Australian Commercial Doors Pty Ltd v Anthony Close
[2015] VSC 553
•7 October 2015
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMON LAW DIVISION
S CI 2015 00604
| AUSTRALIAN COMMERCIAL DOORS PTY LTD (ACN 096 630 296) | Plaintiff |
| v | |
| ANTHONY CLOSE | Defendant |
---
JUDGE: | DALY AsJ |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 1 October 2015 |
DATE OF RULING: | 7 October 2015 |
CASE MAY BE CITED AS: | Australian Commercial Doors Pty Ltd v Anthony Close |
MEDIUM NEUTRAL CITATION: | [2015] VSC 553 |
---
RULING
---
PRACTICE AND PROCEDURE — Application to strike out defence — Supreme Court (General Civil Procedure) Rules 2005, r 24.02 — Application misconceived, as discovery made and no inspection ordered — No breach of order – Maintenance of a claim for legal professional privilege does not warrant making an order under r 24.02.
LEGAL PROFESSIONAL PRIVILEGE— Waiver – Reference by a solicitor to instructions in a Solicitors Inquiry Form supporting a claim for impairment benefits under s 98C of the Accident Compensation Act 1985 — Whether instructions amounted to conduct inconsistent with the maintenance of the claim for privilege — Mann v Carnell (1999) 201 CLR 1, French v Triple M Melbourne Pty Ltd & Ors Ruling (No 1) [2008] VSC 547, Osland v Secretary to the Department of Justice (2008) 82 ALJR 1288 and ACCC v Coles Supermarkets [2014] FCA 45 considered – Evidence Act 2008 (Vic), s 122(2) and s 122(3)(a) and (b) — Whether provision of information “knowing” and “voluntary”— Test for determining disclosure of the substance of the evidence — QUBE Logistics (Vic) Pty Ltd v Wimmera Container Line Pty Ltd [2013] VSC 695 and Lactalis Jindi Pty Ltd & anor v Jindi Cheese Pty Ltd & ors [2013] VSC 475 applied — Disclosure of information pursuant to a protocol for the provision of information regarding prior injuries and medical treatment to assist with the defendant’s claim for an impairment benefit under s 98C of the Accident Compensation Act 1995 not made under compulsion of law —Answer of “not applicable” to questions on solicitor inquiry form amounted to “knowing” and “voluntary” disclosure — Substance of instructions disclosed – Inspection ordered.
---
APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr J Fetter | DST Legal |
| For the Defendant | Mr T J Sowden | Robinson Gill |
HER HONOUR:
In this proceeding, the plaintiff, Australian Commercial Doors Pty Ltd, claims damages against the defendant, Mr Anthony Close, a former employee of the plaintiff, in relation to what was said to have been misleading information in his employment application to the plaintiff. It is alleged that in applying for employment, the defendant represented that:
(a) he enjoyed good health;
(b) he had no injury or illness which could be aggravated by the type of work for which he applied;
(c) he had never suffered any back strain, joint strain, ligament strain, muscle strain, injury or damage; and
(d) he had no pre-existing injuries of which he was aware or could reasonably expect or foresee could be affected by the nature of the position for which he was applying.
It is not in dispute, at least for the purposes of this proceeding, that some five months after commencing his employment, the defendant suffered an injury to his lower back while at work.
The plaintiff alleges that the representations referred to above were false, and, among other things, the defendant did have pre‑existing injuries of which he was aware or could reasonably expect or foresee could be affected by the nature of the position for which he was applying. Particulars are provided of this allegation. The plaintiff alleges that by making these (allegedly false) representations, the defendant engaged in misleading and deceptive conduct in contravention of s 9 of the Fair Trading Act 1999, or alternatively is liable for negligent misstatement and/or the tort of deceit. The plaintiff claims by way of damages any wages paid to the defendant for days he did not work owing to his injuries, any excess payable by the plaintiff to any insurer in respect of the defendant’s claim for compensation against the plaintiff, and any increased premium which has become or may become payable by the plaintiff to any insurer as a direct or indirect result of the defendant’s claim against the plaintiff.
By way of further factual background, the defendant made claims for compensation as a result of his injuries, including a claim for impairment benefits under ss 98C and 98E of the Accident Compensation Act 1985 (Vic) (‘ACA’). It appears that a common law claim made or foreshadowed by the defendant was compromised in May 2015. The defendant instructed Maurice Blackburn Lawyers to act for him in relation to any claims made by him arising out of his injury.
The quantum of the plaintiff’s damages claim is in the order of $60,000 to $70,000. The matter has been set down for trial on 18 November 2015. Unfortunately, disputes regarding discovery and particulars have somewhat derailed the pre‑trial timetable, although there is probably still sufficient time to put the matter back on track. This application arises out of one of these disputes.
The plaintiff, by its summons filed 17 September 2015, sought orders that the defendant’s defence be struck out pursuant to rule 24.02 of the Supreme Court (General Civil Procedure) Rules2005, on the basis that the defendant has failed to comply with his discovery obligations.
Upon reflection, the plaintiff’s application for dismissal under r 24.02 is not simply heavy handed, as I indicated directly during the course of the hearing of the application, but is completely misconceived. Rule 24.02 enables the Court to dismiss a proceeding or strike out a defence if a party fails to comply with, among other things, an order for the discovery or inspection of documents. The defendant has in fact made discovery of the documents sought by the plaintiff in its solicitor’s letter of 21 August 2015. In this letter the following documents were sought, being
all file notes, documents, correspondence evidencing Anthony Close’s instructions to Ms Carolyn Ford of Maurice Blackburn Lawyers.
In each of the three affidavits of documents sworn by the defendant, the defendant claimed privilege of the following documents under part 2 of schedule 1 of the affidavit:
File of papers and briefs comprising instructions to my Solicitors and Counsel, memoranda, drafts, notes, letters, notices, correspondence, certificates, and other reports or enquiries and sundry documents made or obtained by me, my servants and agents and legal advisors for the purposes of obtaining and giving legal advice (as the case may be) in reference to legal proceedings arising out of the incident the subject of this proceeding as well as documents covered by medical privilege.
The description referred to above makes it clear that the claim is made in respect of any legal proceeding relating to the injury said to have been suffered by the defendant while employed by the plaintiff. There have been no orders made for inspection of the documents sought by the plaintiff (‘disputed documents’). Accordingly, there has been no default on the part of the defendant in making discovery. He merely resists producing the documents sought for inspection, on the uncontroversial basis that his solicitor’s file is subject to a claim for legal professional privilege.
Therefore, it would be open to me to simply dismiss the plaintiff’s application, with costs. However, given the pending trial date, the quantum of the claim, the fact that the real issues in dispute have been ventilated in Court during the course of the hearing of the application, and the obligations imposed upon me by the Civil Procedure Act 2010, to facilitate the just, efficient, timely and cost-effective resolution of the real issues in dispute, I will deal with the arguments advanced on behalf of the plaintiff (along with the complaints of the plaintiff regarding the failure of the defendant to provide further particulars of his defence, which was also not the subject of the summons) on their merits. These reasons concern only the plaintiff’s application to inspect the disputed documents.
In seeking the disputed documents, the plaintiff does not dispute that the defendant has a legitimate claim to legal professional privilege in the disputed documents. Rather, the plaintiff says, any legal professional privilege has been waived by reason of the terms of s 122 of the Evidence Act 2008 (Vic) (‘Act’). There is no dispute that this is the applicable provision, given that by reason of s 131A of the Act the provisions of s 122 apply to pre‑trial applications for the production and inspection of documents as well as the admission of evidence at trial. Accordingly, the common law doctrine of waiver no longer applies, although of course the principles developed under the common law apply to determining whether there has been inconsistent conduct within the meaning of s 122(2) of the Act. Section 122 of the Act provides that:
Loss of client legal privilege—consent and related matters
(1)This Division does not prevent the adducing of evidence given with the consent of the client or party concerned.
(2)Subject to subsection (5), this Division does not prevent the adducing of evidence if the client or party concerned has acted in a way that is inconsistent with the client or party objecting to the adducing of the evidence because it would result in a disclosure of a kind referred to in section 118, 119 or 120.
(3)Without limiting subsection (2), a client or party is taken to have so acted if—
(a)the client or party knowingly and voluntarily disclosed the substance of the evidence to another person; or
(b)the substance of the evidence has been disclosed with the express or implied consent of the client or party.
(4)The reference in subsection (3)(a) to a knowing and voluntary disclosure does not include a reference to a disclosure by a person who was, at the time of the disclosure, an employee or agent of the client or party or of a lawyer of the client or party unless the employee or agent was authorised by the client, party or lawyer to make the disclosure.
(5)A client or party is not taken to have acted in a manner inconsistent with the client or party objecting to the adducing of the evidence merely because—
(a)the substance of the evidence has been disclosed—
…
(iii)under compulsion of law.
The plaintiff relied upon a document headed ‘Solicitor Inquiry Form’ which was completed by Ms Carolyn Ford of Maurice Blackburn and submitted to the plaintiff on or about 1 July 2013 in support of the defendant’s claim for impairment benefits under ss 98C and 98E of the ACA. The form was completed and signed by Ms Ford as part of a process established by what are described as ‘Impairment Protocols’, whereby, among other things, WorkSafe agrees to pay specified fees to claimants’ legal representatives to gather and collate information from treating doctors to enable the more accurate and timely assessment of claims for impairment benefits. A document headed ‘Impairment Protocols’ states as follows:
Treating doctor reports should include as a minimum requirement:
·diagnosis of injury or condition;
·specifics regarding frequency and extent of treatment;
·confirmation and extent of any pre-existing impairment or disability.
The Explanatory Memorandum from the WorkSafe website provides further context as to the circumstances in which the Solicitor Inquiry Form is completed:
1. Supporting medical material:
The explanatory memorandum in the AMA Guides to the Evaluation of Permanent Impairment (4th Edition) (‘AMA4’) requires that a worker’s medical history is available to the Independent Impairment Assessor. As a result, the existing claims manual and guidelines require that WorkSafe Victoria (‘WorkSafe’) collects and submits treating medical reports to the Independent Impairment Assessor.
Workers’ legal representatives are complaining that WorkSafe is not obtaining any or adequate treating practitioner reports.
2. Legally Represented Workers
The solution proposed is that workers’ legal representatives will provide medical reports and records if requested to do so by the agent. This medical information will comprise all records and reports arising from the treatment of the body part injured, including details and treatment of all prior injuries to the body part claimed. The treating doctor should also be asked to confirm in the body of their report the frequency and the extent of treatment, provide their diagnosis of the injury or condition, and provide their advice as to the level of any pre‑existing impairment or disability of the affected body part.
This is consistent with AMA4 requirements that the IMP has access to a full medical history of the worker.
…
To avoid duplication of enquiry the legal representative may request a list and copies of all treating doctor reports in the possession of WorkSafe in respect of a claim. When the Impairment claim is lodged the agent will request the legal representative to complete an enquiry form. The purpose of the enquiry form is to confirm the worker has been asked about prior or subsequent injuries or disease to the claimed body part or other body parts affecting the injury and which medical practitioners treated these condition(s). The solicitor will be requested to disclose the names of the treaters and confirm whether inquiries have been made to collect reports from those treaters. Completion of this form will be one of the triggers for payment to the legal representative of legal costs by WorkSafe.
In the Solicitor Inquiry Form signed by Ms Ford, under the heading ‘Inquiries Details’, Ms Ford states:
I, Carolyn Ford, confirm that I act on behalf of Mr Anthony Close in relation to his claim for impairment benefits pursuant to sections 98C and E of the Accident Compensation Act 1985.
The worker is claiming compensation for impairment benefit for injuries sustained on 22 March 2011 to the following parts or systems:
1. Lower back injury with right sciatica
The worker is currently or has been treated by the following medical practitioners in relation to the above injuries:
1. Royal Melbourne Hospital
2. Angliss Hospital
3. Box Hill Hospital
4. Dr Stephen Lim
The worker instructs me that he has suffered a prior or subsequent injury/condition to the following body parts or systems:
1. N/A
The worker instructs me that the following medication practitioner(s) treated him in relation to the prior or subsequent injuries or condition:
1. N/A
I have explained the contents of this request to the worker and I am satisfied that he understands the nature of the answers which have been given.
I have also explained to the worker the conditions attached to the VWA legal practitioner payment structure for 98C claims and I am satisfied that he understands.
Counsel for the plaintiff submitted that Ms Ford’s use of the words ‘N/A’ amounted to disclosure of the substance of the defendant’s instructions to her to the effect that he had not suffered a prior injury to his lower back, which amounted to conduct inconsistent with the maintenance of the privilege within the meaning of s 122(2) of the Act, either generally, or was deemed to be inconsistent conduct under s 122(3) of the Act by reason of the knowing and voluntary disclosure of the substance of the instructions, or the substance of the instructions having been disclosed with the express or implied consent of the defendant.
Counsel for the defendant submitted that the disputed documents could not have been relevant, on the basis that instructions provided in 2013 could not be relevant to an alleged misrepresentation made in 2010. However, I disagree with that submission, on the basis that there is evidence before the Court that, notwithstanding the statement made in the Solicitor Inquiry Form, the defendant had made complaints to medical practitioners regarding lower back pain, and that subsequent instructions to his solicitors may be relevant to the defendant’s knowledge and state of mind at the time he made his application for employment with the plaintiff. In any event, the broad description of the documents in part 2 of schedule 1 of the three affidavits of documents seems to impliedly concede that the documents are relevant.
The authorities concerning what amounts to waiver of privilege are well known, and there is no need to undertake an extensive review of those authorities for the purpose of this application, save to say that the position at common law remains the test set down in Mann v Carnell,[1] being that:
What brings about the waiver is the inconsistency, which the courts, where necessary informed by consideration of fairness, perceive, between the conduct of the client and the maintenance of confidentiality; not some overriding principle of fairness operating at large.
[1](1999) 201 CLR 1.
The question of whether a reference to ‘instructions’ in a communication amounts to conduct inconsistent with the maintenance of the privilege in documents evidencing communications between a solicitor and a client regarding the client’s instructions has been considered by this Court in French v Triple M Melbourne Pty Ltd & Ors Ruling (No 1) (‘French’),[2] in QUBE Logistics (Vic) Pty Ltd v Wimmera Container Line Pty Ltd (‘QUBE’).[3] In the former, J Forrest J referred to the authorities, including Osland v Secretary to the Department of Justice (‘Osland’),[4] where Gleeson CJ, Gummow, Heydon and Kiefel JJ stated:
Waiver of the kind presently in question is sometimes described as implied waiver, and sometimes as waiver ‘imputed by operation of law’. It reflects a judgment that the conduct of the party entitled to the privilege is inconsistent with the maintenance of the confidentiality which the privilege is intended to protect. Such a judgment is to be made in the context and circumstances of the case, and in the light of any considerations of fairness arising from that context or those circumstances.
Whether, in a given context, a limited disclosure of the existence, and the effect, of legal advice is inconsistent with maintaining confidentiality in the terms of advice will depend upon the circumstances of the case. As Tamberlin J said in Nine Films and Television Pty Ltd v Ninox Television Ltd, questions of waiver are matters of fact and degree.
[2][2008] VSC 547.
[3][2013] VSC 695.
[4](2008) 82 ALJR 1288 [45] and [49].
J Forrest J found that there had been no waiver of privilege by reason of a solicitor’s reference to ‘instructions’. He stated:[5]
[5]At [21]–[22].
Mere identification of the existence of a document or, in the context of this case, a statement as to the existence of instructions does not of itself constitute a waiver. In State of Victoria v Davies (citation omitted) the Court of Appeal said:
As Gibbs CJ stated in Attorney General (NT) v Maurice by reference to authority, it has been held that the privilege in respect of a document is not waived by the mere reference to that document in pleadings or in an affidavit, although the position will be different if the document is reproduced in full in the pleading or affidavit.
The reference to instructions in the 5 December letter was superfluous; the letter was clearly written on the basis of instructions without such an express reference being needed.
In my view, what was done by the letter of 5 November is no different to what is done day in day out by solicitors either forwarding a letter of demand or responding to allegations made by another party. Such demands or responses are made upon instructions (which may be stated expressly or implicitly) given by the client; there is, in my view, no inconsistency in the requisite sense where a solicitor sets out the client’s instructions in respect of matters of fact. In this case, the reference to taking instructions and then asserting that ‘the response was based on instructions’ cannot, without more, place this letter in any different position to any other letter asserting or disputing factual contentions based on instructions given by the client.
This statement was endorsed by Digby J in QUBE, and by Mortimer J in ACCC v Coles Supermarkets,[6] where her Honour rejected a submission that a party had waived privilege in any document evidencing that party’s instructions by reason of there being an exchange of correspondence between solicitors regarding the formulation of an agreed statement of facts.
[6][2014] FCA 45.
I too do not consider that a mere reference by a solicitor to having been instructed about certain matters amounts to conduct inconsistent with the maintenance of confidentiality in those instructions. After all, as submitted by counsel for the defendant, solicitors disclose the substance of their instructions every day, in letters of demand and other documents. There must be something more to amount to inconsistent conduct. Further, there is no unfairness, or at least no significant forensic unfairness to the plaintiff. The defendant has discovered the various medical records relating to past episodes of back pain, and the plaintiff has relied upon those documents in support of its application. In my view, there is a relevant analogy to be drawn between the making of a claim under a statutory compensation scheme and providing information in support of that claim with the issue of a detailed letter of demand, or an exchange of correspondence regarding the preparation of an agreed statement of facts. If the contentions of the plaintiff as to what amounts to inconsistent conduct are taken to their extreme it would be arguable that the filing and service of a ‘proper basis’ certificate under the Civil Procedure Act 2010 (Vic) could amount to waiver of legal professional privilege in the documents forming the basis of a party’s or solicitor’s opinion that the claim or defence has a proper basis.
Accordingly, if I were deciding the application under common law principles, as did J Forrest J in French and Mortimer J in ACCC v Coles Supermarkets, I would have found that Ms Ford’s completion of the Solicitor Inquiry Form would not have amounted to conduct inconsistent with the maintenance of legal professional privilege. It was simply providing information in support of a claim. However, by reason of s 131A of the Act, I am required to determine this application in accordance with the terms of s 122(3) of the Act, which deems that a party is taken to have acted inconsistently with the maintenance of the privilege if the client knowingly and voluntarily disclosed the substance of the relevant evidence or has consented to its disclosure. The exercise of ‘judgment’ referred to by Kiefel J in Osland as to whether limited disclosure of the existence and effect of legal advice amounts to inconsistent conduct is constrained by the existence of the deeming provision.
The construction of s 122(3) of the Act was the subject of consideration by Digby J in QUBE. In that case the solicitor for the plaintiff had sent the defendant a detailed letter of demand, referred to its ‘instructions’ and proffered its view as to the legal effect of the facts forming the subject matter of its instructions. Prior to the hearing of the application, the solicitor for the plaintiff deposed that in sending the relevant letter, it was not his intention to waive the plaintiff’s privilege, he had no instructions to do so, and any such waiver was inadvertent.
In QUBE, Digby J noted that the onus is on the party seeking to assert that privilege has been waived to persuade the Court that privilege has been lost. He was not persuaded that the sending of, in effect, a letter of demand, referring to instructions amounted to a waiver of privilege per se. He also observed that:
‘…most, if not all, letters of demand are necessarily expressly or impliedly, communicating what the lawyer acting for that party has been instructed. It is such instructions that provide the basis for the demand. Professional conduct and other requirements necessitate such letters being based on a client’s instructions.
If a solicitor advising a client could not assert the sort of matters asserted in the subject email for the fear of waiving privilege and its client being exposed to disclosure of the otherwise privileged communications, there would be an unjustified restriction imposed on the legal representative’s ability to communicate his or her client’s position and demands.[7]
[7]QUBE Logistics (Vic) Pty Ltd v Wimmera Container Line Pty Ltd [2013] VSC 695 [131]-[132].
Further, his Honour found that, in the circumstances of the communication, communicating the matters referred to in the letter did not amount to a ‘knowing and voluntary’ disclosure of the substance of the evidence, as the circumstances indicated inadvertence and carelessness. The required knowledge of the relevant disclosure was absent. He stated:
By employing the word “knowingly“ in s 122(3)(a), the legislature intended to add a pre-requisite to the operation of the section to ensure it was not triggered so as to effect a deemed disclosure simply because a client or party disclosed the substance of the evidence to another person. The section requires more than the mere physical act of the client or party disclosing the substance of the evidence to another person.
The likely intent of the legislature’s inclusion of the word “knowingly” is to be found in the ordinary and natural sense of that word in its context in the Act, including the apparent purpose of the provisions in which it was included.
In the context of Part 3.10 of the Act, the ordinary and natural meaning of the adverb “knowingly” in s 122(3)(a) is to add to the sense of the verb ‘disclose’ the requirement that the person disclosing does so consciously and intentionally. To act knowingly ordinarily and naturally means that the actor is aware of and intends the relevant act to occur.[8]
[8]Ibid [87]-[89].
His Honour considered the legislative history of the provision and went on to state:
I consider that before a knowing disclosure will be made out for the purposes of s 122(3) of the Act, it must be established, on the balance of probabilities, bearing in mind all relevant circumstances to do with the alleged disclosure, that the client or party making that disclosure has undertaken the physical act of disclosure consciously and intentionally. Unlike s 122(2), the focus in s 122(3) is on the intention of the person claiming privilege and in particular on that person’s intention in relation to the alleged “disclosure”. However, it is to be noted that this focus is distinct from a consideration of whether the person disclosing intended to waive client legal privilege which would otherwise be able to be asserted.
Because the legislature has rendered relevant whether the actor disclosed “knowingly” or not and thereby imported intent as an element of s 122(3)(a) and (b) (as explained below), evidence of the state of mind of the person making the disclosure may also be relevant and admissible. For example, where the person making the disclosure says that he or she voluntarily disclosed the substance of the evidence, however the disclosure was made as a result of the mistaken provision of a bundle of documents (in respect of which the disclosing party had earlier clearly communicated its intention to claim privilege) instead of a separate bundle of documents which were those intended to be disclosed.
I also observe that there is a spectrum of possible intent which may be relevant on the part of the person said to have disclosed. A client or party coming within the operation of s 122(3)(a) and (b) by “knowingly” and voluntarily disclosing the substance of certain otherwise privileged evidence may not understand that in so doing they are waiving client legal privilege which would otherwise protect those materials from production. The requisite consciousness and intention does not logically or necessarily extend to an understanding or intention by the discloser that they are waiving privilege by their action. To so construe s 122(3) of the Act would give rise to an unreasonable and unwarranted restriction on the operation of s 122(3) and would also not be consonant with the above stated purpose of the Part of the Act in which the provisions under consideration have been included.[9]
[9]Ibid [94]-[96].
His Honour also considered what amounted to express or implied consent for the purposes of s 122(3)(b):
I consider that both s 122(3)(a) and (b) and s 122(4) (which qualifies the operation of s 122(3)(a)) require that the client or party both knowingly and voluntarily disclose, and provide for such disclosure either themselves, or through the act of an employee or agent or their lawyer, by means of consenting to or authorising the relevant disclosure.
In the overall scheme of s 122 of the Act it would be illogical and inconsistent with the express requirement of s 122(3)(a) and s 122(4), that the disclosure be effected “knowingly and voluntarily”, if those same requirements were not also necessary to enliven the operation of s 122(3)(b). If this was not the case s 122(3)(b) would effect a disclosure, resulting in the loss of the client or party’s client legal privilege, in circumstances where the client or party cannot be said to have knowingly and voluntarily consented to the disclosure sought to be relied on to defeat the privilege.
This would lead to a situation where if the person disclosed the privileged materials, but did not do so “knowingly”, then privilege would not be waived, but if that person gave permission to someone else to disclose the information in exactly the same way, but did not do so “knowingly”, privilege would be waived. This is clearly a nonsensical approach and creates inconsistency of operation as between ss 122(3)(a), 122(4) and 122(3)(b).[10]
[10]Ibid [105]-[107].
In QUBE, Digby J referred to a decision of Almond J in Lactalis Jindi Pty Ltd & anor v Jindi Cheese Pty Ltd & ors[11]. In that case, Almond J was concerned with whether a disclosure fell within the terms of s 122(3) of the Act. The parties to the proceeding were parties to a sale of business agreement, which provided for the making of claims by the purchaser against the vendor after the sale was completed. One precondition to the making of a claim was that the purchaser must obtain advice from senior counsel that the claim had real prospects of success. The purchaser did make a claim, and referred to advice having been received in its statement of claim. Almond J rejected the submission that mere entry into the sale agreement on such terms amounted to a waiver of privilege in any advice obtained by the purchaser. However, after consideration of the terms of s 122(3) and the authorities, he concluded that the reference in the statement of claim to the advice was a knowing and voluntary disclosure under s 122(3) of the Evidence Act. In his reasons, his Honour noted that ‘s 122(3) is a prescription that sub(2) is taken to be satisfied if the requirements of sub (3) are met, and not merely a guideline for the application of s 122(2)’,[12] and that:
Further, the test for determining whether the ‘substance of the evidence’ has been disclosed under s 122(3) is not whether it would be unfair or not to require disclosure of the opinion. If there has been a knowing and voluntary, or a consensual, disclosure of the communication, the question of whether the ‘substance of the evidence’ has been disclosed requires the court to evaluate the degree of disclosure. It seems to me that considerations of fairness may, in a given case, inform the analysis of whether a disclosure was made knowingly, voluntarily or consensually. However, in my view, it is unlikely that there would be circumstances where it would be necessary to take into account considerations of fairness in the process of determining whether the substance of the evidence has been disclosed.[13]
[11][2013] VSC 475.
[12]Ibid [30].
[13]Ibid [61].
His Honour considered the meaning of ‘knowingly and voluntarily’ and ‘consent’ and referred to ‘knowingly and voluntarily’ as being a disclosure not made under compulsion of law, or by way of mistake, and stated, relevantly:[14]
The disclosure in the pleadings arose neither by mistake or by compulsion of law, but merely as a consequence of the course taken by the plaintiffs in endeavouring to pursue certain contractual rights. This course was taken by the plaintiffs deliberately.
[14]Ibid [35].
Further, His Honour turned his mind to the question of whether the substance of counsel’s advice had been disclosed, and determined that, based upon the form and the substance of the pleading, there had been a disclosure of the substance of counsel’s advice. In considering whether the substance of the evidence had been disclosed, his Honour observed:
In Spalvins, the Full Court of the Federal Court (Olney, Kiefel and Finn JJ) considered ss 122(2) and 122(4) of the Commonwealth Act (the then equivalent of ss 122(3)(a) and 122(30(B)) of the Victorian Act) and observed:
[S]ubject to the particular exceptions listed, s 122(2) and (4) inquire whether there has been a knowing and voluntary, or a consensual, disclosure of the ‘substance of the evidence’, that evidence containing the confidential communication or the contents of the confidential document of which ss 118 and 119 speak. The test is a quantitative one, which asks whether there has been sufficient disclosure to warrant loss of the privilege. If what is disclosed falls short of the test posed by the section, there is no waiver.
While important aspects of Spalvins were overruled by the Full Court of the Federal Court in Esso Australia Ltd v Commissioner of Taxation, it has not been overruled on this point. I accept that the appropriate test is whether there has been sufficient disclosure to warrant loss of the privilege.[15]
[15]Ibid [39]-[40].
Accordingly, what I must determine is whether the provisions of the information in the Solicitor Inquiry Form was knowing and voluntary, and whether the disclosure was a disclosure of the substance of the defendant’s instructions regarding any pre-existing injury to his lower back (and any investigation or treatment of such an injury).
In the current case, without more, I doubt that the completion of a standard form by the reference to the question being ‘not applicable’ could satisfy the degree of intentionality considered by Digby J to satisfy the threshold of what amounts to knowing and voluntary disclosure under s 122(3) of the Act. After all, arguably the statement amounts to a mere expression of opinion on the part of the solicitor that it is not necessary to answer the question.
However, what in my view contributes to my finding that the disclosure was knowing and voluntary is the statement by Ms Ford in the following terms:
I have explained the contents of this request to the worker and I am satisfied that he understands the nature of the answers which have been given.
In effect, by signing the form, Ms Ford is stating that it had been explained to the defendant that he was being asked about pre and post injury conditions insofar as they relate to his lower back, and that he authorised her to state that the questions were not applicable. In the absence of any evidence to the contrary, I can infer that he must have knowingly and voluntarily consented to that disclosure. The fact that no doubt the disclosure was made in circumstances that the solicitor was unlikely to have turned her mind to the question of whether she would be waiving privilege in her instructions, given that she was acting in accordance with an established protocol, does not, having regard to the statements by Digby J in QUBE, undermine the knowing and voluntary character of the disclosure.
Following on from the discussion during the hearing of the application, I did give some consideration as to whether the defendant was entitled to resist inspection of the disputed documents on the basis that the disclosure was made under the compulsion of law. However, despite reasonably extensive and thorough searches, I could not find any provision in the ACA, or regulations made under the ACA or any Ministerial Direction which compels the defendant to provide information about prior injuries and treatment to an employer, a claims agent, or WorkSafe when making a claim under s 98C of the ACA.
Section 91 of the ACA provides that the assessment of a degree of impairment must be made in accordance with the AMA Guidelines. Section 103 of the ACA requires that a claim for compensation must include an authority, signed by the worker, authorising a provider of a medical service or hospital service to the worker in connection with the injury to which the claim relates to give to the authority, self‑insurer or employer information regarding the service relevant to the claim. Section 104B of the ACA concerns claims for impairment benefits under s 98C. Section 104B(1D)(a) provides that WorkSafe or a self-insurer may suspend a claim if there is insufficient medical information available to determine whether to accept liability and if so, to assess the impairment. One might expect such material to include medical material about prior injuries, but there is no compulsion upon the claimant to provide that material.
The remaining question is whether the responses to the questions concerning previous injuries to the body part for which the s 98C benefit was claimed amounts to a disclosure of the substance of the defendant’s instructions to his solicitors. This is, as indicated, a quantitative assessment. It is difficult to reconcile the results of the application of the test in the authorities, no doubt reflecting the need to consider the facts and circumstances of each case.
In the current case, the matter is finely balanced. After all, the use of the brief response ‘N/A’ to the questions in the Solicitor Inquiry Form is arguably somewhat ambiguous. However, the response can mean only one of two things in the context of the questions or statements in the form, along with the statement made in the second last paragraph of the form to which the responses are given; either that the defendant has instructed Ms Ford that he has not suffered a prior injury to his lower back, or alternatively, that, based upon her instructions, Ms Ford has formed the opinion that it is not necessary to provide a response to these questions. In my view, the substance of the instructions has been disclosed by reason of the completion of the Solicitor Injury Form in these terms, notwithstanding the brevity of the response to the questions in the form.
I am conscious of the fact that, if my position in relation to this matter is correct, I am making a finding to the effect that, every day, in dozens of solicitors firms in this State, legal practitioners are unwittingly waiving their client’s legal professional privilege in relation to part of their files evidencing their instructions on a routine basis. However, given that the Impairment Protocols do not have the force of law, any information provided pursuant to this protocol, or any like protocol, to the extent that a claimant is providing information not expressly required to be produced pursuant to an act, regulation or ministerial direction, a claimant may be exposed to an assertion that he or she has waived privilege in the underlying instructions. That is unfortunate, given that the expressed intention of the Impairment Protocols is to facilitate the efficient resolution of claims. But those considerations cannot inform the task of construction under s 122 of the Act. Rather, they may be matters that practitioners may want to address with the authorities, the Minister, or the legislature.
However, the description of the disputed documents extends far beyond the instructions regarding prior injuries and medical treatment with respect to the lower back, but rather includes any instructions given to Ms Ford in relation to any matter. That is far too broad a claim. Making orders in those terms would not reflect the relatively narrow subject matter of the documents over which the defendant is deemed to have waived privilege, and would be inconsistent with the importance of protecting, except in clear cases of waiver, the confidentiality of communications between legal practitioners and their clients.[16]
[16]Daniels Corporation International Pty Ltd v Australian Competition and Consumer Commission (2002) 213 CLR 543.
I shall hear further from the parties regarding the form of orders, future directions for the conduct of the proceeding, and the question of costs.
---
1