Cleary v Rinaudo

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…