in the Industrial Relations Commission only on the voir dire and that it did not go into evidence. He submitted, on that basis, that the privilege is not lost. In support of that submission, Mr Al-Shennag relied on extracts of a report dated June 2008 by the Attorney-General’s Department on “Access to Court Information” which included a recommendation that statements and evidence on a voir dire should be the subject of “restricted access” rather than “open access”.
22 It appears to be correct that the further material sought to be relied upon by Mr Al-Shennag on his application for leave to appeal to the Full Bench of the Industrial Relations Commission was initially treated by the Commission as being tendered only on the voir dire (see transcript of hearing 21 February 2002 at page 4, reproduced in Exhibit 1 at page 218). However, it is clear from the judgment of the Full Bench that the material tendered on the voir dire was ultimately admitted into evidence on the question of leave to appeal (which was refused): Al-Shennag v Bankstown City Council Civic Services Group [2002] NSWIRComm 150 at [12], reproduced in Exhibit A at page 94.
23 In any event, I am of the view that, by deploying the statement in support of his application for leave to appeal, Mr Al-Shennag voluntarily disclosed its contents in a way that is inconsistent with maintenance of the privilege. For all of those reasons, I am satisfied that any privilege under s 120 of the Evidence Act has been lost.
24 The second basis on which Mr Al-Shennag opposes access to his statement is his contention that it contains protected disclosures within the meaning of the Protected Disclosures Act 1994. It is apparent from an inspection of the statement in envelope 1 that the “disclosures” referred to are complaints made by Mr Al-Shennag to the Independent Commission Against Corruption. In my view, Mr Al-Shennag’s reliance on the Protected Disclosures Act as a source of privilege attaching to those communications is misconceived. The protections identified in Part 3 of the Act do not extend to creating any discrete immunity against disclosure of material that is otherwise liable to be disclosed in any legal proceeding.
25 Separately, Mr Al-Shennag relies on the provisions of s 126B of the Evidence Act relating to protected confidences. I have considered the contents of Mr Al-Shennag’s statement against the definition of a protected confidence in s 126A of the Act. I am not satisfied, on the strength of the material before me, that any part of the statement discloses or records a protected confidence within the meaning of that section.
26 The next ground of objection is that the statement relates to matters of State and is accordingly protected by s 130 of the Evidence Act. Mr Al-Shennag explained the basis for that contention in the following exchange:
- HER HONOUR: Are you saying that these items are protected by public interest immunity because the conduct of the business of council is a matter of state, is that right?
- PLAINTIFF: Exactly, your Honour. And also it is, it might cause harm for the business of the council, the relationship between the council and the state government, and I will show the local government section act which related to the, you know, the responsibility or the responsibility of the commission, the grant commission which take funds from the Commonwealth government to give this money to the councils. This money is allocated based on trust, how the council running the business and other things and it might be if disclosed will affect, you know, the relationship of the council with the state, with the Minister of the local government, with the Minister because the source of money from the Commonwealth, the granting funds - I will refer you to some section of Local Government Act.
27 In my view, that submission is misconceived. Matters concerning the conduct of the business of Local Councils are not, of themselves, matters of State such as to warrant public interest immunity. I see nothing in the contents of the statement of the kind that would attract the protection of s 130.
28 The next ground of objection is stated in the following terms: “The statement has sensitive and personal information including in respect of self-incrimination information in respect to my own life at some stage”. Mr Al-Shennag’s schedule of objections specifically refers, in that context, to s 128A of the Evidence Act, which prescribes the manner in which the Court must determine whether or not there are reasonable grounds for an objection that invokes the privilege against self-incrimination.
29 Nothing in the statement in envelope 1 contains anything of the kind that would attract the privilege against self-incrimination in the sense in which that expression is understood in relation to s 128A. I have concluded that Mr Al-Shennag has used the term “self-incrimination” to describe information of a sensitive or personal nature which he would rather keep confidential. Regrettably for Mr Al-Shennag, that is not a sufficient warrant for depriving Mr Woodcock of access to such information to the extent that it is relevant to the issues raised in the proceedings Mr Al-Shennag has chosen to bring.
30 Separately, Mr Al-Shennag relied on ss 17K and 17QA of the Defamation Act 1974. Section 17K provided a defence of absolute privilege for a publication to or by the Independent Commission Against Corruption. Section 17QA provided a defence of absolute privilege for a publication to or by a public official or public authority referred to in s 8 of the Protected Disclosures Act.
31 Mr Al-Shennag’s reliance on those provisions is misconceived. Mr Al-Shennag appears to have been labouring under the misapprehension that the immunity comprehended in the term “absolute privilege” in those provisions is the same as the immunity comprehended in the term “privilege” as it is understood in the context of Part 3.10 of the Evidence Act. That is not the case. The term “privilege” in the context of the law of defamation refers to an occasion on which the publisher of an otherwise defamatory communication enjoys immunity against being held liable for the tort of defamation. The term “privilege” used in the context of the provisions of the Evidence Act relied upon by Mr Al-Shennag characterises a communication that enjoys immunity from the processes of compulsory disclosure.
32 The final basis for objection is that the content of the “undisclosed part” (presumably a reference to the parts of Mr Al-Shennag’s statement not admitted into evidence at the hearing before Commissioner Tabbaa) is irrelevant to any issue in the proceedings. It is, of course, not a requirement for leave to inspect that the documents produced be directly probative of the facts in issue in the proceedings. The precise scope of a party’s entitlement to object to inspection of documents produced in response to a subpoena on the grounds of relevance may be open to debate, but the objection is not well-founded in the present case.
33 The issues to be determined at the further hearing of Mr Al-Shennag’s defamation claim include the causes of his alleged economic loss. Mr Al-Shennag claims that his dismissal from employment with Bankstown City Council and his present incapacity to earn are due to the publication of Mr Woodcock’s report. His statement prepared for the purpose of his wrongful dismissal claim plainly has sufficient relevance to those issues to warrant its being made available for inspection by Mr Woodcock.
34 I am satisfied that Mr Woodcock should be permitted to inspect the contents of envelope 1.
Category 2 - statement prepared by Mrs Al-Shennag
35 The second document to which access is opposed is the statement prepared by Mr Al-Shennag’s wife for the purpose of the Industrial Relations Commission proceedings. The grounds of objection are the same in respect of that statement as in respect of the statement of Mr Al-Shennag.
36 It is not clear from the material before me whether Mrs Al-Shennag’s statement was among the additional material tendered by Mr Al-Shennag on the voir dire in the hearing before the Full Bench. However, a copy of Mrs Al-Shennag’s statement was included amongst documents to which Mr Al-Shennag granted access to Mr Woodcock on 13 May: see affidavit of Michelle Mulder affirmed 1 October 2009 at paragraph 15.
37 At the hearing before me, Mr Al-Shennag sought to maintain his objection to access to the statement notwithstanding that fact. I do not think that position is sustainable. In my view, any privilege in the statement of Mrs Al-Shennag has been lost. Mr Woodcock should be permitted to inspect the contents of envelope 2.
Category 3 - Mr Al-Shennag’s submissions in the Industrial Relations Commission
38 The next category of documents to which access is opposed consists of written submissions prepared by Mr Al-Shennag for the purpose of the Industrial Relations Commission proceedings. Mr Woodcock pointed to transcript of the hearing before the Full Bench of the Commission from which it is apparent that there were written submissions filed with the Commission by Mr Al-Shennag which were received and read by the Full Bench (transcript dated 20 February 2002, reproduced in Exhibit A at pages 154 and 175).
39 The particular submissions received and read by the Full Bench are not specifically identified in the transcript. However, it was not suggested by Mr Al-Shennag that there is any written submission among the documents now produced to this Court which was not received by the Full Bench. Rather, his objection to Mr Woodcock’s inspecting the submissions was founded on the same arguments as are relied upon in respect of his statement discussed above. For the reasons already stated, I am of the view that Mr Al-Shennag’s objections to access to any document received by the Industrial Relations Commission are misconceived. Mr Woodcock should have access to those documents.
Categories 4 and 5 - statements of Mr Kerzinger, Mr Bullock and Ms Gallagher
40 The next category of document to which access is opposed consists of statements filed on behalf of Bankstown City Council in the proceedings in the Industrial Relations Commission. The statements in question are the statements of Mr Klaus Kerzinger dated 28 September 2000 and Mr Christopher Bullock dated 2 October 2000 (envelope 4) and a statement of Ms Margot Gallagher (the date of which is illegible) (envelope 5).
41 The first basis for Mr Al-Shennag’s objection to access to those statements is s 120 of the Evidence Act. In the case of those statements, the objection is completely misconceived. The three statements were filed on behalf of Bankstown City Council. It is clear that they were not prepared by or at the direction of Mr Al-Shennag and accordingly no question of any privilege under s 120 arises.
42 The second basis for objection is s 130 of the Evidence Act. I have considered the contents of the statements and see nothing in them that should attract the protection of that section.
43 The next basis for objection to access is s 128A of the Evidence Act. As already noted, that section deals with the determination of objections that invoke the privilege against self-incrimination. No such objection has been taken by any of the authors of the three statements in question.
44 The remaining objections raise the same issues as are considered above in respect of Mr Al-Shennag’s statement (category 1). I am satisfied that Mr Woodcock should have access to categories 4 and 5.
Category 6 - protected disclosures
45 Category 6 consists of a collection of documents to which the stated objection to access is “protected disclosure - public interest immunity - s 130 Evidence Act 1995”. The documents in question were not itemised by Mr Al-Shennag in his statement of objections provided to Mr Woodcock. Accordingly, Mr Woodcock was unable to address any submissions to those documents and was left to invite the Court to inspect them.
46 I have inspected the documents placed in envelope 6 by Mr Al-Shennag. The material has been divided (by post-it notes) into four bundles. The first is a large bundle of correspondence apparently precipitated by the complaint made by Mr Al-Shennag to the Independent Commissioner Against Corruption. The correspondence discloses that the Commission regarded the matter as a protected disclosure within the meaning of the Protected Disclosures Act. So far as I am able to ascertain, it is on that basis that Mr Al-Shennag contends that the material is protected from disclosure in these proceedings. As already explained, that is a misconception. The protection afforded to protected disclosures under the Protected Disclosures Act does not confer any discrete privilege against disclosure of such material in proceedings in this Court.
47 There is other correspondence in the same bundle which appears to have been included under the rubric “disclosures” on the basis that it contains complaints made by Mr Al-Shennag about other engineers or other employees of the Council. There is also some correspondence with the Human Rights and Equal Opportunity Commission. I see nothing in any of that correspondence of a kind such as to attract protection under the Protected Disclosures Act or under s 130 of the Evidence Act.
48 The second bundle of material contained in envelope 6 is marked “page 3 and 4 of volume 1 of 2 and page 6 of volume 2 of 2 to the plaintiff’s appeal book to the IRC”. The pages in question appear to be part of the index to a set of appeal books prepared by Mr Al-Shennag in the Industrial Relations Commission proceedings. As best I am able to understand from the content of those pages, the basis for the objection appears to be that they disclose material of the same kind as is contained in the correspondence already discussed. For the same reasons, I do not think the objection on that basis is sound.
49 The third bundle of material in envelope 6 is described as “page 3, 4, 7, 8 of the appeal book before IRC”. That material is in the same category as the pages of the index just discussed.
50 The final document in envelope 6 is a letter dated 17 March 2000 from Dr Jean Lennane to Carters law firm. So far as I am able to ascertain from the content of that report, together with the content of Mr Al-Shennag’s schedule of objections, the basis for the objection to access to that report appears to be that it records the fact that Mr Al-Shennag had made a disclosure to ICAC. For the reasons already discussed, I do not think that is a proper basis for depriving Mr Woodcock of access to that document.
51 I am satisfied that Mr Woodcock should be granted leave to inspect the contents of envelope 6.
Category 7 - without prejudice communications
52 Mr Al-Shennag has withdrawn his objection to the documents previously listed under category 7.
Category 8 - letter to Council from Mrs Al-Shennag
53 The document in envelope 8 is a letter dated 5 May 1997 from Mr Al-Shennag’s wife to the General Manager of Bankstown City Council. Access to that document is objected to on grounds identified as “public interest immunity - s130 Evidence Act 1995”. Mr Al-Shennag has also referred, in that context, to s 128A of the Evidence Act. I have considered the contents of the letter. I see nothing in it such as to attract privilege on either of those grounds. Mr Woodcock should have leave to inspect that document.
Category 9 - prior worker’s compensation claim
54 The documents placed in envelope 9 are described as “correspondence, statements, medical reports and rehabilitation reports relating to a worker’s compensation claim made by the plaintiff in 1996”. The basis for Mr Al-Shennag’s objection to access to those documents is that they fall outside the terms of the subpoena to Bankstown City Council and are of no relevance to the matters pleaded in his claim in the present proceedings.
55 The documents sought by the subpoena issued to Bankstown City Council at the request of Mr Woodcock included the following category:
- “(2) All Documents relating to the employment of the plaintiff, Abdullah Al-Shennag (date of birth 1 January 1956), at Bankstown City Council and/or the Civic Services Group (together the BCC) during the period 16 October 1989 to 12 May 2000 including but not limited to all Documents relating to:
- (a) the plaintiff’s employment terms and conditions;
- (b) leave taken by the plaintiff and the reasons for the leave;
- (c) warnings provided to the plaintiff by the BCC or its officers of (sic) employees;
- (d) any allegations or complaints made by the plaintiff against the BCC or its officers or employees;
- (e) any complaints made against the plaintiff; and
- (f) the plaintiff’s compliance or co-operation with the Council’s employee counselling or complaints procedures, or procedures for the rehabilitation or return to work of employees affected by illness, stress or other disability.”
56 As already noted, Mr Al-Shennag moved to have the subpoena set aside. That application was dismissed by Adams J on 19 May 2009. The documents in envelope 9 clearly respond to the terms of the subpoena. I should, however, note a difficulty I encountered in reaching that conclusion. Some of the documents are handwritten medical notes relating to Mr Al-Shennag, which I have found almost illegible in parts. It is clear, however, that the documents are medical records relating to Mr Al-Shennag during the relevant period. It is equally clear that they have come into the possession of Bankstown City Council. Indeed, the notes I am referring to are on the letterhead of Bankstown City Council, and appear to have been generated by the Council within its occupational safety role. Other documents in the same bundle refer to a claim made by Mr Al-Shennag for worker’s compensation against the Council and the notes appear to relate to that claim. On that basis, I am satisfied that it is appropriate to grant Mr Woodcock access to those documents.
Category 10 – “without prejudice” correspondence
57 I was informed at the hearing that Mr Woodcock does not press his application for leave to inspect the documents listed under category 10, which have been placed in envelope 10 by Mr Al-Shennag. There is an additional document in envelope 10 which is not listed in Mr Al-Shennag’s schedule (a letter dated 9 July 2001 from Mr Al-Shennag to Mr Kevin Hill). That letter appears to fall into the same category and I assume leave to inspect that document will not be sought. Mr Woodcock should not have leave to inspect those documents.
Category 11 - a photograph of Mr Al-Shennag
58 Mr Woodcock does not press for access to the document listed in category 11 (a photograph of Mr Al-Shennag, which he was unable to locate in any event).
Category 12 - medical reports
59 The documents objected to under category 12 are described as “various medical reports, notes and etc”. Access to those documents is objected to on the grounds of s 126B of the Evidence Act. That provision does not create a statutory privilege against disclosure. It confers a judicial discretion in relation to evidence of protected confidences.
60 The documents in envelope 12 record communications made by Mr Al-Shennag to medical professionals in the context of a sick leave claim apparently made by him whilst he was employed by Bankstown City Council. It is doubtful whether a medical practitioner retained in those circumstances (where his or her reports would be considered by the employer) is a confidant within the meaning of s 126A. Further, as submitted on behalf of Mr Woodcock, the fact that the material has been produced from the files of the Council is inconsistent with the existence of any protected confidence.
61 In any event, I would not be inclined to exercise my discretion so as to deprive Mr Woodcock of access to that material. By commencing these proceedings, Mr Al-Shennag has squarely put in issue the question of his earning capacity before and after publication of Mr Woodcock’s report. The material in envelope 12 is probative and important in that context. I am satisfied that Mr Woodcock should have access to those documents.
62 Orders:
(1) I grant leave to the second defendant, Mr Woodcock, to inspect the documents contained in MFI 3 except for the documents contained in envelope 10.
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