Chubb Protective Services v Eke - [2001] WASCA 36

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT : THE FULL COURT (WA)

CITATION: CHUBB PROTECTIVE SERVICES -v- EKE [2001] WASCA 36

CORAM: KENNEDY ACJ
WALLWORK J
ANDERSON J

HEARD: 25 JULY 2000

DELIVERED : 22 FEBRUARY 2001

FILE NO/S: FUL 152 of 1999

BETWEEN: CHUBB PROTECTIVE SERVICES
Appellant
AND
JASON EKE
Respondent

Catchwords:

Workers' compensation - Proceedings to obtain compensation - Procedure before hearing - Right to provision of relevant documents before matter referred for conciliation - Request made after reference for conciliation - No entitlement to provision of relevant documents

Legislation:

Workers' Compensation (Conciliation and Review) Rules 1994, r 12(2)(b)

Workers' Compensation and Rehabilitation Act 1981, s 84K, s 84N, 84ZA(4)

Result:

Appeal allowed

Representation:

Counsel:

Appellant: Mr G R Hancy
Respondent: Mr M E Herron

Solicitors:

Appellant: McAuliffe Schwikkard
Respondent: Gibson & Gibson

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

Norwich Pharmacal Co v Customs and Excise Commissioners [1974] AC 133

Case(s) also cited:

Baker v Campbell (1983) 153 CLR 52
Brown v The Queen (1986) 160 CLR 171
Cooper Brookes (Wollongong) Pty Ltd v Federal Commissioner of Taxation (1981) 147 CLR 297
Corporate Affairs Commission (NSW) v Yuill (1991) 172 CLR 319
Gillett v Bunnings Forest Products Pty Ltd, unreported; Compensation Magistrate's Court; CM 89/96; 28 January 1997
Holmes v Permanent Trustee Co of New South Wales Ltd (1932) 47 CLR 113
Hope v Bathurst City Council (1980) 144 CLR 1
McNair v Press Offshore Ltd (1997) 17 WAR 191
Michail v Chamberlain John Deere (1986) 7 WCR (WA) 92
NSW Associated Blue-Metal Quarries Ltd v Federal Commissioner of Taxation (1956) 94 CLR 509
Pyneboard Pty Ltd v Trade Practices Commission (1983) 152 CLR 328
Sorby v The Commonwealth (1983) 152 CLR 281
Victorian Chamber of Manufactures v The Commonwealth (1943) 67 CLR 335
Waugh v Kippen (1986) 160 CLR 156
Zarb v Kennedy (1968) 121 CLR 283

KENNEDY ACJ: I have had the benefit of reading in draft the reasons to be published by Anderson J. For the reasons which his Honour gives, I agree that this appeal must be allowed. The request referred to in s 84K(1) of the Workers' Compensation and Rehabilitation Act 1981, in order to entitle the worker to a copy of the relevant document, must be a request made after the occurrence of the disability and before the matter is referred for conciliation. Such a request was not made by the worker in this case.
WALLWORK J: I agree with the reasons for judgment of Anderson J and to the order which is proposed by his Honour.
ANDERSON J : This appeal concerns the construction of s 84K of the Workers' Compensation and Rehabilitation Act 1981.
The section is in the following relevant terms:
"84K. Provision of certain documents before commencement of proceedings
(1)A worker who has suffered a disability, or such a worker’s solicitor or agent, may request the worker’s employer at the time the disability occurred, or that employer’s insurer, to provide the person making the request with a copy of such relevant documents as are in the possession of or under the control of the employer and the insurer.
(1a)…
(2)A request under subsection (1) … may be made at any time after the occurrence of the disability and before the matter is referred for conciliation.
(3)A request under subsection (1) … is to be complied with within 7 days after it is received.
(4)In subsection (1), 'relevant document' means —
(a)any contract of service or apprenticeship to which the worker is a party;
(b)any contract for service to which the worker is a party;

(c)records of wages or other remuneration paid to the worker;
(d)any report relevant to the disability by a medical practitioner who has treated the worker for the disability;
(e)any report by a medical practitioner who has conducted tests or investigations on the worker in relation to the disability;
(f)any report by a medical practitioner who has been consulted by a medical practitioner referred to in paragraph (d) or (e) in connection with treatment of, or tests related to, the disability;
(g)any report by a vocational rehabilitation provider in relation to the worker;
(h)any notice of occurrence of the disability given under section 84I(1)(a);
(i)any claim for compensation with respect to the disability made under section 84I(1)(b).

(5)In this section, 'disability' includes alleged disability.
[Section 84K inserted by No. 48 of 1993 s.22; amended by No. 34 of 1999 s.21.]"

The respondent received an injury to his right wrist during the course of his employment with the appellant on 24 July 1998. This caused some degree of incapacity, but he was able to return to light duties in August 1998. On about 24 August 1998, the respondent claims that in the course of his duties he helped the victim of a stabbing which occurred at Whitfords train station. He claims that as a result of that incident, he developed a post‑traumatic stress disorder which incapacitated him. On 24 September 1998, he filed an application under the Act referring a dispute for conciliation pursuant to s 84N. The issue for conciliation was whether the cessation of weekly payments of compensation arising out of the wrist injury was unlawful. The dispute came to conciliation on 26 October 1998. The dispute was not resolved, but certain interim measures were agreed to pending the making of further inquiries by or on

behalf of the appellant or its insurer. These measures included the payment of weekly payments of compensation, without admission of liability, until a psychiatric report could be obtained from the psychiatrist, Dr Febbo.

A further conciliation conference was convened on 22 April 1999 and at this hearing the appellant and its insurer declined to admit liability with respect to that part of the respondent's claim arising from the stabbing incident. Agreement was reached that a further five weeks' compensation would be paid and the dispute was referred to review for determination of liability. Meanwhile, the appellant's solicitors had obtained a report from Dr Febbo. It is dated 1 December 1998 and it was provided to the respondent.
A review hearing was arranged for 17 June 1999. On 8 June 1999, the respondent's advocate applied to the compensation review officer, Ms Pontifex, for an order that the appellant produce to the applicant a copy of another report of Dr Febbo dated 10 March 1999 as well as certain other documents including witness statements and an investigation report and the appellant's solicitor's letter to Dr Febbo of 18 January 1999.
This application was resisted by the appellant which claimed legal professional privilege with respect to these documents.
Review Officer Pontifex accepted that all of the documents in question were obtained by the appellant's solicitors for the sole purpose of obtaining legal advice and for use in the litigation between the parties. She held that the documents were covered by legal professional privilege and that there had been no waiver of that privilege. However, she considered that Dr Febbo's report of 10 March 1999 was a "relevant document" within the meaning of s 84K(4)(e) as being a report by a medical practitioner "who has conducted tests or investigations on the worker in relation to the disability". She held that the protection of legal professional privilege was removed by s 84K(1) in respect to relevant documents and that the appellant therefore had to produce Dr Febbo's report.
From this decision, the appellant appealed to the Compensation Magistrate's Court. The Compensation Magistrate, Mr Heath SM, dismissed the appeal.
In the grounds of appeal to this Court it is pleaded that the Magistrate erred in law in failing to find that the letter from Dr Febbo, that is, his report of 10 March 1999, was not a medical report to which the provisions of s 84K applied in that (a) legal professional privilege applied to the letter, (b) the letter was not a report on tests or investigations on the respondent, (c) no request was made by the respondent (applicant) pursuant to s 84K(2) of the Act prior to the matter being referred to conciliation.
In the view which I take of the case, there is no need to consider ground (b), nor is there any need to directly consider the general question whether s 84K(1) extinguishes the right of an employer or insurer to claim legal professional privilege in respect to "relevant documents".
For the purposes of the appeal, it is accepted that Dr Febbo's report of 10 March 1999 is within the category of documents to which legal professional privilege would attach. Therefore, the only basis on which the respondent could require the document to be produced is that it was a document which was within the ambit of s 84K. In my opinion, it was not. The obligation in s 84K(1) is to provide a copy of relevant documents with respect to which a request is made within the time prescribed by s 84K(2), that is, "at any time after the occurrence of the disability and before the matter is referred for conciliation". It is common ground that there was no request to provide a copy of the document in question before this matter was referred for conciliation. The respondent therefore cannot rely on the provisions of s 84K to get a copy of it.
Counsel for the respondent, Mr Herron, submitted that the effect of s 84K(2) was not to limit the general right conferred on a worker by s 84K(1) to be provided on request with copies of any relevant document. Mr Herron argued that the purpose of subs (2) was to make clear that the worker's entitlement to discovery of relevant documents did not depend on the existence of a dispute. The purpose of the subsection was to ensure to the worker an open‑ended right of discovery with respect to "relevant documents" from the time the disability occurred.
The difficulty with this argument is that it does not give effect to the plain words of subs (2), which in their terms limit the period during which the statutory right conferred by s 84K(1) may be exercised. If all that was intended was that contended for by Mr Herron, there would simply be no need for the words "and before the matter is referred for conciliation" in subs (2). Actually, there would be no need for the subsection at all. We must take it that the subsection was inserted for a purpose and a construction which renders it otiose should not be adopted if an alternative construction is fairly available which gives it a sensible purpose.
In this case, it is easy to see that parliament actually did intend, by subs (2), to limit the right conferred by s 84K(1). At common law there is no general right to have access to documents belonging to other people. Putting to one side the equitable right to discovery (as to which see Norwich Pharmacal Co v Customs and Excise Commissioners [1974] AC 133), discovery by way of discovery of documents is carried out according to the procedures set down in the rules of court. The rules will generally limit and define the types of proceedings where discovery is available and the nature of the documents which must be discovered. The point is that the right to discovery is never at large. It is recognised as a limited right. There are competing interests to be protected. On the one hand, it is important to the administration of justice that the trial process should be fair to both parties. Each party should have an opportunity to see exactly what is alleged against him and the case he will have to meet at trial. On the other hand, fundamental rights of privacy and confidentiality must be recognised. Generally speaking, the right to discovery will not arise at all until the party seeking discovery has alleged a cause of action against the other party. It is the cause of action and the issues joined within it which define the limits of the discovery which each party may obtain against the other.
Section 84K(1) is a departure from this general rule. It enables a disabled worker to gain access to a limited category of documents in his employer's possession before any dispute arises. Obviously, its purpose is to enable the worker to make an informed decision as to what entitlement he may have to compensation under the Act. There is no obvious reason to extend this special and limited right of "discovery before action" beyond the point at which the worker has made his decision to pursue his claim. After that time, other provisions of the Act and rules with respect to discovery take over, as to which see s 84ZA(4) and Workers' Compensation (Conciliation and Review) Rules 1994, r 12(2)(b).
In my opinion, in the absence of proof that a request had been made within the time prescribed by s 84K(2), there was no power to make an order pursuant to s 84K(1) with respect to the document in question.
I would allow the appeal.