Boyes v Colins

[2000] WASCA 344

BOYES -v- COLINS [2000] WASCA 344

Reported Decision:	(2000) 23 WAR 123
Jurisdiction:	SUPREME COURT OF WESTERN AUSTRALIA	Citation No:	[2000] WASCA 344
Court:	THE FULL COURT (WA)
Case No:	FUL:179/1999	Heard:	8 & 28 SEPTEMBER 2000
Coram:	PIDGEON J IPP J WALLWORK J	Delivered:	10/11/00
No of pages:	37	Judgment Part:	1 of 1
Result:	Appeal allowed in part
PDF Version

Parties:	MELANIE BOYES JAMES CECIL COLINS
Catchwords:	Evidence Legal professional privilege Video film taken for the purpose of contemplated or pending litigation is a communication and subject to legal professional privilege Difference between litigation privilege and legal professional privilege Litigation privilege remains operational Video film as real evidence Whether video film is subject to privilege Whether privilege waived by an order under O 36 r 4 allowing use of video film at trial without discovery inspection before trial The test for waiver of privilege is objective Procedure Discovery Application under O 36 r 4 Discretion under O 36 r 4 biased towards disclosure Injustice caused by not producing the video film "Cards on the table" approach Relevance of case management Principles Approach regards medical witnesses Order excusing respondent from producing video film overturned
Legislation:	Rules of the Supreme Court 1971, O 26, O 36 r 4
Case References:	Attorney General (NT) v Maurice (1986) 161 CLR 475 Baker v Campbell (1983) 153 CLR 52 Brown v Metro Meat International Ltd [2000] WASCA 123 Carter v Managing Partner, Northmore Davy & Leake (1995) 183 CLR 121 Ceci v Bonk (1992) 89 DLR (4th) 444 Chmara v Nguyen [1993] 6 WWR 286 Commissioner of Australian Federal Police v Propend Finance Pty Ltd (1997) 188 CLR 501 Cormier v Le Blanc (1993) 135 NBR (2d) 75 Craig v Troy, unreported; SCt of WA; Library No 950067; 24 February 1995 Digby v Essex County Council [1994] PIQR P53, CA Donaldson v Harris [1973] 4 SASR 299 Esso Australia Resources Ltd v Federal Commissioner of Taxation (1999) 168 ALR 123 Goldberg v Ng (1995) 185 CLR 83 Grant v Downs (1976) 135 CLR 674 Instant Colour Pty Ltd v Cannon Australia Pty Ltd, unreported; Fed Ct of A; 24 April 1995 J-Corp Limited v Australian Builders Labourers Federated Union of Workers (WA Branch) [No 1] (1992) 38 FCR 452 Jessup v Andre Gorjup, unreported SCt of T; 20 November 1997 Johnson v American Home Assurance Co, unreported, SCt of WA; Library No 940599; 28 October 1994 Khan v Armaguard Ltd [1994] 1 WLR 1204 Liszka v Castledine, (1999) 21 SR (WA) 194 Main v Goodine (1997) 192 NBR (2d) 230 Mercer v Chief Constable of the Lancashire Constabulary [1991] 1 WLR 367 Queensland v JL Holdings Pty Ltd (1997) 189 CLR 146 R v Derby Magistrate's Court, Ex p B, [1996] 1 AC 487 Re Taxation Appeals NT 94/281-291 (1995) 30 ATR 1279 Smith's Weekly Publishing Co Ltd v Sunday Times Newspaper Co Ltd (1923) 31 CLR 552 Southern Equities Corporation Ltd v WA Government Holdings Ltd (1993) 10 WAR 1 The Palermo (1883) 9 PD 6 Abraham v Lunn, unreported; DCt of WA; Library No 1517; 30 April 1986 Anderson v Bank of British Columbia (1876) 2 Ch D 644 Auchstaetter v Froese [1995] 4 WWR 716 Australian Coal & Shale Employees' Federation & Anor v Commonwealth (1953) 94 CLR 621 Australian Postal Commission v Hayes (1989) 23 FCR 320 Baker v Ashplant, unreported; DCt of WA; Library No D980211; 7 August 1998 BHP Pty Co Ltd [sic] v Mason (1996) 67 SASR 456 Brambles Holdings Ltd (t/as Oilfield & General Transport Co) v WMC Engineering Services Pty Ltd (1995) 14 WAR 239 Broad v Pitt [1828] 172 ER 528 Carbone v National Crime Authority (1994) 52 FCR 516 Carter Robbins v Harbord (1994) 69 SASR 229 Complete Technology Pty Ltd v Toshiba (Australia) Pty Ltd (1994) 53 FCR 125 Cotte v Macpherson, unreported; DCt of WA; Library No 2484; 15 June 1989 Devji v Longo Brothers Fruit Markets Inc (1999) 45 OR (3d) 82 Dingle v Commonwealth Development Bank of Australia (1989) 23 FCR 63 Djordjevic v Smajic, unreported; DCt of WA; Library No 2728; 20 March 1990 Genc v Terzi, unreported; DCt of WA; Library No 1494; 11 March 1986 General Accident Assurance Co v Chrusz (2000) 180 DLR (4th) 241 Hanos v Gordon, unreported; DCt of WA; Library No 449; 24 November 1981 Hickman v Taylor (1946) 329 US 495 Interchase Corporation Ltd (In Liq) v Grosvenor Hill (Q) Pty Ltd (No 1) [1999] 1 QD R 141 Kennedy v Lyell (1883) 23 Ch D 387 Kingston v State Fire Commission (1998) 8 Tas R 152 Lanzon v State Transport Authority (1985) 38 SASR 321 Lloyd v Centurion Roller Shutters Pty Ltd (1994) 10 SR (WA) 202 Mallandaine-Williams v Turner, unreported; DCt of WA; Library No 1459; 11 March 1986 Mann v Carnell (1999) 74 ALJR 378 Martin v Kennedy [1992] 2 QD R 109 McCutcheon v Paton, unreported; DCt of WA; Library No 1214; 28 March 1985 McGuinness v Kellogg Co of Great Britain Ltd [1988] 1 WLR 913 McPhee v City of Waneroo, unreported; DCt of WA; Library No 4808; 14 March 1996 Meier v McNab, unreported; DCt of WA; Library No 2451; 10 May 1989 Mills v Shire of Mundaring, unreported; DCt of WA; Library No 5018; 1 August 1996 Morton v SGIC, unreported; DCt of WA; Library No 4786; 22 February 1996 Murray v Woodstock General Hospital Trust (1988) 66 OR (2d) 129 Nagan v Holloway [1996] 1 QD R 607 National Employers Mutual General Insurance Association Ltd v Waind (1979) 141 CLR 648 Nickmar Pty Ltd v Preservatrice Skandia Insurance Ltd (1985) 3 NSWLR 44 Oates v Butterly [2000] WASC 65 O'Reilly v Commissioners of State Bank of Victoria (1983) 153 CLR 1 Panevski v Fenwick, unreported; DCt of WA; Library No 3887; 2 December 1993 Pecevski v Sprigg, unreported; DCt of WA; Library No 2857; 16 August 1990 Pendikoski v Moir, unreported; DCt of WA; Library No 2999; 22 February 1991 Popovic v Outokumpu Mining Australia Pty Ltd [2000] WADC 144 R v King [1983] 1 WLR 411 Re Griffin (1887) 8 LR (NSW) 132 Re Strachan [1895] 1 Ch 439 Robbins v Harbord (1994) 62 SASR 229 Robinson v Patrick Stevedoring (WA) Pty Ltd (1994) 10 SR (WA) 236 Sacrey v Berdan (1986) 10 CPC (2d) 15 Smith v Jones (1999) 169 DLR (4th) 385 Strowse v Hales Precision Metal Products Pty Ltd (1997) 19 SR (WA) 68 Trejmak v Craske, unreported; DCt of WA; Library No 5080; 20 September 1996 Tuia v Green, unreported; DCt of WA; Library No 1729; 9 March 1987 Uniting Church Homes v Coubray [2000] WADC 166 Wandell v Salvation Army Property Trust (WA) [2000] WADC 96 Wardle v The State of Western Australia, unreported; DCt of WA; Library No D970162; 23 May 1997 Waterford v Commonwealth (1987) 163 CLR 54 Waugh v British Railways Board [1980] AC 521 Wheeler v Le Marchant (1881) 17 Ch D 675 Youssef v Cross (1991) 80 DLR (4th) 314

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : THE FULL COURT (WA) CITATION : BOYES -v- COLINS [2000] WASCA 344 CORAM : PIDGEON J

IPP J
WALLWORK J

HEARD : 8 & 28 SEPTEMBER 2000 DELIVERED : 10 NOVEMBER 2000 FILE NO/S : FUL 179 of 1999

FUL 189 of 1999

BETWEEN : MELANIE BOYES

Appellant (Plaintiff)

AND

JAMES CECIL COLINS
Respondent (Defendant)

Catchwords:

Evidence - Legal professional privilege - Video film taken for the purpose of contemplated or pending litigation is a communication and subject to legal professional privilege - Difference between litigation privilege and legal professional privilege - Litigation privilege remains operational - Video film as real evidence - Whether video film is subject to privilege - Whether privilege waived by an order under O 36 r 4 allowing use of video film at trial without discovery inspection before trial - The test for waiver of privilege is objective

Procedure - Discovery - Application under O 36 r 4 - Discretion under O 36 r 4 biased towards disclosure - Injustice caused by not producing the video film - "Cards on the table" approach - Relevance of case management - Principles -


(Page 2)

Approach regards medical witnesses - Order excusing respondent from producing video film overturned

Legislation:

Rules of the Supreme Court 1971, O 26, O 36 r 4

Result:

Appeal allowed in part

Representation:

Counsel:

Appellant (Plaintiff) : Mr N J Mullany
Respondent (Defendant) : Mr G R Hancy & Mr J G Staude

Solicitors:

Appellant (Plaintiff) : James McManus & Associates
Respondent (Defendant) : Lawrence & Howell

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

Attorney General (NT) v Maurice (1986) 161 CLR 475
Baker v Campbell (1983) 153 CLR 52
Brown v Metro Meat International Ltd [2000] WASCA 123
Carter v Managing Partner, Northmore Davy & Leake (1995) 183 CLR 121
Ceci v Bonk (1992) 89 DLR (4th) 444
Chmara v Nguyen [1993] 6 WWR 286
Commissioner of Australian Federal Police v Propend Finance Pty Ltd (1997) 188 CLR 501
Cormier v Le Blanc (1993) 135 NBR (2d) 75
Craig v Troy, unreported; SCt of WA; Library No 950067; 24 February 1995
Digby v Essex County Council [1994] PIQR P53, CA
Donaldson v Harris [1973] 4 SASR 299
Esso Australia Resources Ltd v Federal Commissioner of Taxation (1999) 168 ALR 123
Goldberg v Ng (1995) 185 CLR 83
Grant v Downs (1976) 135 CLR 674


(Page 3)

Instant Colour Pty Ltd v Cannon Australia Pty Ltd, unreported; Fed Ct of A; 24 April 1995
J-Corp Limited v Australian Builders Labourers Federated Union of Workers (WA Branch) [No 1] (1992) 38 FCR 452
Jessup v Andre Gorjup, unreported SCt of T; 20 November 1997
Johnson v American Home Assurance Co, unreported, SCt of WA; Library No 940599; 28 October 1994
Khan v Armaguard Ltd [1994] 1 WLR 1204
Liszka v Castledine, (1999) 21 SR (WA) 194
Main v Goodine (1997) 192 NBR (2d) 230
Mercer v Chief Constable of the Lancashire Constabulary [1991] 1 WLR 367
Queensland v JL Holdings Pty Ltd (1997) 189 CLR 146
R v Derby Magistrate's Court, Ex p B, [1996] 1 AC 487
Re Taxation Appeals NT 94/281-291 (1995) 30 ATR 1279
Smith's Weekly Publishing Co Ltd v Sunday Times Newspaper Co Ltd (1923) 31 CLR 552
Southern Equities Corporation Ltd v WA Government Holdings Ltd (1993) 10 WAR 1
The Palermo (1883) 9 PD 6

Case(s) also cited:

Abraham v Lunn, unreported; DCt of WA; Library No 1517; 30 April 1986
Anderson v Bank of British Columbia (1876) 2 Ch D 644
Auchstaetter v Froese [1995] 4 WWR 716
Australian Coal & Shale Employees' Federation & Anor v Commonwealth (1953) 94 CLR 621
Australian Postal Commission v Hayes (1989) 23 FCR 320
Baker v Ashplant, unreported; DCt of WA; Library No D980211; 7 August 1998
BHP Pty Co Ltd [sic] v Mason (1996) 67 SASR 456
Brambles Holdings Ltd (t/as Oilfield & General Transport Co) v WMC Engineering Services Pty Ltd (1995) 14 WAR 239
Broad v Pitt [1828] 172 ER 528
Carbone v National Crime Authority (1994) 52 FCR 516
Carter Robbins v Harbord (1994) 69 SASR 229
Complete Technology Pty Ltd v Toshiba (Australia) Pty Ltd (1994) 53 FCR 125
Cotte v Macpherson, unreported; DCt of WA; Library No 2484; 15 June 1989
Devji v Longo Brothers Fruit Markets Inc (1999) 45 OR (3d) 82
Dingle v Commonwealth Development Bank of Australia (1989) 23 FCR 63
Djordjevic v Smajic, unreported; DCt of WA; Library No 2728; 20 March 1990


(Page 4)

Genc v Terzi, unreported; DCt of WA; Library No 1494; 11 March 1986
General Accident Assurance Co v Chrusz (2000) 180 DLR (4th) 241
Hanos v Gordon, unreported; DCt of WA; Library No 449; 24 November 1981
Hickman v Taylor (1946) 329 US 495
Interchase Corporation Ltd (In Liq) v Grosvenor Hill (Q) Pty Ltd (No 1) [1999] 1 QD R 141
Kennedy v Lyell (1883) 23 Ch D 387
Kingston v State Fire Commission (1998) 8 Tas R 152
Lanzon v State Transport Authority (1985) 38 SASR 321
Lloyd v Centurion Roller Shutters Pty Ltd (1994) 10 SR (WA) 202
Mallandaine-Williams v Turner, unreported; DCt of WA; Library No 1459; 11 March 1986
Mann v Carnell (1999) 74 ALJR 378
Martin v Kennedy [1992] 2 QD R 109
McCutcheon v Paton, unreported; DCt of WA; Library No 1214; 28 March 1985
McGuinness v Kellogg Co of Great Britain Ltd [1988] 1 WLR 913
McPhee v City of Waneroo, unreported; DCt of WA; Library No 4808; 14 March 1996
Meier v McNab, unreported; DCt of WA; Library No 2451; 10 May 1989
Mills v Shire of Mundaring, unreported; DCt of WA; Library No 5018; 1 August 1996
Morton v SGIC, unreported; DCt of WA; Library No 4786; 22 February 1996
Murray v Woodstock General Hospital Trust (1988) 66 OR (2d) 129
Nagan v Holloway [1996] 1 QD R 607
National Employers Mutual General Insurance Association Ltd v Waind (1979) 141 CLR 648
Nickmar Pty Ltd v Preservatrice Skandia Insurance Ltd (1985) 3 NSWLR 44
Oates v Butterly [2000] WASC 65
O'Reilly v Commissioners of State Bank of Victoria (1983) 153 CLR 1
Panevski v Fenwick, unreported; DCt of WA; Library No 3887; 2 December 1993
Pecevski v Sprigg, unreported; DCt of WA; Library No 2857; 16 August 1990
Pendikoski v Moir, unreported; DCt of WA; Library No 2999; 22 February 1991
Popovic v Outokumpu Mining Australia Pty Ltd [2000] WADC 144
R v King [1983] 1 WLR 411
Re Griffin (1887) 8 LR (NSW) 132
Re Strachan [1895] 1 Ch 439
Robbins v Harbord (1994) 62 SASR 229
Robinson v Patrick Stevedoring (WA) Pty Ltd (1994) 10 SR (WA) 236
Sacrey v Berdan (1986) 10 CPC (2d) 15
Smith v Jones (1999) 169 DLR (4th) 385
Strowse v Hales Precision Metal Products Pty Ltd (1997) 19 SR (WA) 68


(Page 5)

Trejmak v Craske, unreported; DCt of WA; Library No 5080; 20 September 1996
Tuia v Green, unreported; DCt of WA; Library No 1729; 9 March 1987
Uniting Church Homes v Coubray [2000] WADC 166
Wandell v Salvation Army Property Trust (WA) [2000] WADC 96
Wardle v The State of Western Australia, unreported; DCt of WA; Library No D970162; 23 May 1997
Waterford v Commonwealth (1987) 163 CLR 54
Waugh v British Railways Board [1980] AC 521
Wheeler v Le Marchant (1881) 17 Ch D 675
Youssef v Cross (1991) 80 DLR (4th) 314

(Page 6)

1 PIDGEON J: I agree with the reasons to be published by Ipp J.

IPP J:

The District Court action and the issues on appeal

2 This appeal (by leave) concerns the application of O 36 r 4 of the Rules of the Supreme Court 1971, which provides:

"Unless before or at the trial the Court otherwise orders, no plan, photograph or model shall be receivable in evidence at the trial of an action unless at least 10 days before the trial the parties, other than the party that intends to produce it, are given the opportunity to inspect it and to agree to its admission without further proof."

3 The parties are in dispute as to how a surveillance video film, made of the appellant at the instance of the respondent, may be used at the District Court trial of an action for damages for personal injuries brought by the appellant against the respondent. The appellant does not know when the film was made and is ignorant of its content. The essential questions are: Is the film subject to legal professional privilege? If so, has the privilege been waived? If not, should the respondent be entitled to an order under O 36 r 4 permitting the use of the film at the trial without first giving the appellant an opportunity of inspecting it? And what are the factors, including the policy considerations, relevant to the decision to be made in this respect?

4 The appellant has commenced proceedings against the respondent in the District Court in which she claims damages for personal injuries said to arise out of a motor vehicle collision on 25 February 1998. The appellant alleges that the collision was caused by the negligent driving by the respondent who, in his defence, has admitted negligence. The principal issues in the action are, therefore, whether the respondent's negligent driving caused the appellant to suffer injuries, what those injuries and consequential disabilities are, and the amount of damages to be awarded.

5 The trial was listed for six days to commence on 22 November 1999. On 10 November 1999 Groves DCJ granted an application by the respondent under O 36 r 4 and made orders granting the respondent leave to put in evidence, at the trial, videotape films ("the video film") taken of the appellant, and excusing the respondent from producing the video film

(Page 7)

to the appellant for inspection prior to the trial. At the same time, the learned Judge dismissed an application made by the appellant whereby she sought orders requiring the respondent to discover and produce the video film to her solicitors.

6 Thereafter, the appellant applied for leave to appeal against the orders made by Groves DCJ. On 22 November 1999, Scott J granted the appellant leave to appeal and, after an adjournment was granted to allow the appellant to amend her notice of appeal (to rely on an additional ground based on the allegation that the video film was privileged), the appeal was heard on 8 September 2000.

The issues in the District Court litigation and the claim for legal professional privilege

7 In her statement of claim, the appellant alleges that she sustained soft tissue injuries to the spine and right shoulder and further developed the condition known as dystonia, which affected the right side of her neck and shoulder. She asserts that in consequence she is permanently disabled. The statement of claim sets out several permanent disabilities. These include allegations that the appellant is restricted in movement on her right side, particularly her neck, shoulder, arm and fingers of the right hand. In addition, she asserts that she is unable to sit for extended periods without significant pain and discomfort, she is unable to lift her right arm above shoulder height and is unable to utilise her dominant right hand as there is significant loss of power. She asserts that she is unable to adopt forward postural positions without significant pain and discomfort. She is unable to drive as she cannot utilise her right arm and hand. She is unable to run or jog and has difficulty in walking for extended distances.

8 The appellant claims that she has suffered loss of future earning capacity as she will be unable to return to her previous employment as a receptionist/typist, or any employment involving the utilisation of the right arm and hand. She asserts that she will be restricted to work of a light nature, avoiding extensive bending, sitting or the utilisation of the right arm generally.

9 Initially, in his defence, the respondent pleaded a general denial to these allegations. The nature of the respondent's defence was made clearer on 30 July 1999 when in a "Concise Statement of Facts and Law" (filed pursuant to the District Court case management regime) the respondent stated that in addition to matters raised by the appellant's Concise Statement of Facts and Law the following matters were in issue:

(Page 8)

"(a) Whether the [appellant] suffered any injury at all in the motor vehicle accident of 25th February 1998;

(b) The [respondent] contends that the [appellant] has claimed symptoms from such accident which either she is not suffering from or which are not related to the accident of 25th February 1998 and further;

(c) The [respondent] denies that the [appellant] is suffering from spasm of the right shoulder and neck which has resulted in a prominent degree of elevation of the right shoulder and lateral flexion of the neck on the right side and the [respondent] says that the [appellant] has voluntarily assumed such a position and is not suffering from spasm nor has she developed a chronic fore quarter neuropathic pain syndrome with a secondary dystonic abnormality of the neck and right shoulder as such abnormality has been voluntarily assumed by her."

The respondent's Concise Statement of Facts and Law accordingly revealed a significant change in the nature of his case. It is not apparent from the evidence before this Court what precisely led to this change. It was only in October 1999 that the respondent's defence was amended to reflect the change.

10 The medical evidence contained in the expert reports exchanged by the respondent do not support the statement that the appellant has "voluntarily assumed" a particular physical position. It may be helpful to mention some of the relevant material in those reports.

11 In a report dated 28 July 1998, Dr Bell, a medical specialist retained by the respondent, expressed the opinion that certain of the appellant's symptoms related to previous accidents in which the appellant was involved (on 15 August 1984 and on 30 May 1988) and he stated that he could not find any other specific factors contributing to her symptoms. He did say, however, that he did not think that there were any discrepancies "in the subjective complaints and the objective findings". In a later report dated 8 June 1999 Dr Bell stated that the appellant has "a very unusual posture of neck and right shoulder" which was not present on the last occasion when he saw her. He said that the only satisfactory answer he could give as to the cause of this deformity was that it was a very rare complication, considered to have a substantial psychological basis.

(Page 9)

12 Dr Silbert, a neurologist, referred to various atypical symptoms displayed by the appellant and, in a report dated 23 June 1999, expressed the view that non-organic and psychological factors were present. Dr Silbert was unable to find any significant neurological cause for the appellant's symptoms. A further report dated 30 September 1999 by Dr Silbert was exchanged. This report does not depart in substance from his prior report.

13 Other reports filed by medical practitioners revealed that others, also, were not able to find any pathological reason for the appellant's symptoms. But, as Groves DCJ observed, there was "considerable dispute between the various medical specialists as to the exact nature and causation of the [appellant's] symptoms". None of the reports filed asserted that the appellant was malingering and none referred to any voluntary assumption of position by her.

14 On 13 September 1999, the appellant's solicitors wrote to the respondent's solicitors requesting them to advise "as to whether you or your client is in possession of any videotapes, photographs or any materials from surveillance of our client prior to 1991 and if so we consider this material to be discoverable pursuant to RSC Order 36 rule 4". The respondent's solicitors replied by letter dated 17 September 1999, stating, "by way of discovery" that they were in possession of "a quantity of videotape material" taken of the appellant subsequent to the issue of the writ. The solicitors claimed that the videotape material was privileged.

15 By letter dated 6 October 1999, the appellant's solicitors stated that the appellant had been questioned in some detail by Dr Stell and she gained the impression that he had either seen or had a discussion in relation to the existence of a video film. The appellant's solicitors conceded that the appellant might be incorrect in this regard but sought confirmation from the respondent. The respondent's solicitors have not replied to this request. In their letter of 6 October 1999, the appellant's solicitors requested the respondent's solicitors to file a formal supplementary affidavit of discovery "disclosing the existence of the videotape and the grounds upon which the privilege is claimed, in compliance with RSCOrder 36 rule 4". Also, by the letter of 6 October 1999, the appellant's solicitors informed the respondent's solicitor that 12 medical practitioners would be called by the appellant at the trial.

16 On 18 October 1999, the appellant amended her statement of claim by alleging that the collision of 25 February 1998 caused her to suffer

(Page 10)

from the condition of dystonia which affected the right side of her neck and shoulder.

17 On 22 October 1999, the respondent filed an amendment to his defence so as to make it consistent with the Concise Statement of Facts and Law dated 30 July 1999. The amendment pleaded that the appellant, "has voluntarily assumed a position of apparent spasms to the right side of her neck and shoulder and that such assumed position is not permanent and was not caused by the collision of 25 February 1998". It asserted further that if, which the respondent denied, the appellant was suffering or had suffered any permanent disability as alleged, such disability either pre-dated the accident caused by the respondent's negligence (and was caused by the accident which occurred on 15 August 1984 or arose subsequent to the latter accident) or was voluntarily assumed by the appellant prior to the collision of 25 February 1998.

18 On 27 October 1999, the appellant filed a chamber summons seeking an order that the respondent discover and produce the video film. On the same date, the respondent filed a chamber summons seeking orders pursuant to O 36 r 4 seeking leave to put in the evidence of the video film at the trial and excusing him from producing the video film to the appellant. In an affidavit filed in support of the respondent's application, the respondent's solicitor stated:

"Legal professional privilege is claimed in respect of the film which has been taken as it was taken at my request by investigators solely for the purpose of defending the [appellant's] claim in this matter for which liability has been admitted."

19 Also, on 27 October 1999, the respondent filed a supplementary affidavit of discovery (dated 25 October 1999). Attached to the discovery affidavit was a list of documents including documents that the respondent objected to produce on the ground that they were privileged. Documents falling into this category included documents said to have been prepared and obtained for the use of the defendant's solicitor "and which were intended to enable the [respondent's] solicitor to conduct this action and to advise the [respondent] in reference thereto". The documents in question were identified and included "videotaped material taken of the [applicant] (4) the earliest of which was obtained subsequent to the [respondent's] Certificate of Discovery filed on 6 January 1999".
(Page 11)

20 On 10 November 1999, Groves DCJ granted the orders sought by the respondent and dismissed the appellant's application for production of the video film.

21 The amendment to the defence had caused the appellant to consult a psychiatrist, Dr Skerritt, and on about 13 November 1999 the appellant provided the respondent with Dr Skerritt's report of that date. Dr Skerritt expressed the following opinion in that report:

"The apparent disagreement between my neurologist colleagues is between a dystonia of organic but obscure origin, and the condition known variously through the ages as hysteria or more recently, conversion reaction. This implies the conversion of psychic stress into physical symptoms, often neurological. Such a process often follows a traumatic event or circumstances and is reinforced by the response of the person's environment. The non-anatomical distribution of sensory loss is often held to be confirmation of this diagnosis. If Dr Silbert's view is correct, it does not exclude the existence of physical pathology. If it is the correct view, I believe that the reaction is still attributable to the accident of February 1998."

In consequence of Dr Skerritt's report, the appellant filed a minute of proposed re-amended statement of claim in which, amongst other things, the appellant sought to plead that in the collision of 25 February 1998 she suffered a number of other injuries not previously asserted in the pleadings. One was "an aggravation and re-emergence of symptoms of injuries to the right neck and shoulder which the [appellant] had suffered in previous motor accidents on 15 August 1984 and 30 May 1988 …". Another was that "a combination of the physical and psychological symptoms" produced a "conversion reaction" that increased and extended the physical symptoms previously identified.

22 These developments caused the respondent to apply to vacate the trial date to enable him to seek an alternative psychiatric opinion to that of Dr Skerritt. The respondent complained that he did not realise until Dr Skerritt's report that the appellant was alleging that she was suffering from a psychological condition or that she was saying that psychological factors might be contributing to her symptoms. For this reason, the respondent contended, he was taken by surprise by Dr Skerritt's report and needed an adjournment of the trial.

23 On 17 and 18 November 1999, the respondent's application was heard by Wisbey DCJ. It became apparent that the appellant, too, wished

(Page 12)

the trial date to be vacated as she wished to appeal against the decisions of Groves DCJ which had by then been delivered. Issues of costs arose and arguments were advanced on behalf of both parties.

24 In the course of argument the issue was raised as to whether the respondent was alleging that the appellant was making fraudulent claims. In this regard it is to be observed that the allegations in the respondent's amended defence do not clearly and unequivocally assert that the appellant was malingering or fraudulently pretending to have symptoms. In particular, it is not clear from the amended defence whether the alleged voluntary assumption of "position" by the appellant is caused by psychological factors or by a deliberate feigning. Whether or not the respondent was required to plead the deliberate feigning or malingering was not argued before us, and I shall not comment upon the issue. The position of the respondent in this respect was, however, made clear in an affidavit dated 16 November 1999 filed in support of his application and by his then counsel in the course of making submissions to Wisbey DCJ. In his affidavit, the respondent's solicitor stated, in effect, that while the respondent was maintaining that the appellant had not suffered any physical injury in the collision of 25 February 1998, he had not considered whether that collision had brought about psychological consequences, as these had not previously been alleged by the appellant. Counsel for the respondent explained that the respondent "doesn't say that the [appellant] is necessarily acting fraudulently, merely that she has some reason which is not associated with the physical symptoms she is suffering from to voluntarily assume this posture". Counsel repeated that, until Dr Skerritt's report was produced, the respondent had dealt with the case on the basis that the appellant had a physical disability only. Now, he said, he was faced with the "proposition that she was suffering from a conversion disorder".

25 Accordingly, counsel submitted, the respondent would have to investigate (presumably for the first time) whether the appellant was consciously and voluntarily feigning her symptoms, or whether she was subconsciously doing so, without any intention to exaggerate her disabilities. That is why the respondent needed to consult another psychiatrist. The respondent, thereafter, would have to decide whether to plead that the appellant was presenting a dishonest case. These needs underlay the respondent's desire for an adjournment.

26 The significant point that arises from all of this is that, at the time the applications came before Groves DCJ, the respondent was not going to trial on the basis that he was asserting that the appellant was malingering

(Page 13)

or presenting a fraudulent claim. This has considerable significance to that part of the appeal that challenges the way in which Groves DCJ exercised his discretion under O 36 r 4.

The basis of the decision of the chambers' Judge

27 It is important to appreciate that, in the proceedings before Groves DCJ, senior counsel then representing the appellant accepted that the video film was subject to legal professional privilege. Further, he did not argue that the privilege had been waived. The sole issue before the learned Judge was how he was to exercise his discretion under O 36 r 4.

28 Groves DCJ referred to the opinion of Dr Silbert that there was no objective pathology to explain the appellant's complaints. His Honour observed that the medical assessment of necessity would be made on the basis of "the subjective presentation of the patient". These matters appeared to have overriding importance for the learned Judge. His Honour stated:

"It may be, as is the case here, on one view at least, that clinical findings do not support the incapacity and disability of which the plaintiff complains. That is, a plaintiff may be feigning or exaggerating a condition to enhance a claim. That type of issue is raised fairly and squarely on the amended defence in that the [respondent] denies that the [appellant] is suffering from a condition of [d]ystonia and says that the [appellant] has voluntarily assumed a condition. In those circumstances the credibility of the [appellant] may be the only forensic aid to the trial Judge in determining the issue. There have been many cases in this Court where a trial Judge has not accepted a plaintiff's evidence where it has been brought into question by what is captured on a surveillance film … A defendant's counsel must necessarily exercise some discretion in such circumstances as to whether or not to disclose the content of a surveillance video before trial. … Where after making that assessment counsel does not consider that the footage would encourage a settlement, as is the case here … then the issue will be left for the trial Judge to determine. To deny the trial Judge the opportunity of assessing the credibility of the [appellant] in the usual court room way would, in my opinion, be giving way to expediency rather than having regard to the interests of justice."

(Page 14)

29 Groves DCJ referred to reasons he had given in Liszka v Castledine, (1999) 21 SR (WA) 194 repeated the following remarks that he had there expressed:

"In Strowse v Hales Precision Metal Products Pty Ltd (supra) L A Jackson DCJ observed that 'it is not always the case that a surveillance video film shows a plaintiff exhibiting physical signs inconsistent with his or her claim.' Inconsistencies may well be capable of explanation but in my view the appropriate time for that to be done is in the course of the trial process. At p9 the judge stated:

'If the surveillance video of the plaintiff shows him doing things that are different from what he claims he can do, why is it unfair or prejudicial to withhold that from him. The plaintiff knows what he can do and knows if he has misrepresented his physical capabilities. He can tell his legal and medical advisers what his physical abilities are. If he is prejudiced because he has failed to properly and accurately advise them then that is not a prejudice from which the law should give protection. In my view it is not unfair to such a plaintiff to withhold a view of the surveillance video until his or her cross-examination at trial.' "

The learned Judge proceeded:

"If the plaintiff is able to view the videotape before trial then there is the opportunity for him to tailor his evidence if necessary. That is not to say that he will but there nevertheless remains that possibility. Surveillance video provides a means by which a defendant can test the veracity of the plaintiff's evidence insofar as claimed disabilities are concerned. The video of course provides actual visual images and whilst there may be explanations for certain conduct captured on the video they leave little doubt about the activities which the video records. The activities observed by the investigator will be the subject of oral evidence. Whereas the accuracy of the investigator's recollection of observations could be put to question the video film in effect tells the story. The video is a narrative form of evidence. To that extent technology aids the trier of fact in determining where the truth lies.

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If the interests of justice are to prevail, that is if the Court is to make a fully informed assessment as to the plaintiff's claimed disabilities and physical limitations, then a defendant should not be deprived of the opportunity to legitimately put the credibility of the plaintiff to the test by proper and appropriate means available.

What is in the interests of justice is that there be fairness as between the parties in the litigation process. It would be unfair to a defendant to require it to disclose its case against a plaintiff where a plaintiff can thereby be advantaged to the detriment of the defendant. I concur in that with the views expressed in Strowse v Hales Precision Metal Products Pty Ltd (supra).

It is argued that the 'cards on the table' approach may assist in the pre-trial conference endeavours to effect a settlement of the action. I am not of the view that reason outweighs the attainment of justice insofar as the forensic challenge by trial is concerned. In fact the converse might just as well be true in that a plaintiff may have the concern that activities undertaken by him which he alleges or has said to his medical advisers he cannot do are or have been captured on video surveillance. That concern should be sufficient to encourage the plaintiff to settle at the pre-trial conference stage just as much as if he were to be aware of what was on the video surveillance film."

30 Groves DCJ referred to the following observations of Dawson, Gaudron and McHugh JJ in Queensland v JL Holdings Pty Ltd (1997) 189 CLR 146 (at 154):

"Case management is not an end in itself. It is an important and useful aid for ensuring the prompt and efficient disposal of litigation. But it ought always to be borne in mind, even in changing times, that the ultimate aim of a court is the attainment of justice and no principle of case management can be allowed to supplant that aim."

And stated:

"It is trite to say that the purpose of case flow management includes the reduction of surprise, the facilitation of mediation and the curtailment of the length and expense of trials. However the purpose is always subject to the overriding discretion of the judge and what in each case is to be regarded

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as being in the interests of justice. That is reflected in the Supreme Court Practice Direction No 4 of 1995 (5 October 1995) dealing with witness statements. The existence of credibility disputes will be a factor borne in mind in the exercise of the judge's discretion in ordering the exchange of witness statements. Where video surveillance films have the capacity to reflect upon the credibility or otherwise of the plaintiff then the same considerations must apply in determining whether or not the content of the video should be disclosed prior to trial."

Groves DCJ concluded in this respect:

"The use of surveillance video for [the purpose of assessing the witness' credibility] is a legitimate forensic tool in assisting the trial Judge in making that assessment of credibility. Thus it is in such circumstances where case management gives way to the attainment of justice."

Finally, his Honour observed:

"The remaining issue so far as the [applicant's] opposition to the application is concerned is that there is the risks (sic) of an adjournment of the trial unless the plaintiff is able to view the video before trial. On that issue I adopt the reasoning of Barlow DCJ in Lloyd v Centurion Roller Shutters Pty Ltd 10 SR (WA) 202 and Blaxell DCJ in Robinson v Patrick Stevedoring (WA) Pty Ltd 10 SR (WA) 236. In the latter case his Honour observed at pp238-9:

'In the circumstances I do not believe it would be unduly unfair to the plaintiff to deny him access to the videos prior to trial. If it turns out that there is material in the videos which can only be answered by further evidence not readily available then the trial judge will have a discretion to order an adjournment at the cost of the defendant.' "
The learned Judge adopted this approach.

The appellant's grounds of appeal

31 In challenging the decisions made by Groves DCJ the appellant advanced four principal arguments. These were:

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(i) The video film was not the subject of legal professional privilege as claimed by the respondent (and originally conceded by the appellant);

(ii) If the video film was the subject of legal professional privilege, that privilege was waived by the respondent when he first formed the intention to seek to tender the video film at trial, or on the respondent's declaration that he would seek to tender the video film at trial;

(iii) Legal professional privilege is not inviolable and, in the circumstances of the case, as a matter of discretion, the video film should be disclosed otherwise gross unfairness would result; and

(iv) In making the orders that he did, Groves DCJ erred in the exercise of his discretion.

Legal professional privilege

32 As I have mentioned, despite the concession made on the appellant's behalf before Groves DCJ that the video film was subject to legal professional privilege, the appellant was given leave to raise a ground of appeal based on such privilege and the appeal was adjourned to enable the respondent to prepare adequately for argument on this issue. When the appeal was resumed, counsel for the appellant conceded that the video film was taken purely for the purpose of getting up the respondent's case and that the film was obtained by the respondent's solicitor from an agent of the solicitor on instructions from the respondent himself.

33 During the hearing before Groves DCJ it was common cause between the parties that the video film was a "document" as defined by O 26 r 1A. This rule defines a document as:

"[A]ny record of information and includes -

(a) …

(b) any film, negative, disc, tape or other device in which one or more visual images,

are embodied so as to be capable, with or without the aid of some other device, of being reproduced therefrom."

As such, the video film was subject to discovery under O 26. In his outline of submissions, counsel for the respondent also accepted that the video film was a photograph but, during the course of argument,

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submitted that it was open to the Court to find that it was not. In the circumstances, I would deal with the matter on the basis that the video film material constitutes a document or documents. In any event, I would regard the video film as being a document as defined by O 26 r 1A.

34 At the outset, I should say that counsel for the respondent disavowed reliance on the so-called "own case" privilege: Donaldson v Harris [1973] 4 SASR 299; Smith's Weekly Publishing Co Ltd v Sunday Times Newspaper Co Ltd (1923) 31 CLR 552. There appeared to be two reasons for this approach. Firstly, the video film was listed in the respondent's discovery affidavit and privilege was claimed for it on the grounds of legal professional privilege and not on the basis that the film related solely to the respondent's case and contained nothing that would assist the appellant's case. Secondly, as counsel quite properly put it, video films "often … go to both credit and fact" and, by inference, the video material in this case falls into the same category. In any event, having regard to the recent pronouncements of the High Court as to the true purpose and ambit of legal professional privilege, it is open to serious question whether such a head of privilege continues to exist.

35 The general rule is that "legal professional privilege" (or client legal privilege) protects the confidentiality of certain communications made in connection with giving or obtaining legal advice or the provision of legal services, including representation in proceedings in a court. (Per Gleeson CJ, Gaudron and Gummow JJ in Esso Australia Resources Ltd v Federal Commissioner of Taxation (1999) 168 ALR 123 (at 132); Commissioner of Australian Federal Police v Propend Finance Pty Ltd (1997) 188 CLR 501 (at 543, 550, 564 and 583).

36 Counsel for the appellant submitted that the video film was not a communication, and hence was not subject to legal professional privilege. In Commissioner of Australian Federal Police v Propend Finance Pty Ltd there are dicta to the effect that documents obtained at the instance of a party's lawyer for the purpose of contemplated or pending litigation are to be regarded as communications. Gaudron J observed (at 544) that:

"[A] document which is brought into existence solely for the purpose of obtaining legal advice or solely for use in litigation and which is then provided to a lawyer for that purpose is, itself, a communication with the lawyer and, … a privileged communication. Equally, a copy of a document made solely for the purpose of obtaining legal advice or solely for use in legal proceedings is, when provided to a lawyer for that purpose, a communication to the lawyer."

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McHugh J (at 553) expressed similar views. His Honour referred with obvious approval to The Palermo (1883) 9 PD 6 where the Court of Appeal upheld a decision refusing the discovery of depositions made in other proceedings which the plaintiffs had "obtained for the purposes of this action, and as the phrase is, 'to form part of the brief' ". The depositions were to be regarded as having been obtained by way of communications and were subject to privilege in the hands of the plaintiffs. Gummow J (at 568), in observing that "the subject matter of the privilege is communications made solely for a particular purpose," referred to and approved the identification of the rule expressed by Jacobs J in Grant v Downs (1976) 135 CLR 674 (at 690) as follows:

"[C]ommunications with one's legal adviser are privileged from disclosure and … that privilege extends not only to communications actually made but to material prepared for the purpose of communication thereof to the legal adviser."

Hence, a witness statement or other material furnished by a witness to a solicitor to assist the latter in contemplated litigation is privileged.

37 On this basis, it seems to me, the provision of the video film by the photographer to the respondent's solicitors must result in the film being regarded as a communication. Having regard to the way in which the film was brought into being and given by the photographer to the solicitors, it must follow from the statements made by Gaudron, McHugh and Gummow JJ, to which I have referred, that the submission that the film was not a communication cannot be upheld.

38 In any event, there is a considerable body of authority that litigation privilege (being a division, as it were, of legal professional privilege) continues to exist. Litigation privilege, so-called, does not depend on information being "communicated". For example, notes on cross-examination by counsel, that are always retained in the possession of counsel and never imparted to anyone else, remain subject to privilege. In Attorney General (NT) v Maurice (1986) 161 CLR 475 (at 490), Deane J explained the basis of this head of privilege when he said that it was "a substantive general principle of the common law" that, subject to defined qualifications and exceptions, a person is entitled to preserve the confidentiality of materials brought into existence "for the sole purpose of preparing for existing or contemplated judicial or quasi-judicial proceedings". Similar observations were made in Baker v Campbell (1983) 153 CLR 52 (at 108) by Brennan J, who recognised that privilege attached to documents "brought into existence" by or on behalf of a party to litigation for the sole purpose of use in litigation, whether present or

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reasonably anticipated. Remarks to similar effect were made in Commissioner of Australian Federal Police v Propend Finance Pty Ltd (at 508 and 533). See also Southern Equities Corporation Ltd v WA Government Holdings Ltd (1993) 10 WAR 1 where Seaman J (with whose reasons Malcolm CJ and White J agreed) accepted (at 16 - 17) that litigation privilege continues to exist and referred in this regard to the joint judgment of Stephen, Mason and Murphy JJ in Grant v Downs (at 682). It was held in Southern Equities Corporation Ltd that privilege attaches to investigations undertaken by a party's lawyer for use in litigation. Malcolm CJ observed (at 4):

"Evidence obtained for the purposes of litigation, whether in the form of an unsigned proof of evidence, a signed proof of evidence, or a sworn affidavit, is privileged from disclosure or inspection."

The learned Chief Justice noted that nothing limits the operation of the privilege, which applies to evidence obtained and documents brought into existence for the purpose of litigation.

39 In the circumstances, I do not accept the appellant's arguments based on the proposition that, merely because it is not a communication, the video film is not privileged. As I have explained, I have come to the conclusion that the film is a communication, and - even if it is not - it is privileged.

40 Counsel for the appellant submitted further that the video film is not privileged as it was not made, communicated or held with the sufficient degree of confidentiality. I do not accept this argument either. It is accepted by the appellant that the photographer was retained by the respondent's solicitor for the express purpose of taking surveillance video film of the appellant. It is obvious that the film was taken secretly. It is also obvious that it was always intended to be kept confidential for use in evidence at the trial. In these circumstances, I am satisfied that the requisite degree of confidentiality exists.

41 Counsel for the appellant submitted that the general rules concerning legal professional privilege do not apply to "real evidence", and the video film was "real evidence". He relied on remarks made by French J in J-Corp Limited v Australian Builders Labourers Federated Union of Workers (WA Branch) [No 1] (1992) 38 FCR 452 (at 457). His Honour was there dealing with videotapes of events which were critical to the issues in question in that case and said that he saw no reason to extend legal professional privilege to them. He said:

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"The videotapes have, it may be accepted, been brought into existence for the sole purpose of possible litigation. They are in one sense analogous to witness statements. But they are more than that. They are real evidence of events which occurred in public. They were not taken in circumstances to which any confidentiality attached. To attach legal professional privilege to these materials would be to accord excessive respect to the adversarial aspects of litigation and insufficient weight to the objective of determining in litigation the facts in issue. To allow inspection of these materials, in my opinion, infringes no public interest and no established category of privilege."

42 There is Canadian authority, at single instance level, which adopts a similar approach. In Cormier v Le Blanc (1993) 135 NBR (2d) 75 (at 80) it was said that privilege does not attach to "documents such as photographs or videotapes which constitute material evidence". That decision was not followed by the New Brunswick Court of Appeal in Main v Goodine (1997) 192 NBR (2d) 230, the basis of the decision being simply that the videotapes were prepared for the dominant purpose of being submitted to the respondent's solicitor for his use in the litigation. In Chmara v Nguyen [1993] 6 WWR 286 the Manitoba Court of Appeal came to a similar conclusion: see also Ceci v Bonk (1992) 89 DLR (4th) 444, a decision of the Ontario Court of Appeal.

43 In my view, the description "real evidence" does not, with respect, assist in determining whether or not the video film is privileged. What, in truth, is meant by the term "real evidence"? It seems to me that there can be only two possible arguments raised for distinguishing the video film from ordinary witness statements.

44 The first is that at the trial on production, identification and proof of the video film by the photographer, the film will stand as proof of the truth of its contents. But that fact cannot be a ground for destroying the privilege that might otherwise attach to the film. Take, for example, a statement signed by a witness and given by him to a party's solicitor for use in pending litigation. The mere fact that that statement might be admissible in evidence to prove the truth of its contents (under s 79C of the Evidence Act 1906) cannot in any way detract from the privilege that (subject to any waiver that may be effected) otherwise attaches to it.

45 The second is that the video film is real evidence because it contains images of what in fact occurred. This is to be contrasted with the oral or written testimony by a witness who describes the events he or she has

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observed. Again, in my view, such a distinction is unhelpful. Take a case where the identity of a driver of a motor vehicle is in issue. Assume that the driver was seen by a skilled artist who did not know the man but made a drawing of him. If the artist made a statement to the solicitor of a party to the litigation and attached the drawing, that drawing would constitute a document prepared solely for use in contemplated litigation and communicated by the witness to the solicitor. The drawing, being the image of the driver, would undoubtedly be privileged. In my opinion, there is no difference in principle between the drawing and the video film. In the drawing, the image is portrayed by the hand of an artist. In the case of a video film, the image is captured on the film by the photographer. In each instance the probity of the material depends upon the skill and integrity of the witness seeking to prove the validity of the images in question and their accuracy. It is common knowledge, these days, that videotapes can be altered, or taken in such a way as to distort or alter reality.

46 Accordingly, I would not follow the reasoning in J-Corp Limited v Australian Builders Labourers Federated Union of Workers (Western Australian Branch) (No 1). In my view, the ordinary rules of privilege attach to video film and there is no basis in law to distinguish it.

47 Finally, on this issue, counsel for the appellant submitted, as I understood him, that even if the video film was privileged this Court had the discretionary power to compel the respondent to disclose them. That is, on the basis that otherwise serious injustice would occur. He referred to various Canadian authorities in this regard. The Canadian decisions in question, however, depend for their resolution on local statutory provisions and I do not regard them as being presently relevant. It is now undoubtedly the law in Australia that "legal professional privilege is a substantive general principle which plays an important role in the effective and efficient administration of justice by the courts" (per Deane, Dawson and Gaudron JJ in Goldberg v Ng (1995) 185 CLR 83 (at 94); see also Commissioner of Australian Federal Police v Propend Finance Pty Ltd). The paramountcy of legal professional privilege is demonstrated by the fact that even where privileged information, given to a solicitor, would be relevant in establishing whether a person charged with murder was innocent, that information will remain protected: R v Derby Magistrates' Court, Ex p B, [1996] 1 AC 487; see also Carter v Managing Partner, Northmore Davy & Leake (1995) 183 CLR 121. In my view there is no substance in this particular submission.

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Waiver of privilege

48 I now turn to the question of waiver. This issue is complicated by the fact that, at the hearing before Groves DCJ, the appellant, as I have explained, accepted that the video film material was privileged and, further, did not contend that privilege had been waived. Therefore his Honour was not required to deal with the question.

49 According to the appellant, privilege was waived not later than 27 October 1999, that being the date of the respondent's chamber summons seeking leave to put the video film in evidence at trial without prior disclosure to the appellant.

50 In Attorney General for the Northern Territory v Maurice Mason and Brennan JJ said (at 488):

"A litigant can of course waive his privilege directly through intentionally disclosing protected material. He can also lose that protection through a waiver by implication. An implied waiver occurs when, by reason of some conduct on the privilege holder's part, it becomes unfair to maintain the privilege. The holder of the privilege should not be able to abuse it by using it to create an inaccurate perception of the protected communication. Professor Wigmore explains:

'[W]hen his conduct touches a certain point of disclosure, fairness requires that his privilege shall cease whether he intended that result or not. He cannot be allowed, after disclosing as much as he pleases, to withhold the remainder.' (Wigmore, Evidence in Trials at Common Law (1961), vol 8, par 2327, p 36.)

…

Hence, the implied waiver inquiry is at bottom focussed on the fairness of imputing such a waiver." (See also Deane J (at 492 - 493))

51 Counsel for the appellant submitted that, before the District Court trial commenced, the legal advisers of the respondent had decided to tender the video film evidence at trial. Counsel for the respondent, however, informed this Court from the bar table that no person on behalf of the respondent had made such a decision. He said that the only decision, made by the respondent in relation to this issue, was that he

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should seek leave under O 36 r 4 in case he should decide during the trial to use the video film material.

52 As the questions of privilege and waiver were not raised by the appellant at the trial, the respondent had no opportunity of putting forward his evidence in regard to waiver. As waiver must depend on all the relevant factual circumstances, I think it would be unfair in these proceedings to decide whether the respondent waived privilege. I accept that, on the strength of Attorney General for the Northern Territory v Maurice, the test for imputed waiver is objective, and I accept that the subjective state of mind of the respondent's legal advisers may not be conclusive, but all the relevant facts are not before the Court and the way in which the matter was dealt with below precludes this Court, in my opinion, from resolving this issue. I would therefore not uphold the appellant's submissions in this regard.

The exercise of discretion under O 36 r 4

The potential for plaintiffs giving dishonest evidence

53 According to Groves DCJ, the appellant might be feigning or exaggerating a condition to enhance her claim. His Honour said that this was "raised fairly and squarely on the amended defence", but the defence is not clear on this aspect and, as I have explained, the respondent has made it plain that he was not alleging that the appellant was malingering or consciously presenting a fraudulent claim. The respondent was merely alleging that the appellant was not suffering from a physical disability.

54 Basic to his Honour's approach is the proposition that the opinions of the medical practitioners are dependent on the veracity of the appellant and, even though no allegation of malingering is made on the pleadings, it is essential for the doing of justice to allow the respondent to take the appellant and her doctors by surprise by confronting them in cross-examination by the video film that they had not previously seen. Underlying this attitude is that plaintiffs sometimes lie, and are dishonest, thus it would be unjust to allow them to see the video material and so be able to tailor their evidence to the images on film.

55 Counsel for the respondent has provided this Court with many judgments of the District Court from which it is plain that his Honour's approach is applied almost uniformly in that court. I regret to say that I consider this approach and the reasoning on which it is based to be erroneous and likely in many instances to give rise to injustice.

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56 Historically, it is virtually identical to the approach of the common law in the mid-nineteenth century which refused to follow the practice of equity and permit discovery of documents in the form that we have known since the Judicature Acts. According to J H Wigmore, Wigmore on Evidence, Vol VI, 3rd ed, 1940 (at 376), the objection of the common law to ordinary discovery derived from the belief that "the concealment of one's evidential resources and the preservation of the opponent's defenceless ignorance was a fair and irreproachable accompaniment of the game of litigation". Also, as Wells J points out in Donaldson v Harris (at 302):

"A further practical reason for the common law's virtual prohibition of discovery lay in the possibilities of abuse by unscrupulous opponents."

Since the Judicature Acts, however, discovery of documents has been the norm and is a practice that is firmly entrenched. The policies underlying the old common law approach, based on a pessimistic view of the standards of honesty of litigating parties, have been shown to merit no place in a modern system of administration of justice. It is generally accepted that the truth-finding process has benefited significantly by the discovery process, and the notion that pre-trial disclosure would inevitably facilitate the giving of false evidence by dishonest witnesses has long since been discredited by practical experience.

57 In Commissioner of Australian Federal Police v Propend Finance Pty Ltd Kirby J observed (at 581):

"Increasingly, in recent years, including, to some extent, in criminal proceedings, the Australian legal system has moved away from trial by ambush."

The trend throughout the common law world is for greater disclosure and an open trial system. More and more jurisdictions require the exchange of witness statements prior to trial. That is indeed the case in trials before this Court. I do not accept that there is any difference between personal injuries litigation and commercial and other kinds of litigation that fall within the jurisdiction of this Court, warranting a different kind of treatment for the former.

58 Witnesses nowadays are generally prepared for their task of giving evidence by being shown the relevant discovered documents. It is recognised that human memory is such that many witnesses need time to absorb extrinsic material that is relevant to their versions of events. For

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witnesses to give evidence that is as accurate as possible, they need to refresh their memories by reference to contemporaneous material. A proper professional approach to the preparation of witnesses often requires many hours to be devoted to this task. To confront witnesses by surprise by material of this kind is generally accepted to be unfair and capable of resulting in distorted and inaccurate testimony. Honest witnesses often become flustered when unexpectedly shown documents of which they are unaware: see generally in this regard Craig v Troy, unreported; SCt of WA; Library No 950067; 24 February 1995. This is one of the reasons why late discovery can lead to adjournments of trials. There is no reason to apply different rules and attach different consequences to the use of video films.

59 I should not leave this topic without referring to the remarks of Mathews J in Re Taxation Appeals NT 94/281-291 (1995) 30 ATR 1279. Her Honour was dealing with whether an applicant should have access to documents which would give warning of adverse material on which cross-examination on credit would be based. The learned Judge (at 280) said:

"The overriding consideration in all these situations is that of procedural fairness. Would a party be so impeded in the presentation of its own case and in the challenging of its opponent's case that fairness dictates that relevant material be withhold from the opponent? The situations in which this question were to receive an affirmative answer would, in my view, be rare indeed. It would certainly not be sufficient for a party merely to show that the material was capable of contradicting another party's version, even accepting that the credibility of that other party was critical to the case.

I should also say that it would be very unfortunate indeed if any rule of practice or procedure were to be developed within the Tribunal which assumed that witnesses before the Tribunal, whether they be parties or otherwise, were likely to lie upon their oath and to temper their evidence according to their knowledge of the material which was available to their opponents. It is important to maintain the distinction between safeguards designed to ensure that parties before the Tribunal are given the opportunity to present their cases fully and fairly, and devices which are designed to trap and expose unwary witnesses."

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I would, with respect, endorse these observations. It does seem to me to be a fundamental difficulty with the general approach manifest from the decisions to which we have been referred that a practice has developed based on the assumption that plaintiffs before the District Court are likely to "lie upon their oath and to temper their evidence according to their knowledge of the material which was available to their opponents".

60 In my view, in determining an application under O 36 r 4, the court should be biased towards disclosure, subject to there being persuasive grounds by reason of the particular circumstances of the individual case to make an order in terms of the rule. In my view, Groves DCJ erred in not adopting this approach.

Potential for unfairness to the respondent, alone

61 A further objection to the general approach manifest from the decision of Groves DCJ is that it focuses only on potential unfairness to a defendant and ignores potential unfairness to a plaintiff. This was emphasised in Brown v Metro Meat International Ltd [2000] WASCA 123, an appeal from a decision of a Compensation Magistrate who had overturned a decision by a review officer requiring the respondent to produce a video film taken of the appellant before the workers' compensation hearing. Wheeler J (with whom Kennedy and Parker JJ agreed) pointed out that it is wrong to consider only the aspect of unfairness that would result if a forensic advantage were to be given to a malingerer in viewing the video evidence before he or she gives evidence. Her Honour said at [21] - [22]:

"It must be remembered that the question of whether the worker is untruthful and a malingerer is the very issue which the litigation (or under the Act, the application) is designed to determine. Questions of fairness in allowing access to videotaped material cannot then be determined by assuming that only one answer to that question is possible.

If one assumes, on the contrary, that the worker is not untruthful and is not a malingerer, then he or she may suffer in some cases significant disadvantage from lack of access to the videotaped material. At the very least, an adjournment to allow the worker and/or the worker's medical advisers to view the videotape partway through the hearing, will result in delay and increased cost. Further, depending upon the nature of the disability which the worker alleges and the nature of the activities shown on the

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videotape, the worker may be able to give or call evidence which explains the activities carried out on the video; perhaps they were undertaken at a time after certain treatment had been undertaken, or perhaps they were followed by particularly severe renewed symptoms, for example. Generally, this difficulty will be able to be cured by adjournment, but on occasions it may not (if, for example, delay in making the video available means that evidence is lost or memories faded). It may be on occasion that medical advisers of the worker, particularly if assisted by comments or explanation from the worker, will form a view of the videotaped material different from that of the experts to whom the film has been shown by the employer or insurer. The worker will be disadvantaged if that material is not able to be put to the employer/insurer's witnesses during cross-examination. Such disadvantage is particularly likely during the course of litigation involving personal injury, where medical witnesses are generally called in a sequence which is convenient to them. Making the videotape available to the appellant only at a hearing would be likely, therefore, not only to require an adjournment, but also to require the respondent's medical practitioners to revisit the appellant's condition a considerable time after they had last seen her, and to review videotapes which they may (as Professor Cohen indicated in this case) be unwilling to view again."

In my view, Groves DCJ erred in not adopting the approach manifest from Brown v Metro Meat International Ltd and in taking a one-sided view regarding the potential prejudice that might arise if the video film were to be produced.

The appellant had already committed herself as to the nature and extent of her disabilities

62 Additionally, I consider that Groves DCJ erred, with respect, in failing to take account of the fact that the appellant had already committed herself in the pleadings and in statements to the medical witnesses as to the nature and extent of her disabilities. This was an aspect referred to by Wheeler J in Brown v Metro Meat International Ltd. Her Honour noted (at [24]):

"[A] worker will generally have committed to at least some facts both in documentation associated with a claim and in discussions with medical experts, and the degree to which this is

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so will perhaps be a relevant factor. To the extent that those considerations are applicable, it appears to me that the Compensation Magistrate failed to consider what prejudice might flow to the appellant from non-disclosure of the videotape material, so as to take that relevant consideration into account."

63 The observations of her Honour apply a fortiori to the situation in the District Court. In that court, unlike the Compensation Magistrates' Court, there are pleadings in which a plaintiff is required to commit herself to the case that she intends to make. This the appellant has done in her statement of claim. In addition, the appellant has advised many doctors of the nature of her symptoms and they have reported on this in medical reports, which have been disclosed to both parties. In these circumstances, if the video film reveals that the appellant has been lying about her disabilities, it will be very easy for the respondent to prove this. There is no foundation, in my opinion, for the suggestion that, if the appellant is indeed malingering, she will be able to avoid the consequences of the video film (which may tend to establish this).

The "cards on the table" approach

64 Even prior to Practice Direction No 4 of 1995 in regard to witness statements, the practice had developed in this Court of requiring the parties to exchange written non-expert witness statements. That practice has since been applied ever since and it is only in the most exceptional circumstances that it is not adopted. The "cards on table" approach has, for several years, generally been the policy of this Court: see Johnson v American Home Assurance Co, unreported, SCt of WA; Library No 940599; 28 October 1994, per Master Adams.

65 A similar policy has been adopted in England. In Mercer v Chief Constable of the Lancashire Constabulary [1991] 1 WLR 367, the Court of Appeal dealt with an appeal from Steyn J who observed that it was "now common practice" to order an exchange of witness statements even in fraud cases. There was acceptance that the mere fact that credibility was in issue was no good reason why such an order should be made. Lord Donaldson MR (at 373) expressed his complete agreement with Steyn J.

66 In Digby v Essex County Council [1994] PIQR P53, CA (at 57) (referred to in Khan v Armaguard Ltd [1994] 1 WLR 1204 (at 1209)) Simon Brown LJ said:

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"Over recent years there has been increasing recognition of the benefits of making the fullest disclosure before trial; disclosure not merely of the issues raised but of the evidence. That is true equally of the court's civil jurisdiction as of its criminal jurisdiction. It is exemplified by the relatively recent provisions for the automatic exchange of witness statements. Turning to the present case, it is well recognised that the great majority of personal injury cases settle. That of itself is highly desirable and it must be in the public interest to encourage such an approach. The problems of acceding to a defendant's application to withhold material such as the video recording here are obvious. Such an order must inevitably give the defendant a powerful negotiation advantage. The plaintiff's advisers will be unable to value his case properly and confidently and advise him fully upon the advantages of settlement and the risks of litigation, fearful as they would always be that there was some skeleton in their client's cupboard, more troubling than he, for his part, was prepared to recognise. That is one of the countervailing considerations in favour of a policy of general disclosure. But in my judgment, even with regard to those personal injury claims, public policy generally commands a practice of cards on the table."

His Lordship concluded (at 58):

"Save, therefore, in cases where malingering is clearly and categorically advanced as the basis for a non-disclosure order and where there can be demonstrated a plain risk of a plaintiff doctoring his evidence, that risk sufficiently outweighs, the countervailing consideration which I have sought, at least in part, to indicate that in my judgment that there should be only the rarest orders permitting non-disclosure."

67 In Khan v Armaguard Ltd, the court was concerned with the application of the English O 38 r 5, which is similar to O 36 r 4. Order 38 r 5 (unlike O 36 r 4) does require "special reasons" to be shown to the court before the court "otherwise orders" in terms of the rule, but the general policy adopted by the Court of Appeal in Khan v Armaguard Ltd (at 1209)) was not dependant on this distinction. Rose LJ (with whom Steyn LJ and Sir Thomas Bingham MR agreed) referred to the "cards on the table" practice that had developed "very considerably" in the Queens Bench Division (as it has in this Court) and said (at 1211):

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"The 'cards on the table' approach which now operates in my view requires that it should be very rare indeed in a personal injury case for an order for non-disclosure of a video film to be made. That in my judgment is an approach which is consistent with the tenor of the judgments of Sir Thomas Bingham MR and Simon Brown LJ in Digby's case [Digby v Essex County Council [1994] PIQR P53, CA] it is, as it seems to me, in the interests of the parties, the legal aid fund, and the efficient dispatch of business by the courts, that cases should be disposed of by settlement at an early stage. Almost always, in my view, this should mean that disclosure of video films of the kind presently under consideration should be made, even in cases where the defendants' case is that the plaintiff is a malingerer.

It seems to me that the fundamental point at which [counsel for the respondents - the defendants in the action] breaks down is this. He submits that it is only in cases where there is clear film evidence to support malingering and lack of bona fides that disclosure should not take place: but it is in precisely those cases that the possibility of the plaintiff trimming his evidence is most remote."

68 I agree entirely with these observations. Where a plaintiff is malingering and has feigned or contrived his symptoms, pleaded them in detail and told the expert witnesses about them, then "the possibility of the plaintiff trimming his evidence is most remote". Any cross-examiner worthy of the art will expose lying in such a case. That is what the adversarial system is all about.

The appellant "knows what she can do" and therefore there is no prejudice

69 Groves DCJ adopted the reasoning that the appellant knows what she can do and knows if she has misrepresented her physical capabilities. If she is prejudiced because she has failed to properly and accurately advise her legal advisers then that is not a prejudice from which the law should give protection. It is not unfair to such a plaintiff to withhold a view of the surveillance video until her cross-examination at trial.

70 In my view, that reasoning, with respect, is erroneous, as was demonstrated in Brown v Metro Meat International Ltd, where Wheeler J observed (at [23]):

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"[D]isclosure of the videotaped material allows the worker and his or her advisers to consider the possibility of settlement without the spectre of some action which is forgotten or able to be innocently explained being produced at trial in a manner which has a disproportionate impact. It is not an answer to this last contention that the worker 'must know what she/he did', since very few individuals can recall every action undertaken over the period which usually precedes litigation of this kind …"

Case management and related considerations

71 In my view, the passage quoted by the Groves DCJ from Queensland v JL Holdings Pty Ltd must be seen in context. In that case the learned Judge, who was managing the proceedings, refused leave to add a defence, which, though arguable, was likely to result in the vacation of the date which had been fixed for the trial six months ahead. Her Honour considered that maintaining that date was a more pressing consideration than a party's right to present a further defence. Dawson, Gaudron and McHugh JJ (at 154) pointed out that:

"It is not apparent that any complex issues of fact are raised by the amendments sought, but even if they are, in a hearing that is estimated to last some four months, they must surely be able to be accommodated."

Their Honours concluded that there was nothing to indicate that costs would not have been an adequate remedy for prejudice caused by the amendment sought. Thus, the case management principles applied by the learned Judge contributed nothing to the administration of justice. There would be no waste of court time, no witnesses would be inconvenienced, the plaintiff would not be prejudiced and costs were an adequate remedy. It is in that context that their Honours observed that "the ultimate aim of a court is the attainment of justice and no principle of case management can be allowed to supplant that aim".

72 But there are instances when principles of case management are highly relevant to the attainment of justice and I do not think, with respect, that their Honours intended by their remarks in Queensland v JL Holdings Pty Ltd to indicate that in those circumstances case management principles were to be ignored.
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73 The present case is a good example of case management principles being relevant to the attainment of justice. The trial itself had been set down for six days. The appellant wished to call from 9 to 12 specialist medical practitioners to give expert testimony. The respondent intended to call about three medical practitioners. There was every chance, therefore, that were the video film withheld from production until the appellant was cross-examined, the trial would have to be adjourned. Undoubtedly, the appellant's medical advisers would want to view the video film themselves and discuss it with the appellant. The injustice to the appellant, who potentially has a significant claim for damages, in being forced to vacate the imminent trial date is self-evident. There is also the obvious inconvenience and waste of time to some 12 to 15 medical specialists, factors that surely would have to be taken into account.

74 Of course, if the trial were not adjourned and the appellant's medical witnesses were compelled to testify and be cross-examined by reference to the video film without adequate time being given to them to consult and reflect on what they had seen, the injustice would again be patent.

75 For my part, I consider that there would also be an injustice to the appellant herself in allowing the respondent to confront her by the video film, which she has not previously seen. I have previously observed that it is often difficult for parties to recall events, which took place in the past, and most people need time and assistance in putting particular events in appropriate context. That is why the rules require discovery of documents not subject to privilege to be produced before trial, even when those documents bear upon the credibility of the parties. In my view, the need for a party to be given such an opportunity in regard to material such as the video film is recognised by the policy underlying O 36 r 4. In my view, there is no justification for denying the appellant that opportunity.

The situation of the medical witnesses

76 The position of the respondent's medical advisers is a matter of some curiosity. The medical reports provided by the respondent's medical advisers make no mention of any of them having seen the video film. The appellant's solicitors have requested the respondent's solicitors to inform them whether or not they have shown the video material to their doctors, but the respondent's solicitor's have not replied to that request.

77 Order 36A r 2(2) requires a party, unless the court otherwise directs, to serve on the other parties copies of all medical reports the substance of

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which that party intends to rely on at the trial or hearing. Order 36A r 2(5) provides that, except with the leave or a direction of the court, or where all other parties agree, no witness may give medical evidence at the trial or hearing of a cause or matter unless the substance of that evidence has been disclosed in writing to all other parties within the time stipulated. In my view, if the medical witnesses have seen the video film or have been told about it, and that has influenced their opinions in any way (by confirming or reinforcing the opinions they have expressed, or altering or negating them), those witnesses should not, without leave, be allowed to testify as to those opinions.

78 Whether or not the respondent's medical witnesses have seen or been told of the video film was not revealed to Groves DCJ. In my view no decision should be made under O 36 r 4 without the Court knowing the truth about this aspect. If a defendant's medical advisers have seen a video film of the plaintiff that has influenced their views, and that has not been revealed to the plaintiff's medical advisers, the defendant would thereby acquire a significant and unfair advantage over the plaintiff and the basic purpose of the rules would be subverted. At the least, the plaintiff should be given the opportunity to seek an adjournment of the trial, but this may be cold comfort.

79 Of course, there is an incentive for the medical advisers not to give an indication in their reports that the video film influenced them in their opinions as that may result in an imputed waiver of legal professional privilege (see, for example, Instant Colour Pty Ltd v Cannon Australia Pty Ltd, unreported; Fed Ct of A; 24 April 1995, per Nicholson J, Jessup v Andre Gorjup, unreported SCt of T; 20 November 1997, per Crawford J).

80 If the respondent's medical advisers have not been shown the video film or been told what it contains, it would again follow that except with the leave of the court those witnesses would not be able to testify as to the impact on their views of the video film. Were leave to be given, it may mean that the Court would be required to countenance a defendant deliberately keeping the video material from his or her medical advisers in the knowledge that the film is likely to have some influence on their opinions. Of course, were that to occur, the medical reports exchanged by the defendant's medical advisers would probably not give a complete picture of the testimony eventually to be given by them. That, in my view, would be an undesirable situation.

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81 In my opinion, no order should be made under O 36 r 4 without the above matters being investigated, canvassed and taken into account. In this case, they were not.

Unfairness in regard to settlement negotiations

82 An aspect of the learned Judge's approach that strikes me as being particularly unfair is that it allows the respondent, shortly before trial, to obtain carte blanche with regard to the use of the privileged and secret video film, without committing himself to tendering it at trial. The respondent has the option to use the film and the appellant does not know whether it will be used.

83 Plainly, in such circumstances, the video film can be used in terrorem. It is held over a plaintiff like an invisible sword of Damocles. A plaintiff will often never be certain as to what the film reveals; it is generally (as in the present case) not made known to a plaintiff when and where the film was taken, and the subject matter of the film is ordinarily not disclosed in the detail that would enable the plaintiff to identify the occasion when he or she was being photographed. So the plaintiff is faced with mystery evidence that may well be (but also may not be) damning. The plaintiff would simply not know and might never be able to find out. Even if the plaintiff is completely innocent of any simulation, he or she is likely always to suffer from the fear that video material might have to be explained and, given the suddenness and surprise involved in a trial confrontation, it might be difficult to give a convincing explanation. I have pointed out that the proposition that it is not unfair to the appellant to withhold the video film from her until cross-examination, because she should know what she can do and knows what she has done in the past, cannot be sustained.

84 As Groves DCJ points out, most personal injury actions in the District Court are settled. The respondent's solicitor deposed that he has settled 96.5 per cent of claims in which he has been instructed to act, and he is a highly experienced practitioner. To allow the video film, in the circumstances I have described, to be used as an instrument to arrive at a favourable settlement is in my opinion grossly unfair.

85 It is one thing for defendants to attempt to make out a case why they should be entitled to use video film material at the trial only on the basis that they have committed themselves to do so. It is entirely a different matter to make an order allowing them, at their discretion, to produce the

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video film in evidence at the trial should they eventually at some time in the future decide to do so.

The failure to give consideration to the particular facts of the case

86 It is true that the learned Judge stated: "Each case of this kind must of course be considered on its own facts". It seems to me, however, that the only relevant facts peculiar to this case that the learned Judge took into account were the following:

(a) A credibility dispute had arisen;

(b) According to the respondent there was no pathological reason for the appellant's symptoms; and

(c) This means that the appellant "may be feigning or exaggerating a condition" to enhance her claim.

87 Accordingly, as the matter came before Groves DCJ, it was a case where the respondent had raised a general denial concerning the allegations made by the appellant as to the damages suffered by her, and he had denied that there were any pathological or physical causes of the appellant's symptoms. In my opinion, on those facts there could be no compelling reason to withhold production of the video material by reason of the peculiar circumstances that obtained in regard to this particular piece of litigation. Rather, it is apparent that the learned Judge was motivated by the general considerations to which I have previously referred.

Conclusion

88 For the reasons I have set out above, I would uphold the appeal in respect of the application brought by the respondent under O 36 r 4, set aside the decision made by the learned Judge, and order that that application be dismissed.

89 I would dismiss the appeal in respect of the application made by the appellant for production of the video film, as the video film is privileged and, for the reasons that I have explained, the appellant in these proceedings cannot argue that that privilege has been waived.

90 Of course, it is now open to the respondent until 10 days before the trial to give the appellant the opportunity to inspect the video film and to agree to its admission without further proof, as contemplated by O 36 r 4.

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Should that occur the video film would be receivable in evidence at the trial.

91 Further, it remains open to the respondent to apply under O 36 r 4 for an order that the video material be receivable in evidence without the respondent having to give the appellant the opportunity to inspect it. If such an application is made, either to a Judge in chambers or to the trial Judge, it should be determined in accordance with the principles I have set out above.

92 On that basis the application should be predicated on a statement by the respondent that, in fact, he intends to use the video film at trial and an undertaking by him to do so or to produce the film at trial to the appellant. Subject, arguably, to any waiver of privilege that may occur, and the effect thereof (and I express no opinion on these issues), it would be open to the court under O 36 r 4 to excuse the respondent from producing the film. The respondent would however have to show grounds relating to the particular circumstances of the case (in the sense I have described), justifying the making of such an order.

93 WALLWORK J: I agree with the reasons for judgment of Ipp J and to the orders proposed by his Honour.