Cleary v Rinaudo

[2012] ACTSC 179

NICHOLAS MORRIS CLEARY v DOMENICO RINAUDO
[2012] ACTSC 179 (4 December 2012)

PRACTICE AND PROCEDURE – disclosure of documents – personal injuries claims – professional privilege – ongoing obligation to disclose

Civil Law (Wrongs) Act 2002 (ACT), ss 63, 68, 72
Evidence Act 1995 (Cth), s 119
Legislation Act 2001 (ACT), s 126

In the Matter of an application under s 73 of the Civil Law (Wrongs) Act 2002 [2009] ACTSC 53; 3 ACTLR 239

ON APPEAL FROM THE MASTER OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

No. SC 246 of 2010

Judge:             Higgins CJ
Supreme Court of the ACT

Date:              4 December 2012

IN THE SUPREME COURT OF THE     )
  )          No. SC 246 of 2010
AUSTRALIAN CAPITAL TERRITORY )          

ON APPEAL FROM THE MASTER OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

BETWEEN:NICHOLAS MORRIS CLEARY

Appellant

AND:DOMENICO RINAUDO

Defendant

ORDER

Judge:  Higgins CJ
Date:  4 December 2012
Place:  Canberra

THE COURT ORDERS THAT:

1. The appeal be dismissed with costs.

1. This is an appeal from an interlocutory decision of Master Harper delivered on 31 January 2012.  In my view, the appeal provisions allowing an appeal as of right from an interlocutory decision of the Master is an impediment to the efficient use of judicial resources.  These days the Master is, in terms of appointment, appointed and removable as if a judge of the court. The appeal provisions should reflect that and do away with any extra appellate level.

1. Nevertheless, there is an appeal as of right.

1. The simple issue is whether a report of Dr Coyle, being a second report of his, must be disclosed to the plaintiff.  A first report of 25 February 2010 was disclosed.

1. Dr Coyle re-examined the plaintiff on 2 December 2010.  The defendant claims that report is not disclosable to the plaintiff, though it acknowledges that, if it was to rely upon Dr Coyle’s first report at trial it would be compellable to produce the second.

1. The event sued upon occurred on 22 July 2007.  An originating claim was filed on 7 May 2010.  As required by the Civil Law (Wrongs) Act 2002 (ACT) (CL(W) Act), the plaintiff’s solicitors, on 30 September 2008, gave notice of intention to claim, explaining the delay in so doing.  On 10 November 2008, NRMA Insurance (Insurance Australia Limited), on behalf of the defendant, requested further details pursuant to s 64 of the CL(W) Act.

1. It is the defendant’s contention that the second report is not discloseable as the compulsory disclosure provisions apply only to medical reports obtained by the defendant before commencement of the proceedings.

1. The plaintiff contends that, in any event, the first report being disclosed, the privilege otherwise attaching to the second report is waived.  The defendant responds that the first report was disclosed by compulsion of law and hence did not involve a waiver of privilege concerning examinations by Dr Coyle of the plaintiff.

1. The matter came before the Master who, on 31 January 2012, directed that the report be disclosed.  Notice of Appeal was given on 6 February 2012.  It was amended on 12 June 2012 but was not heard until 20 July 2012.

1. The grounds of appeal are:

   a. His Honour erred in construing the operation of Chapter 5 of the Civil Law (Wrongs) Act 2002.

   b. His Honour erred in holding that the provisions under Chapter 5 of the Civil Law (Wrongs) Act 2002 apply after the commencement of court proceedings.

   c.   His Honour erred in holding that the appellant is now obliged to provide the report of Dr Coyle dated 2 December 2010 pursuant to s 68 of the Civil Law (Wrongs) Act 2002.

2. I agree with the defendant that the first report of Dr Coyle, following notice of intention to make a claim, was provided in compliance with s 68 of the CL(W) Act.  Save to the extent that the Act or Rules otherwise provide, it was exempt from production by reason of legal professional privilege.

1. Section 68 provides the obligation to disclose. Section 72 generally exempts documents protected by legal professional privilege but s 72(2) restricts that exemption to documents other than –

An investigative report, medical report or report relevant to the claimant’s rehabilitation.

1. Section 72(4) permits non-disclosure of “passages containing only statements of opinion”. An order for production, as made by the Master, is permitted by s 78.

1. There was also raised a question as to whether the provisions of the CL(W) Act, if applicable post commencement of proceedings, were inconsistent with the provisions of s 119 of the Evidence Act 1995 (Cth). However, s 119 refers to the adducing of evidence of such a document, a situation which has yet to arise. It is a moot point whether a document produced by a defendant pursuant to s 68 may be adduced in evidence by the plaintiff if the defendant objects. There may be a conflict with s 75(3) CL(W) Act in that event.

1. There is, to my mind, no doubt that the disclosure provisions are intended to facilitate settlement of claims, avoiding litigation. That purpose may well be advanced by disclosure of the kind sought by the plaintiff. It is also clear to me that the commencement of proceedings does not diminish the desirability of that objective being achieved. Section 63 provides:

The purpose of this part is to put the parties in a position where they have enough information to assess liability and quantum in relation to a claim.

1. The question is whether the legislation terminates the obligation of disclosure once a claim is commenced.

1. Section 68(1) refers to documents that are “directly relevant to a matter in issue in the claim”.

1. In this case that clearly embraces the question of quantum of damages.

1. Chapter 5 is headed “Personal injuries claims - pre-court procedures”. Pursuant to the Legislation Act 2001 (ACT), s 126, the heading is part of the Act. “Court” in that context clearly embraces this Court. The definition, however, is not merely a reference to the court with jurisdiction to entertain the matter but (per s 49) “the court hearing the proceeding”. That is not determinative but it does not indicate a cut-off point at the commencement of proceedings.

1. In In the Matter of an application under s 73 of the Civil Law (Wrongs) Act 2002 [2009] ACTSC 53; 3 ACTLR 239, [35], Refshauge J dealt with an application for disclosure under s 73. It was not concerned with the scope of the duty under s 68. Nevertheless, his Honour considered it to be “an ongoing obligation”, that is, one that did not terminate with the commencement of proceedings. To hold otherwise would allow an argument that if a report, otherwise discloseable, was not by then disclosed the obligation so to do would terminate on commencement of the proceedings.

1. The appellant’s only argument which supports the contention of error on the part of the Master is that the provisions of Ch 5 are primarily directed to processes before action is commenced, including s 73 referred to by Refshauge J.

1. To my mind that is an insufficient support for a construction inconsistent with the evident purpose of Ch 5, namely the settlement of actions before a court hearing is required.

1. I, therefore, uphold the Master’s decision and orders.  The appeal will be dismissed with costs.

   I certify that the preceding twenty-two (22) numbered paragraphs are a true copy of the Reasons for Judgment herein of his Honour, Chief Justice Higgins.

   Associate:

   Date:      4 December 2012

Counsel for the Appellant:  Mr J E Sexton SC with Mr M A McDonogh
Solicitor for the Appellant:  Sparke Helmore
Counsel for the Defendant:  Mr G Stretton SC with Mr D Stretton
Solicitor for the Defendant:  Stacks//Compensation Solicitors
Date of hearing:  20 July 2012
Date of judgment:  4 December 2012