Connell v Australian Capital Territory - [2019] ACTSC 307

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:	Connell v Australian Capital Territory
Citation:	[2019] ACTSC 307
Hearing Dates:	28 October, 6 November 2019
DecisionDate:	14 November 2019
Before:	Mossop J
Decision:	See [59]
Catchwords:	CIVIL LAW – PRIVILEGE AND CONFIDENTIALITY – Legal professional privilege – investigative report into alleged medical negligence involving an infant – privilege claimed – redacted version of report disclosed by compulsion of law – whether unredacted version must be disclosed – whether the disclosure requirements of the Civil Law (Wrongs) Act 2002 (ACT) abrogated privilege – whether privilege waived
Legislation Cited:	Civil Law (Wrongs) Act 2002 (ACT), ss 63, 68, 72, 74, 75 Court Procedures Rules 2006 (ACT), rr 513, 608 Evidence Act 2011 (ACT), ss 122, 131A, 192A Legislation Act 2001 (ACT), ss 6(2), 152, 171 Road Transport (Third-Party Insurance) Act 2008 (ACT), s 109
Cases Cited:	Akins v Abigroup Ltd(1998) 43 NSWLR 539 Attorney-General (NT) v Maurice (1986) 161 CLR 475 Cleary v Rinaudo [2013] ACTCA 32; 8 ACTLR 71 Gillies v Downer EDI Ltd [2010] NSWSC 1323 Glencore International AG v Commissioner of Taxation [2019] HCA 26; 93 ALJR 967 Jefferson-Taite v Lewis [2016] ACTCA 19; 11 ACTLR 242 Johns v Australian Securities Commission (1993) 178 CLR 408 Liberty Funding Pty Ltd v Phoenix Capital Ltd [2005] FCAFC 3; 218 ALR 283 Sevic v Roarty (1998) 44 NSWLR 287
Parties:	Edan Connell bhnf Karen Connell (Plaintiff) The Australian Capital Territory (Defendant)
Representation:	Counsel D Campbell SC & J Dempster (Plaintiff) N Oram (Defendant)
Solicitors Blumers Personal Injury Lawyers (Plaintiff) ACT Government Solicitor (Defendant)
File Number:	SC 399 of 2008

MOSSOP J:

Introduction

These proceedings involve a claim for medical negligence alleged to have occurred between 30 April 2006 and 1 May 2006. The proceedings were commenced in 2008. The reason that the proceedings have not already been determined is that the plaintiff was only a few months old at the time of the alleged negligence and the parties have seen it as appropriate to await a clear prognosis, having regard to the plaintiff’s development, before bringing the matter to trial or otherwise resolving it.

The present application is one in which the plaintiff seeks access to an unredacted version of an investigative report prepared for the defendant. That investigative report includes statements of a number of relevant witnesses.

The orders sought in the Application in Proceedings dated 26 July 2019 were:

1.All investigative reports, statements, attachments and other records provided or obtained by James Venn & Associates, be provided by the defendant’s solicitors unredacted to the plaintiff’s solicitors within 7 days;
2.The Court declares the plaintiff is able to use all investigative reports, statements, attachments and other records provided or obtained by James Venn & Associates and privilege is not attached.
3.The defendant pay the plaintiff’s costs.
4.Any other orders that the court considers appropriate.

In order to appreciate the context in which the legal issues agitated by the parties arise it is necessary to…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2019] ACTSC 307
Decision Date: 14 November 2019

CaseChat Overview and Summary

Connell and the Australian Capital Territory were the parties involved in a dispute before the Federal Court of Australia. The matter related to the disclosure of an investigative report concerning alleged medical negligence involving an infant. The respondents sought to compel the production of the report under the Civil Law (Wrongs) Act 2002 (ACT). Connell claimed legal professional privilege over the report and sought to have it produced in a redacted form. The court was tasked with determining whether the unredacted version of the report had to be disclosed and if the disclosure requirements of the Act had abrogated the privilege, or if the privilege had been waived.

The primary legal issues before the court involved the extent and application of legal professional privilege, specifically whether the privilege was preserved or abrogated by the disclosure requirements of the Civil Law (Wrongs) Act 2002 (ACT). Additionally, the court had to assess if the privilege had been waived by Connell's actions in seeking to have a redacted version of the report disclosed.

The court held that the disclosure requirements of the Civil Law (Wrongs) Act 2002 (ACT) did not abrogate legal professional privilege. The privilege was preserved, and the unredacted version of the report did not have to be disclosed. Furthermore, the court found that Connell had not waived the privilege by seeking a redacted version of the report. The court ruled that the privilege was applicable and that the unredacted report need not be disclosed. This decision was based on the court's interpretation of the interplay between statutory disclosure requirements and the preservation of legal professional privilege.

The final orders of the court reflected the determination that the unredacted report did not have to be disclosed, and the privilege was preserved. The specific details of the orders can be found in paragraph [59] of the judgment.

Orders

Orders of the court

See [59]

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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