Calvary Health Care Adelaide Incorporated v Price - [2013] SASC 97

SUPREME COURT OF SOUTH AUSTRALIA
(Appeals to a Single Judge: Civil)
CALVARY HEALTH CARE ADELAIDE INCORPORATED v PRICE & ANOR
[2013] SASC 97
Reasons for Decision of The Honourable Justice Gray
25 June 2013
PROCEDURE - DISCOVERY AND INTERROGATORIES - DISCOVERY AND INSPECTION OF DOCUMENTS - PRODUCTION AND INSPECTION - GROUNDS FOR RESISTING PRODUCTION - CLIENT LEGAL PRIVILEGE - WHAT CONSTITUTES - FOR PURPOSES OF OR IN CONTEMPLATION OF LITIGATION
PROCEDURE - DISCOVERY AND INTERROGATORIES - DISCOVERY AND INSPECTION OF DOCUMENTS - PRODUCTION AND INSPECTION - GROUNDS FOR RESISTING PRODUCTION - CLIENT LEGAL PRIVILEGE - WHAT CONSTITUTES - COPIES OF DOCUMENTS
PROCEDURE - DISCOVERY AND INTERROGATORIES - DISCOVERY AND INSPECTION OF DOCUMENTS - PRODUCTION AND INSPECTION - GENERALLY - DOCUMENTS IN POSSESSION OF PERSON NOT A PARTY
PROCEDURE - COSTS - APPEALS AS TO COSTS - WRONG EXERCISE OF DISCRETION
Appeal and cross-appeal from an interlocutory decision of a District Court Judge - infant plaintiff commenced proceedings against hospital and obstetrician claiming negligence in relation to antenatal care afforded to plaintiff's mother and in relation to plaintiff's birth - plaintiff applied to District Court Judge for order requiring hospital to produce several classes of documents - plaintiff's application succeeded in part - defendant appealed against Judge's decision that copies of two documents prepared by midwives recording the circumstances of the plaintiff's birth were not subject to legal professional privilege - whether Judge erred in finding that midwives' documents were not prepared in circumstances where there was a reasonable anticipation of litigation or for dominant purpose of obtaining legal advice - plaintiff cross-appealed against Judge's decision that defendant was not required to produce four documents - first document was a report from Ms Imgraben, the director of clinical services at defendant hospital, notifying defendant's insurer of the circumstances of the plaintiff's birth - where affidavit of Ms Imgraben had referred to reporting criteria under defendant's insurance policy - whether Judge erred in concluding that report was subject to legal professional privilege - whether Judge erred in concluding that reference in affidavit to reporting criteria under insurance policy did not enliven an obligation to produce the document under rule 61 of the District Court Civil Rules 2006 - whether Judge erred in refusing to allow the plaintiff to cross-examine Ms Imgraben - second document was a note of a meeting between plaintiff's parents and Ms Imgraben - whether Judge erred in concluding that dominant purpose of creating this document was to obtain legal advice - third document was a report from a clinical manager of maternity regarding plaintiff's birth - whether Judge erred in ruling that document was subject to legal professional privilege - fourth document was a draft statement prepared by a solicitor on the basis of discussions with a medical expert - whether Judge erred in concluding that this document did not constitute details of a communication relevant to the preparation of an expert report so as to abrogate privilege - whether Judge erred in exercising discretion to make no order for costs.
Held: Appeal and cross-appeal dismissed - the Judge had considered the question of whether privilege attached to the midwives' documents themselves, as opposed to the copies of those documents held by the defendant - it was appropriate to dismiss the appeal to allow the parties to make submissions to the Judge regarding whether privilege attached to the copies of the midwives' documents - Judge did not err in refusing to allow cross-examination of Ms Imgraben - Judge did not err in concluding that there was no obligation to produce report to insurer - production of report to insurer lacked utility in the circumstances - Judge did not err in concluding that report of meeting with plaintiff's parents was privileged - Judge did not err in concluding that report from clinical manager of maternity was privileged - Judge did not err in concluding that draft statement prepared by solicitor was not a communication relating to the preparation of an expert report - Judge did not err in exercising discretion to make no order as to costs.
District Court Civil Rules 2006 (SA) s 61, referred to.
Clone Pty Ltd v Players Pty Ltd (In Liquidation Receivers Appointed) & Ors [2012] SASC 12; Talacko v Talacko (No 2) (2009) 25 VR 613, considered.

CALVARY HEALTH CARE ADELAIDE INCORPORATED v PRICE & ANOR
[2013] SASC 97
Civil
GRAY J.

This is an appeal from an interlocutory decision of a Judge of the District Court concerning questions of legal professional privilege. A cross-appeal has also been lodged against aspects of the same decision.
The plaintiff, Max Saul Price, an infant, issued proceedings in the District Court claiming damages in respect of the alleged negligence of Calvary Health Care Adelaide Incorporated and Karen Chandler, an obstetrician. At the time of his birth on 15 July 2004, the plaintiff was in a very poor condition. He was critically ill, requiring resuscitation, and was transferred for intensive care treatment at the Women’s and Children’s Hospital. The claim concerns an alleged want of care by the defendants in both the antenatal treatment afforded to the plaintiff’s mother and in relation to the plaintiff’s birth. It is alleged that the plaintiff has suffered serious injury as a consequence of the breaches of duty.
The plaintiff’s trial is due to commence on 3 June 2013 in the District Court. Eight weeks have been set aside for the hearing. Slattery DCJ has been assigned to deal with interlocutory matters. Lovell DCJ is to be the trial Judge.
On 8 March 2013, Slattery DCJ heard an application by the plaintiff against Calvary Health Care for the production of documents in respect of which claims for privilege had been made. The Judge delivered his ruling on 12 April 2013 and ordered that the application be granted in part.
The Appeal
Calvary Health Care has appealed in respect of the order made for the production of two documents, being copies of reports prepared by two midwives who were said to have attended the plaintiff’s birth. The plaintiff has cross-appealed in respect of three documents to which the Judge ruled that legal professional privilege attached. The appeal and cross-appeal were listed for urgent hearing having regard to the pending trial date.
On 2 May 2013, I made orders dismissing both the appeal and the cross-appeal. My reasons for dismissing the appeal and cross-appeal follow.
The Documents of the Midwives
Slattery DCJ discussed the midwives’ documents as follows:
The defendant filed affidavits of Carolyn Alana Hughes, a midwife employed by the hospital and who was a midwife involved in the birth of Max. In her affidavit sworn 14 February 2013 (FDN24) Ms Hughes informs the Court that she recalls, having been a midwife involved in the birth of Max and that following the delivery she thought that she should handwrite an account of her involvement so that it was clear in her mind in the event of some later litigation. She prepared typed-written notes later that day. From those notes she prepared a typed statement and she has retained both. She also informed the Court that her training as a midwife dictated that if there was an “unexpected” outcome from the birth (the Court was not informed what, in the birthing process, an “unexpected outcome” may constitute) and if she thought that the events might result in a claim then she should write a statement of what had occurred.
Jane Elizabeth Warland is also a midwife employed by the hospital and, according to her affidavit, she was involved in the birthing process of Max. However her precise involvement is not apparent because Ms Warland informs the Court that she cannot recall the exact details apart from the fact that Max was born in a poor condition and that his parents were questioning why.
Ms Warland informs the Court that apart from recalling that Max was born in a poor condition, she was aware that his parents were unhappy with the condition in which he was born and were questioning why. I have already described the condition of Max at birth in some detail. Parents’ reactions of unhappiness (and distress and other extreme emotions) are to be expected.
Ms Warland informs the Court that at the time of the birth she thought that Max’s parents might bring litigation arising from the mother’s labour and Max’s birth and by dint of her midwifery training, she thought it prudent to write an aide memoire of the events in order that she could recall them at a later time in the event of litigation.
It is significant that because of their position in the Hospital, neither Ms Warland nor Ms Hughes were then in a position to actually anticipate litigation. Their position was that as a matter of prudence, they should record what had occurred in the event that this record would be later required to be used to refresh their memories of the events. There was no certainty or particular level of possibility that the records would be required but rather as a matter of prudence they should be produced.
His Honour’s decision in regard to those documents is set out in his reasons as follows:
In my judgment, the midwives’ documents are required to be produced because I am not satisfied that the dominant purpose of their production occurred in circumstances where objectively assessed there was a real prospect of litigation or for the obtaining of legal advice. In my opinion, at that time, the dominant purpose of the production of the documents was so that the midwives could have a record of what had transpired at the birth of Max. At that time, from their point of view and assessed objectively, the prospects of proceedings were only a mere possibility. In my view the circumstances of the production of these documents is not materially different from the circumstance that pertained in Grant v Downs (1976) 135 CLR 674. Although it is now clear that the judgment of Barwick CJ (in dissent on the issue but not in the result) now constitutes the law of Australia (the dominant purpose test) all of the Justices of the High Court had no difficulty in deciding that documents of this nature were discoverable.
The affidavits filed by each midwife record that each prepared the document soon after the birth of the plaintiff so that they would have a contemporaneous record of their involvement in the birth. Carolyn Alana Hughes deposed as follows:
I was a midwife involved in the birth of Max Price on 15 July 2004.
Following the delivery I decided that I should write down an account of my involvement while it was clear in my mind because I thought I might need to recall the information much later in the event of litigation. I therefore prepared a typed document that day prior to commencing my next shift.
Initially I prepared handwritten notes from which I prepared a typed statement and have retained both documents.
I had been trained and told over many years of nursing that if I was involved a [sic] delivery where there was an unexpected outcome from a birth and I thought that the events might result in a claim, I should write a statement of what happened. This was the reason I prepared a statement on 15 July 2004. I have signed the statement and noted that it was prepared 12 hours after the delivery.
Jane Elizabeth Warland deposed as follows:
I was a midwife employed at Calvary Hospital in North Adelaide at the time of the birth of Max Price and was involved in his delivery.
Although I cannot recall the exact details, I do recall that Max was born in poor condition and had some significant problems from birth.
It was apparent to me from the time of his birth that Max’s parents were unhappy with the condition in which he was born and were questioning why.
I recall at the time thinking that Max’s parents might bring litigation arising from his mother’s labour and his birth. I was aware from my midwifery training that it would be prudent to write an aide memoire of the events so that I would be able to recall the events at a later time in the event of litigation. This was the main reason I prepared a statement.
I therefore prepared a typed statement on 15 July 2004 which I titled aide memoire. I did not sign the statement. This was the only statement I prepared on that date.
In the discovery made by Calvary Health Care, a claim for privilege was made in respect of copies of each of the documents prepared by the midwives. I infer that the midwives made copies available to Calvary Health Care, their employer, for the purpose of litigation. However, I make no finding in this regard.
Although the order of Slattery DCJ required the production from Calvary Health Care of copies of the statements that it held, the question of any privilege attaching to those copies was not addressed. Neither party advanced submissions as to any claim for privilege that Calvary Health Care made to those copies. The plaintiff’s argument proceeded on the basis that no privilege attached to the original statements held by the midwives. To compound this problem, it does not appear as though either midwife was made aware of, or heard on, the application. Notwithstanding the above, the argument before Slattery DCJ focussed on any privilege that the midwives might be entitled to claim.
On the hearing of the appeal, counsel appearing for Calvary Health Care accepted that the matter had not been properly addressed by the parties in the court below or by the Judge. It was accepted that if the plaintiff wanted to obtain the original statement retained by Ms Hughes, or the statement that I infer has been retained by Ms Warland, on the basis that those statements were not the subject of privilege, then a different process should have been adopted. In particular, Ms Hughes and Ms Warland should have had notice of the application and the opportunity to be heard. No doubt, this can be readily addressed if the plaintiff wishes to pursue these documents from the midwives.
The order for production made by Slattery DCJ relates to the documents discovered by Calvary Health Care; that is, the order relates to the copies of the documents that it holds. Different issues as to privilege may arise in relation to these copies. For instance, it is unclear whether, at the time that the copies were created, they were created for the purpose of litigation or obtaining legal advice. It is possible that the view could be taken that the statements held by Ms Hughes and Ms Warland are not privileged, but that the copies of these statements held by Calvary Health Care are privileged. Legal authority has been described as unclear on some of the issues that arise. I refer, in particular, to the recent discussion of this topic in Clone Pty Ltd v Players Pty Ltd (In Liquidation Receivers Appointed) & Ors.[1] These matters were not advanced before Slattery DCJ and have not been the subject of any ruling.
[1] Clone Pty Ltd v Players Pty Ltd (In Liquidation Receivers Appointed) & Ors [2012] SASC 12.
Conclusion
Counsel agreed that the appropriate course was to dismiss the appeal by Calvary Health Care, but to continue the order for the stay of the production of the documents until the matters could be readdressed before Slattery DCJ.
The Cross-Appeal
As indicated above, I dismissed the plaintiff’s cross-appeal. The cross-appeal relates to several documents that have been ruled to be the subject of legal professional privilege. Before coming to discuss the particular documents and the reasons of Slattery DCJ, I commence with the following general observations.
Background
It appears to have been evident to all that the plaintiff had undergone a traumatic birth and that there was the potential for serious long term consequences. Susan Jean Imgraben was, at the time of the plaintiff’s birth, the Director of Clinical Services of Calvary North Adelaide Hospital. Slattery DCJ, in his reasons, discussed Ms Imgraben’s earlier involvement as follows:
In 2004, part of Ms Imgraben’s responsibilities included responsibility for identifying, analysing and reporting risks and reporting all potential claims to the hospital’s insurers and instructing and liaising with the hospital’s legal advisers.
In her affidavit, Ms Imgraben informs the Court that she has no recollection of the birth but on the day of the birth she was contacted by the Clinical Manager, Maternity (Ms Kleinig) about the birth. Upon being notified by the Clinical Manager, Maternity, Ms Imgraben prepared a first notification form to be forwarded to the insurers and insurance broker because she thought that Max’s birth could give rise to legal claims against the hospital. She says that it was her experience as Clinical Director that an outcome such as that experienced by Max at birth had a high likelihood of becoming litigious and therefore posed a high risk of financial exposure to the hospital and to the insurers. She also says (paragraph 7) that the circumstances of Max’s birth also met mandatory reporting criteria under our insurance policy. It is this assertion which is the subject of the further claim under Rule 61 made by the plaintiff.
Consistent with that version of facts, very soon after the date of the birth and soon after the notification to the insurers, contact occurred between the hospital (Ms Imgraben) and the insurers appointed solicitors who would act on behalf of the hospital. Ms Imgraben thinks that this occurred sometime prior to 1 September 2004 and contact was made with the solicitors with the purpose of obtaining legal advice about the circumstances of Max’s birth and potential litigation. On balance, I am of the view that Ms Imgraben is correct that contact with solicitors occurred prior to 1 September 2004. As will become evident, the solicitors were in a position to advise the Hospital prior to a conversation between Ms Imgraben and Max’s parents that occurred on 2 September 2004.
Ms Imgraben also requested and received a summary from Ms Kleinig, the Clinical Manager, Maternity of information about the birth. The summary and production of it is sought by the plaintiff and is document 7. This request for and production of that document occurred in the context of the notification to insurers and the giving of instructions to solicitors concerning the potential for a claim that had been identified and notified by Ms Imgraben on behalf of the hospital.
In late August 2004, Ms Imgraben had contact with the plaintiff’s parents and, under the terms of the hospital’s policy, meetings occurred. The Judge described these events in his reasons as follows:
A second issue arises in relation to the content of Ms Imgraben’s affidavit because she deposes that during late August she had contact from Max’s parents under the terms of the hospital’s policy. The parents were seeking information and two meetings occurred. Arrangements to meet were made in the conversations of 2 September 2004 and there had been some lead up contact prior to the conversation. The meeting with Mr and Mrs Price occurred on 15 September and Ms Imgraben later made a very detailed record of the conversations at that meeting.
Following the request for a meeting from Mr and Mrs Price, Ms Imgraben sought advice from solicitors prior to having any meeting. Mr Mitchell from the firm Minter Ellison Lawyers provided the advice sought by Ms Imgraben concerning that meeting.
The effect of Ms Imgraben’s evidence is that she was seeking legal advice about the matters to be discussed at the meeting with Mr and Mrs Price.
Following that meeting with Mr and Mrs Price, Ms Imgraben prepared a typed note dated 17 September 2004 so that she could have a record of matters discussed to be put to solicitors for their advice to the hospital and to the insurer. Those documents were emailed to the solicitor on 22 September 2004 and is now identified as document 8. Following that email, there is then considerable communication between Ms Imgraben and the Hospital’s solicitors between 22 September and 14 October 2004. At that time, the solicitors commenced interviewing midwives and other staff involved in the birth.
Another meeting between Ms Imgraben and Mr and Mrs Price was arranged to occur on 14 October 2004 and, consistent with her earlier approach, Ms Imgraben sought advice from solicitors about how she should conduct the meeting. Ms Imgraben expected to report to solicitors upon the content of the meeting.
The meeting occurred on 14 October 2004; following the meeting very detailed notes were again prepared by Ms Imgraben and were then sent by her to the solicitors for the purpose of those solicitors providing advice to the hospital and its insurers on the matters that were discussed in the meeting between Ms Imgraben and Mr and Mrs Price. The notes delivered to the solicitor are document 12.
Ms Imgraben informed the Court that the documents that she did prepare were quite detailed and formal documents. They are to be differentiated from general notes which she otherwise may have prepared because, in the circumstances, the documents were for the purposes of recording information for communication to solicitors and for the purposes of obtaining legal advice. They were detailed and so were much less perfunctory than the notes that she would usually make.
Cross-Examination

On the hearing before Slattery DCJ, counsel for the plaintiff sought leave to cross-examine Ms Imgraben. Counsel was concerned, in particular, to test Ms Imgraben’s evidence as to the date on which solicitors were retained by Calvary Health Care. The Judge refused to allow cross-examination for two reasons. First, the Judge referred to the reluctance of courts to allow cross-examination on interlocutory matters, citing the decision of Habersberger J in Talacko v Talacko (No 2).[2]In that case, reference was made to the authorities establishing that, although there is a discretion to permit cross-examination, it is a discretion that is normally exercised sparingly. His Honour further considered that he saw no practical utility in permitting cross-examination. Counsel submitted to this Court that his Honour’s published reasons had departed from the short ex tempore remarks he had made during the course of the hearing. It was suggested, in particular, that his Honour had not made any reference to the lack of utility in his ex tempore remarks. This submission was without substance. A review of the transcript discloses that his Honour referred to both reasons at the time of the hearing.
[2] Talacko v Talacko (No 2) (2009) 25 VR 613.
In his reasons, the Judge, when refusing leave to cross-examine, concluded:
After hearing argument from counsel, I ruled that I would not allow cross-examination of the deponents of the affidavits. I formed the view that keeping clearly in mind that the favourable exercise of the permission to cross-examination discretion would be used sparingly, I could see no real or practical utility in cross-examination on the affidavits before me. That affidavit material filed by both parties was carefully and informatively drawn with a focus clearly upon the relevant well settled principles. I therefore could identify no real or practical utility in allowing cross-examination, especially bearing in mind the strict time pressures upon me on the day of argument and also due to the imminent trial of this matter before Judge Lovell.
On my review of the material filed in Court, I was satisfied that I would not be assisted by cross-examination of the deponents to the affidavits filed on behalf of the defendants.
Counsel for the plaintiff sought the re-exercise of this discretion by this Court. I do not consider that any error has been identified in the reasons of the Judge. The decision made was well within his Honour’s discretion and I see no reason to doubt his exercise of that discretion. No error of principle was identified and the Judge was not shown to have had regard to any irrelevant material or to have overlooked any relevant material.
A Report to Insurers
In her affidavit, Ms Imgraben deposed:
It was my experience, from previous experience as a clinical director, that an outcome such as that experienced by Max at birth had a high likelihood of becoming litigious and therefore posed a high risk of financial exposure to the Hospital and to our insurers. The circumstances of Max’s birth also met mandatory reporting criteria under our insurance policy.
Counsel for the plaintiff asserted that the reference to the reporting criteria under the insurance policy was reference to a document and that this gave rise to an obligation under the rules of court to produce the relevant documents.
Slattery DCJ addressed this topic as follows:
The second category of documents relates to materials prepared by and for the then Director of Clinical Services at the defendant hospital, Susan Jean Imgraben. I will call these documents the “Imgraben documents”. There is one addition to this second category of documents namely a request for what is alleged to be a document referred to in paragraph 7 of the affidavit of Ms Imgraben’s sworn 13 February 2013 (FDN22). That application is made under Rule 61 of the District Court Rules. The content of that rule is as follows:-
“61—Copies of documents to be provided
(1)     If—
(a)a party files in the Court a document that refers to some other document; and
(b)the party is in possession of the original or a copy of the document referred to,
the party must, at the request of another party, provide the other party with a copy of the document.
(2)     A party who files a secondary originating process introducing a new party to the action must, at the request of the new party, provide the new party with a copy of all documents filed in the action before that party was served with the originating process.
(3)     A party who files a document in the Court must, at the request of another party and payment of the appropriate fee, provide the other party with a number of photocopies of the document (not exceeding 10) requested by the other party.”
...
I refer to the Rule 61 application. I accept the submissions made by the defendant that the plaintiff has failed to identify a document referred to in the affidavits. In my opinion, the notion of “criteria” does not necessarily or at all constitute a document and a request for a document in the circumstances of this case is not supported by authority. I refer in particular to the decision of Justice McKenzie in Lilypond Constructions Pty Ltd v Barrie Kenneth Homann and Ors. [2005] QSC 266 at [14] where his Honour held in relation to the equivalent Queensland rule (Rule 222):-
“It is undoubtedly probable that some documentary evidence of instructions was created at some time. However, it seems to me that Rule 222 is directed towards a particular situation, that is to say where a document is specifically referred to in the affidavit. Where it is impossible to identify a specific document referred to in the affidavit and the affidavit is ambiguous as to whether any document was in existence at the time relating to the particular reference to “instructions” I am not persuaded that Rule 222 has any operation. In my view, Rule 222 requires a clear and unambiguous reference to a document before it can operate.”
That case concerned an affidavit filed by defendant solicitors referring to instructions received from the defendant concerning a notice to produce. The Court held that the concept of “instructions” does not constitute a reference to a document. So also in this case, a reference to “criteria” is not a reference to a document although, differently from the Lilypond decision, this was a reference to criteria in an insurance policy. However, in my view, the same position pertains because the reference is to mandatory reporting criteria within the policy. In any event, even if I were to accede to the application of the plaintiff, it would only be to the extent of a set of criteria within a term of an insurance policy which, would not illuminate either the defendant’s position or the plaintiff’s position and would have no utility at all. In those circumstances, I also reject the Rule 61 application.
I do not consider that there was an obligation to produce either document. To my mind, the reasons of the Judge correctly identify the rule and do not disclose any misunderstanding of principle. Critically, his Honour’s decision rested on his interpretation of the word “criteria”. The Judge’s decision turned on his view of the facts. I do not consider that any basis has been shown to suggest that his Honour’s approach was in error.
First Notification Form
On the hearing of the appeal, counsel drew attention to a document discovered by Calvary Health Care, being the first notification form forwarded by Ms Imgraben to the hospital’s insurer. Counsel informed the Court that this was the mandatory report made pursuant to the hospital’s insurance policy. Given this acknowledgment, I see no utility in any further disclosure.
Report of Meeting with the Plaintiff’s Parents
Earlier in these reasons, I have referred to the meeting that took place between Ms Imgraben and the parents of the plaintiff. In respect of this meeting, Ms Imgraben prepared a detailed typed note of what had occurred at the meeting. In her affidavit, Ms Imgraben deposed to the history of the matter and of how she had sought legal advice before the meeting. She deposed, inter alia:
Following the meeting on 14 October 2004 I prepared a very detailed typed note of what had occurred at the meeting. I cannot now recall the date on which I prepared this document but it was some time after the meeting. My purpose in preparing that document was to provide the substance of the discussions that had occurred at the meeting with Mr and Mrs Price to Mr Mitchell so that he could provide advice to the Hospital and its insurer. I subsequently provided my detailed note to Mr Mitchell.
The Judge concluded that the dominant purpose in creating Ms Imgraben’s report was to obtain legal advice, and that the report was therefore privileged. In particular, his Honour concluded:
In my opinion, the Imgraben documents including the report from the Manager Maternity (Ms Kleinig) are to be assessed differently from the midwives’ documents. The dominant purpose for the production of those documents was the obtaining of legal advice within the relationship of solicitor and client as existed between Minter Ellison Lawyers and the hospital.
I am satisfied that the dominant purpose for the production of those documents was that of obtaining legal advice. I am satisfied on the papers that Ms Imgraben reasonably anticipated proceedings on a basis higher than a mere possibility however, it is not necessary for me to decide that matter to dispose of this issue. Rather, my view is that having identified the need to notify insurers, and obtain advice from solicitors, the production of that material was for the dominant purpose of obtaining legal advice. This is the case irrespective of what Mr and Mrs Price may have had in their minds.
The rulings made by the Judge were matters within his discretion. No error has been identified in his Honour’s approach, either as a matter of principle or of fact. No basis has been established to cast doubt on his Honour’s ruling.
Report from Clinical Manager
A further document sought by the plaintiff relates to a summary document received by Ms Imgraben from the clinical manager of maternity for information concerning the birth. The Judge identified this document as follows:
Ms Imgraben also requested and received a summary from Ms Kleinig, the Clinical Manager, Maternity of information about the birth. The summary and production of it is sought by the plaintiff and is document 7. This request for and production of that document occurred in the context of the notification to insurers and the giving of instructions to solicitors concerning the potential for a claim that had been identified and notified by Ms Imgraben on behalf of the hospital.
The Judge, in ruling that this document was subject to privilege, observed:
In relation to the Klening document, because that document was produced in the same context as the Imgraben documents, it falls within the same category of documents because Ms Imgraben requested the provision of that document from Ms Kleinig. It could not be said that merely because Ms Kleinig was complying with the request of Ms Imgraben that the document would carry a different character or its nature would be distinguishable from the Imgraben documents. Rather, in my view, a sensible assessment of the matter would be that the Klening document would be assessed in the same fashion as the Imgraben documents and not otherwise.
The position is that the “…test is anchored to the purpose for which the document was brought into existence; the use to which a document is put after it is brought into existence is immaterial…” (Commissioner of Australian Federal Police v Propend Finance Pty Ltd (1997) 188 CLR 501 per Brennan CJ at 508; see also Mundraby v Commonwealth; Lewis v Commonwealth [2001] FCA 884). I am satisfied on the material before me was that the dominant purpose of the Imgraben documents was for the purpose of obtaining legal advice and in these factual circumstances that includes the Kleinig document.
This ruling of the Judge was consistent with his ruling concerning the Imgraben report. Again, I see no basis for there being any doubt cast on the correctness of this ruling.
A Draft Statement
The final challenge related to the Judge’s ruling concerning a draft statement prepared by a solicitor relating to a medical expert. The Judge identified this document as follows:
The third category of documents is a form of a statement drawn by Ms Megan Anne Taylor, a solicitor then but no longer in the employ of Minter Ellison, the solicitors for the first defendant. The document is described by Ms Taylor in her affidavit sworn 13 February 2013 (FDN20) as follows:-
“3.     During the period from 2006 to 2009 I had a number of telephone conferences with a paediatric expert Professor Terrie Inder. I took comprehensive and detailed handwritten notes during each of these telephone conferences and have subsequently provided typed transcripts of my notes to Minter Ellison. The last of these conferences was on 12 November 2009.
4.    At some time after the last teleconference on 12 November 2009 I prepared a draft statement in the name of Professor Inder. As far as I recall, this was my attempt to convert what Professor Inder had said into the form of a statement and which I thought depicted her evidence but which for the reasons set out below was never put to her nor verified by her. My purpose in preparing this document was to set out a statement of Professor Inder’s evidence as I inferred it to be. It was my attempt to aggregate, assemble and interpret the comments of Professor Inder as set out my file notes of my conversations with her. In some parts of the draft statement I raised matters which were left for further discussion with Professor Inder.
5.    I did not have any further telephone conversations or correspondence with Dr Inder specifically to discuss the substance of the draft statement apart from an email on 17 December 2009 to request a copy of her CV to include in the draft statement.
6.    there are no other relevant conversations which I had had with Professor Inder nor any direct statements by Dr Inder that have been omitted from the file notes referred to in paragraph 2 above. In the conversations that I had with Professor Inder, I noted all of these matters discussed in the most comprehensive manner that I could.
7.    Subsequent to preparing the draft statement I did not, at any time, forward the said draft statement to Professor Inder for her consideration.”
The Judge addressed this aspect of the matter at some length, concluding:
Whilst there is no doubt that, within the principles enunciated by Bleby J in Harris Scarfe, that the plaintiff is entitled to see the draft reports of Professor Inder, that is a different matter to the question arising in this action. Ultimately therefore, my decision is that because, in the circumstances of this case the Court is asked to deal with questions of abrogation of privilege, I am not satisfied that the document prepared by Ms Taylor constitutes details of any communication relevant to the preparation of the report and I would not order production of it on that basis.
Ms Taylor’s document was in no sense a report from Professor Inder. It was a draft document cobbled together by Ms Taylor having regard to earlier communications she had had with Professor Inder. I say cobbled together as it was an attempt by Ms Taylor to aggregate, assemble and interpret comments of Professor Inder as set out in file notes of Ms Taylor’s conversations with the Professor. The draft included matters to be the subject of further discussion. Ms Taylor in her affidavit deposed:
During the period from 2006 to 2009 I had a number of telephone conferences with a paediatric expert Professor Terrie Inder. I took comprehensive and detailed handwritten notes during each of these telephone conferences and have subsequently provided typed transcripts of my notes to Minter Ellison. The last of these conferences was on 12 November 2009.
At some time after the last teleconference on 12 November 2009 I prepared a draft statement in the name of Professor Inder. As far as I recall, this was my attempt to convert what Professor Inder had said into the form of a statement and which I thought depicted her evidence but which for the reasons set out below was never put to her nor verified by her. My purpose in preparing this document was to set out a statement of Professor Inder’s evidence as I inferred it to be. It was my attempt to aggregate, assemble and interpret the comments of Professor Inder as set out [sic] my file notes of my conversations with her. In some parts of the draft statement I raised matters which were left for further discussion with Professor Inder.
I did not have any further telephone conversations or correspondence with Dr Inder specifically to discuss the substance of the draft statement apart from an email on 17 December 2009 to request a copy of her CV to include in the draft statement.
There are no other relevant conversations which I had had with Professor Inder nor any direct statements by Dr Inder that have been omitted from the file notes referred to in paragraph 2 above. In the conversations that I had with Professor Inder, I noted all of the matters discussed in the most comprehensive manner that I could.
Subsequent to preparing the draft statement I did not, at any time, forward the said draft statement to Professor Inder for her consideration.
I consider that the Judge was correct in his considerations concerning this document.
The Order as to Costs
Finally, the plaintiff, by cross-appeal, challenged the order for costs made by Slattery DCJ. The Judge determined that it was appropriate to make no order for costs. Following the ruling, counsel for the plaintiff sought to make further submissions and to have the Judge reconsider his order. The Judge permitted further submissions and, having done so, confirmed his earlier order. In his published reasons for costs, the Judge summarised his views as follows:
Having reviewed the whole of the contents of the respective submissions made by the plaintiff and the first defendant on 8 March 2013, and having reviewed the contents of the file, the arguments put by counsel, my decision and the further submissions made by the parties, it is my decision that, in the exercise of my discretion, paragraph 3 of the Orders made by me on 12 April 2013 remains. I will not make any further Order about costs and I see no need to re-exercise my discretion afresh in relation to the question of costs of that argument.
On the appeal it was not suggested that the Judge had proceeded under any misunderstanding as to the relevant principles. There was no suggestion that regard was had to any irrelevant material, or that any relevant matter was overlooked. Each of the parties had had some success on the application. No basis has been identified to support a suggestion that the Judge’s discretion miscarried.
Conclusion
For the reasons set out above, I made an order dismissing the appeal and the cross-appeal.