Cleary v Rinaudo

Case [2013] ACTCA 32

NICHOLAS MORRIS CLEARY v DOMENICO RINAUDO
[2013] ACTCA 32 (9 August 2013)

PRACTICE AND PROCEDURE – Civil Law (Wrongs) Act 2002 (ACT), Chapter 5 – claim for damages for personal injuries – mandatory disclosure of documents – medical report obtained by respondent after court proceedings commenced for the dominant purpose of those proceedings – whether respondent compelled to disclose the report although it was obtained in circumstances that would ordinarily be protected by client legal privilege – whether obligation to disclose extends to reports obtained after the commencement of court proceedings

Civil Law (Wrongs) Act 2002 (ACT), ss 49, 50, 51, 52, 54, 55, 56, 57, 59, 61, 62, 63, 64, 65, 66, 67, 68, 69, 70, 72, 73, 74, 75 77, 78, 79, 80; Pts 5.1, 5.2, 5.3, 5.4; Chs 5, 15
Legislation Act 2001 (ACT), ss 6, 126(1), 138, 140, 141, 171
Motor Accident Act 1988 (NSW), s 48(3)
Motor Accidents Compensation Act 1999 (NSW), s 85(4)
Motor Accidents Insurance Act 1994 (Qld), ss 45, 47, 48, 50
Personal Injuries Proceedings Act 2002 (Qld), s 30

Court Procedure Rules 2006 (ACT) 
Supreme Court Rules 1937 (ACT), rr 12, 46; Os 2, 34, 36A, 39; Divs 2, 3, 4.

Explanatory Statement, Civil Law (Wrongs) Amendment Bill 2003 (ACT)

Angus v Conelius [2008] 1 Qd R 101
Baker v Campbell (1983) 153 CLR 52
Berenguel v Minister for Immigration and Citizenship (2010) 264 ALR 417
Cleary v Rinaudo [2012] ACTCA 61
Coco v R (1994) 179 CLR 427
Corporate Affairs Commission (NSW) v Yuill (1991) 172 CLR 319
K & S Lake City Freighters Proprietary Limited v Gordon & Gotch Limited (1985) 157 CLR 309
Potter v Minahan (1908) 7 CLR 277
Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355
Re an application under s 73 of the Civil Law (Wrongs) Act 2002 3 ACTLR 239
Rinaudo v Cleary (2012) 6 ACTLR 116
Saeed v Minister for Immigration and Citizenship (2010) 241 CLR 252
State of Queensland v Allen [2012] 2 Qd R 148
Suncorp Metway Insurance Limited v Hill [2004] 2 Qd R 681
Toben v Jones (2003) 129 FCR 515
Union Steamship Co. of New Zealand v Melbourne Harbour Trust Commissioners (1884) 9 App. Cas. 365
Watkins v State of Queensland [2008] 1 Qd R 564
X7 v Australian Crime Commission (2013) 87 ALJR 858

ON APPEAL FROM A SINGLE JUDGE OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

No. ACTCA 57 – 2012
No. SC 246 of 2010

Judges:           Burns and Katzmann JJ and Nield AJ
ACT Court of Appeal

Date:              9 August 2013

IN THE SUPREME COURT OF THE     )
  )          No. ACTCA 57 – 2012
AUSTRALIAN CAPITAL TERRITORY           )          No. SC 246 of 2010
  )          
COURT OF APPEAL  )

ON APPEAL FROM A SINGLE JUDGE OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

BETWEEN:NICHOLAS MORRIS CLEARY

Appellant

AND:DOMENICO RINAUDO

Respondent

ORDER

Judges:  Burns and Katzmann JJ and Nield AJ
Date:  9 August 2013
Place:  Canberra

THE COURT…

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AGLC
NICHOLAS MORRIS CLEARY v DOMENICO RINAUDO [2013] ACTCA 32 (9 August 2013)
Case
[2013] ACTCA 32
Decision Date

CaseChat Overview and Summary

In *Cleary v Rinaudo*, the Supreme Court of the Australian Capital Territory considered a dispute concerning the mandatory disclosure of documents in a personal injury claim brought under Chapter 5 of the *Civil Law (Wrongs) Act 2002* (ACT). The appellant sought to resist disclosure of a medical report obtained after the commencement of court proceedings, arguing it was protected by client legal privilege.

The central legal issue before the Court was whether a medical report, obtained by the respondent for the dominant purpose of the ongoing court proceedings, was nonetheless compellable for disclosure despite circumstances that would ordinarily attract client legal privilege. The Court was required to determine the scope of the disclosure obligations under the relevant legislation, particularly in relation to documents created after litigation has commenced.

Burns J reasoned that the *Civil Law (Wrongs) Act 2002* (ACT) imposes a broad obligation for disclosure of documents relevant to the proceedings, and that this obligation is not displaced by the ordinary rules of client legal privilege in the context of personal injury litigation. The Court held that the purpose for which the report was obtained, namely for the litigation, meant it fell within the scope of mandatory disclosure, overriding claims of privilege.

Consequently, the appeal was allowed, and the appellant was ordered to pay the respondent’s costs in accordance with the order made by Refshauge J on 21 December 2012.

Orders

Orders of the court

1. The appeal be allowed.

2. The appellant pay the respondent’s costs in accordance with the order made by Refshauge J on 21 December 2012.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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