Andrews and Telstra Corporation Ltd

[2008] AATA 943

Administrative Appeals Tribunal

DECISION AND REASONS FOR INTERLOCUTORY DECISION [2008] AATA 943

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No 2007/1938

GENERAL ADMINISTRATIVE   DIVISION		)
Re		JULIE ANNE ANDREWS

Applicant

And TELSTRA CORPORATION LTD

Respondent

DECISION

Tribunal The Hon R J Groom (Deputy President)

Date22 October 2008

PlaceHobart

Decision The Tribunal finds that legal professional privilege attached to the letter from Ogilvie Jennings of 7 August 2007 and the letter from Dr Humphries of 17 August 2007 has not been waived.  Leave is therefore not granted to inspect either of those documents

[Sgd Hon R J Groom]

Deputy President

CATCHWORDS

Procedure - legal professional privilege - disclosure of privileged material to third party - waiver of privilege

Commissioner of Australian Federal Police and Propend Finance Pty Ltd and others (1997) 188 CLR 501

Mann and Carnell (1999) 201 CLR 1

Thomason v Campbell Town Municipal Council (1939) 39 SR NSW 347.

Atkinson and T & P Fabrications and others [2001] TASSC 38

Temwell Pty Ltd v DKGR Holdings Pty Ltd [2003] FCA 948

REASONS FOR INTERLOCUTORY DECISION

22 October 2008            The Hon R J Groom (Deputy President)

1.         On 8 November 2007 the Tribunal determined that two documents produced to the registry in response to a summons to produce were subject to legal professional privilege.

Those documents were:

• a letter from Ogilvie Jennings, Solicitors, who act for the applicant,  addressed to Dr Humphries dated 7 August 2007;  and
• a letter from Dr Humphries to Ogilvie Jennings dated 17 August 2007.

As a result of that decision leave to inspect the two documents was not granted to the respondent.

2.         The respondent now contends that there has been an implied waiver of the privilege attaching to Dr Humphries letter and also attaching to the earlier letter from Ogilvie Jennings addressed to Dr Humphries.

3.   On 16 October 2007 Ogilvie Jennings wrote to Dr Peter Sharman, a Consultant Occupational Physician, for the purpose of obtaining an expert medical opinion. 

4.       In a written report dated 1 February 2008, Dr Sharman stated as follows:

"You have provided copies of the following reports, which I have also considered in the preparation of this report.

·     Medical reports Dr David Humphries dated 16 February 2007 and 17 August 2007

·     Medical reports Mr Max Wearne dated 24 November 2006 and 19 January 2007

·     Medical report Dr Derek Stanley-Clarke dated 2 May 2006

·     Medical report Dr Peter Stevenson dated 28 September 2007".

5.     The report from Dr Humphries of 17 August 2007, which Dr Sharman referred to in his report of 1 February 2008 is the letter from Dr Humphries of that date which the Tribunal has determined is subject to legal professional privilege.

6.      I have considered the written submissions filed by the parties, the email from Dr Sharman dated 28 July 2008 which was attached to the applicant's written submission in reply, the other documents tended in evidence at the hearing, the earlier oral submissions by Ms Demetrios and Ms Mackie and also the further oral submissions by Mr Dube and Ms Mackie. 

7.      When one considers the rationale  behind legal professional privilege and "the high public interest which the privilege defends" (the words of Kirby J in Commissioner of Australian Federal Police and Propend Finance Pty Ltd and others (1997) 188 CLR 501 at 502) it follows that a Tribunal should not lightly decide that there has been an implied waiver of a privilege already recognised by the Tribunal.

8.     It is clear that the mere delivery of a privileged document to a third party is not of itself a waiver of privilege.  There is ample authority to support that proposition including the decision of the Full High Court in Mann and Carnell (1999) 201 CLR 1 and, for example, Thomason v Campbell Town Municipal Council (1939) 39 SR (NSW 347 at 355).

9.   What must be established to the Tribunal's satisfaction is some action or conduct which is inconsistent with the notion that the document remains privileged.

10.     If a party places reliance on the contents of a privileged document for the purposes of prosecuting a claim, that party can hardly continue to claim that the document is privileged.

11.      In an email addressed to the applicant's solicitors dated 28 July 2008, Dr Sharman said:

"I confirm that, while I had access to Dr Humphries reports, his opinion had no bearing on my opinions as expressed in my report of 1 February 2008.  My opinion was based entirely on my consultation on 18 September 2007 ...".

12.      When Dr Sharman attended before the Tribunal and was cross-examined by counsel for the respondent he confirmed on a number of occasions in the course of his evidence that Dr Humphries letter of 17 August 2007 had not influenced the opinions he expressed in his report of 1 February 2008. 

13.      Dr Sharman said:

"... As far as I recall, I had formed my view even before I saw Dr Humphries opinion because I wrote back to the GP after I saw the patient.  So I don't really think I've had any regard for anybody else's opinion in this because I had already formed my view from seeing her, and that was just relayed in the report I wrote to Ms Mackie".

(Transcript page 12)

Dr Sharman had earlier said in his evidence:

"... I suppose it is interesting to read what other doctors write, but I usually try and form my own opinion based on the – this area of medicine is the area I specialise in, in occupational medicine, and – I mean, Dr Humphries is a sports physician, and I certainly respect his work as a sports physician, but I think my observations and the history that I get from the patient in an occupational area, I really form my own view".

(Transcript page 11)

Dr Sharman further said in evidence speaking of Dr Humphries' letter:

"...  but it really didn’t have any bearing – I suppose, all I can – so reiterate what I put in the email, it really didn’t have any bearing on my opinion because I had enough information I felt to make up my own mind.  I mean, if Dr Humphries had done some tests or something that were helpful to my diagnosis then that might be different ....":

(Transcript page 12)

14.      There is no evidence in the body of Dr Sharman's report of 1 February 2008 of any explicit reliance on the letter from Dr Humphries of 17 August 2007.  It is interesting to note, however, that there is reference to the reports from Dr Stanley Clarke, Dr Wearne and Dr Stevenson which were the other reports referred to at the beginning of Dr Sharman's report of 1 February 2008.  The solicitors for the applicant had asked questions of Dr Sharman in respect to the reports of each of those three doctors but not of Dr Humphries' reports.

15.      The Tribunal notes that the facts in this case are similar to those in the 2001 Supreme Court of Tasmania decision of Evans J in Atkinson and T & P Fabrications and others [2001] TASSC 38. I concur with His Honour's reasoning in that decision.

16.      Mr Dube, for the respondent, referred to the decision of Ryan J in Temwell Pty Ltd v DKGR Holdings Pty Ltd [2003] FCA 948 and in particular paragraph 12 of that decision. His Honour said that:

"It is not only information which has been affirmatively taken into account, but information which has been disregarded or discounted by the expert witness which may be useful in evaluation his or her opinion".

17.      There is no evidence here to indicate that Dr Humphries' letter assisted Dr Sharman to disregard or discount any relevant factors.  The evidence is that Dr Sharman relied on his own observations and the history he had himself obtained directly from the applicant for the purposes of writing his report.

18.      As has been said the Tribunal should not lightly remove privilege from particular documents unless there is clear evidence of conduct which is inconsistent with the notion that the document in question should remain privileged.

19.      The evidence before the Tribunal establishes to my satisfaction that Dr Sharman has not placed any reliance upon Dr Humphries' letter of 17 August 2007, nor was that document useful to Dr Sharman in the preparation of his report.

20.      If in the course of the substantive hearing of this application it became clear from the evidence that there was indeed reliance placed upon Dr Humphries' letter of 7 August 2007 then, of course, it would be open to the respondent at that stage to again raise the issue and seek to have access to the documents.

21.      The Tribunal finds that legal professional privilege attached to the letter from Ogilvie Jennings of 7 August 2007 and the letter from Dr Humphries of 17 August 2007 has not been waived.  Leave is therefore not granted to inspect either of those documents.

I certify that the 21 preceding paragraphs are a true copy of the reasons for the interlocutory decision herein of The Hon R J Groom (Deputy President)

Signed:  R Hunt (Administrative Assistant)

Date/s of Hearing  10 October 2008
Date of Decision  22 October 2008
Counsel for the Applicant         Ms Leigh Mackey
Solicitor for the Applicant          Ogilvie Jennings
Counsel for the Respondent     Mr Ben Dube
Solicitor for the Respondent     Sparke Helmore