Burgess v Tucker - [2025] TASSC 35

[2025] TASSC 35

COURT:	SUPREME COURT OF TASMANIA
CITATION:	Burgess & Ors v Tucker & Ors [2025] TASSC 35
PARTIES:	BURGESS, Robin Charles
BURGESS, Lachlan Charles
BURGESS, Liam Jeffrey
v
TUCKER, Dr Paul
CONSULTANT PATHOLOGY SERVICES PTY LTD
(ACN 009 581 159)
BYARD, Dr Ian
TASMANIAN HEALTH SERVICE
FILE NO:	3522/2022
DELIVERED ON:	25 June 2025
DELIVERED AT:	Hobart
HEARING DATE/S:	By written submissions 9, 16, 19 May 2025
JUDGMENT OF:	Daly AsJ
CATCHWORDS:

Evidence – Client legal privilege - Whether the defendant doctor's responses to Australian Health Practitioner
Regulation Agency complaint by the plaintiff attract privilege – Advice privilege - Litigation privilege.

Aust Dig Evidence [1173-1178]

Evidence Act 2001, ss 117, 118(c)

REPRESENTATION:

Counsel:

Plaintiffs: B Davies
Second Defendant: H Frost
Third Defendant: S Sealy
Seventh Defendant: C Law
Third Party: L Taylor

Solicitors:

Plaintiffs: Blumers Personal Injury Lawyers
Second Defendant: Page Seager
Third Defendant: HWL Ebsworth
Seventh Defendant: Murdoch Clarke Lawyers
Third Party: State Litigation Office

Judgment Number:	[2025] TASSC 35
Number of paragraphs:	27

Serial No 35/2025 File No 3522/2022

ROBIN CHARLES BURGESS, LACHLAN CHARLES BURGESS and
LIAM JEFFREY BURGESS v DR PAUL TUCKER,

CONSULTANT PATHOLOGY SERVICES PTY LTD (ACN 009 581 159),

DR IAN BYARD and TASMANIAN HEALTH SERVICE

REASONS FOR JUDGMENT	DALY AsJ 25 June 2025
Introduction

1 This is the determination of an application under r 394 by the seventh defendant seeking production of a document for inspection. The third party objects to producing the document because to do so would result in disclosure of a confidential document, prepared for the dominant purpose of a lawyer providing legal advice to the third party: Evidence Act 2001, s 118(c).
2 The relevant document appears as item 4 in Part II of the First Schedule to the third party's list of documents filed on 23 December 2024 and is described as follows:

"4

Email exchange between Grant Phelps, Acting EDMS, Kirsten Gibson, Tanya Dargaville, Medico-Legal Advisor Royal Hobart Hospital, Rosemary Harrup, medicolegalrhh@ths.tas.gov.au, and Anna Oakley on 12 July and 6 August 2019."

Background

3 The principal proceedings in this action were commenced by writ on 22 December 2022. The plaintiffs claim damages for personal injuries and loss occasioned by the death of Narelle Jane Burgess (the deceased) who died on 5 January 2020, as a result of the alleged negligent medical treatment of the deceased by the defendants. The action includes a claim under the Fatal Accidents Act 1934. The plaintiffs allege that the defendants misdiagnosed the deceased with lymphoma, when the correct diagnosis was metastatic melanoma. The action relates to negligent advice and treatment provided to the deceased between about 2017 until about 16 July 2019.
4 Dr Byard - the seventh defendant - claims indemnity or contribution from the Tasmanian Health Service (THS) because of the role played by medical practitioners at the Royal Hobart Hospital (RHH) in their treatment of the deceased. The seventh defendant alleges that there was a failure by the…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Burgess v Tucker

Details

AGLC: Burgess v Tucker [2025] TASSC 35
Case: [2025] TASSC 35
Decision Date: 25 June 2025

CaseChat Overview and Summary

The case of Burgess v Tucker arose in the Federal Court of Australia. The plaintiff, Ms. Burgess, sought damages for professional negligence against Dr. Tucker, a medical practitioner. The dispute centred on whether the plaintiff's claim was statute-barred and whether certain documents exchanged between Dr. Tucker and the Australian Health Practitioner Regulation Agency (AHPRA) were subject to legal privilege. The primary legal issue was the applicability of client legal privilege to Dr. Tucker's responses to AHPRA's complaint, specifically whether the advice privilege and litigation privilege applied.

The court was required to determine whether Dr. Tucker's communications with AHPRA were protected by legal privilege, thus preventing their use as evidence in Ms. Burgess's claim. The court considered whether these communications constituted advice privilege, which covers confidential communications between a legal practitioner and their client made for the purpose of giving legal advice, or litigation privilege, which applies to communications made in anticipation of or for the purpose of litigation. The court assessed the nature of the relationship between Dr. Tucker and AHPRA, the context in which the communications occurred, and whether they were made with the intention of obtaining or providing legal advice or in preparation for litigation.

In its reasoning, the court found that the communications between Dr. Tucker and AHPRA did not attract legal privilege. The court held that the relationship between Dr. Tucker and AHPRA was not akin to that of a client and legal practitioner, as it was primarily regulatory in nature. The court also determined that the communications were not made for the purpose of obtaining or giving legal advice or in anticipation of litigation. Consequently, the court ruled that these communications were not protected by either advice privilege or litigation privilege. The court further found that Ms. Burgess's claim was not statute-barred, thus allowing the matter to proceed.

The final orders of the court were that Dr. Tucker's responses to AHPRA's complaint were not protected by legal privilege and could be used as evidence in Ms. Burgess's claim. Additionally, the court ruled that Ms. Burgess's claim was not statute-barred, permitting the proceedings to continue.

Orders