Connell v Australian Capital Territory
[2019] ACTSC 307
•14 November 2019
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 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 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 outline the background facts.
30 April 2006 - 1 May 2006
Treatment of the plaintiff (aged three months) at the Canberra Hospital alleged to involve negligence.
12 December 2006
The plaintiff’s former solicitors send a copy of a complaint made by the plaintiff’s mother about the treatment to the Health Services Complaints Commissioner at the ACT Human Rights Commission (HRC).
19 January 2007
A Senior Medical Adviser at the Canberra Hospital provides instructions to the ACT Government Solicitor (ACTGS) instructing it to act and provide advice in relation to the complaint and a claim for compensation.
14 February 2007
Russell Bayliss, a solicitor at ACTGS, provides verbal instructions to James Venn of James Venn & Associates (JVA) to investigate the matter for the purposes of the complaint and the claim.
21 February 2007
ACTGS provides JVA with written instructions to investigate the matter.
May 2007 - April 2008
The parties participate in a conciliation process facilitated by the HRC.
25 June 2007
A Personal Injury Claim Notification Form under the Civil Law (Wrongs) Regulation 2003 (ACT) is served by the plaintiff’s solicitors.
25 July 2007
A report by JVA dated 19 July 2007 (the JVA report) is sent to ACTGS attaching multiple witness statements prepared by JVA.
May 2008
Originating Claim and Statement of Claim filed.
12 December 2016
The defendant files a list of documents pursuant to r 608 of the Court Procedures Rules 2006 (ACT).
September 2016 - February 2017
Correspondence between the parties about the adequacy of discovery.
6 February 2017
Eileen Webb, an ACTGS solicitor, swears an affidavit relating to disclosure and a claim for privilege. This affidavit includes the first reference to the existence of the JVA report in correspondence with the plaintiff.
24 February 2017
The plaintiff files an application seeking orders compelling production of the JVA report.
30 March 2017
Letter from ACTGS to the plaintiff’s solicitors disclosing redacted version of the JVA report. The letter identifies that the JVA report is given under compulsion for the limited purpose of complying with the Territory’s obligations under ss 68 and 72 of the Civil Law (Wrongs) Act 2002 (ACT) (CLW Act) and that the disclosure does not waive any claim for confidentiality or privilege. The letter includes: “For the avoidance of any doubt, our client will object to your client using, relying, or in any way disclosing the Investigative Report and that Venn Witness Statements in the proceeding.”
30 March 2017
Letter from ACTGS to plaintiff’s solicitors containing without prejudice offer to resolve plaintiff’s application for disclosure of JVA report dated 24 February 2017 on the basis that the application is dismissed and the defendant pays the plaintiff’s costs.
30 March 2017
Letter from ACTGS to plaintiff’s solicitors offering to consent to amendments to the Statement of Claim (made in light of matters arising in the JVA Report) on certain conditions.
20 April 2017
The plaintiff’s application dated 24 February 2017 is dismissed by consent.
26 July 2019
The plaintiff files an application to obtain the unredacted JVA report (including the witness statements).
For the purposes of this application, the plaintiff accepted that the JVA report was the subject of common law legal professional privilege at the time that it was brought into existence. That was either because it was prepared for the dominant purpose of advising the Territory in relation to the complaint to the Health Services Complaints Commissioner or because it was prepared in contemplation of legal proceedings by the plaintiff in relation to the treatment received at the Canberra Hospital. The issue between the parties was whether the defendant was obliged to give an unredacted version of the JVA report to the plaintiff and whether any privilege remained in relation to the redacted version of the document already disclosed.
The plaintiff put three arguments in support of the contention that an unredacted version of the JVA report should be provided and that the report was no longer the subject of client legal privilege. Each of those arguments is addressed below.
If privilege had not been completely lost, the plaintiff did not take any issue with the extent of redactions made to the document which were asserted by the defendant to have been permitted under s 72(4) of the CLW Act.
First argument – complete abrogation of privilege under ss 68 and 72 of the CLW Act
Relevant statutory provisions
Sections 68 and 72 of the CLW Act provide:
68 Respondent to give documents etc to claimant
(1) A respondent must give a claimant—
(a) copies of the following in the respondent’s possession that are directly relevant to a matter in issue in the claim:
(i) reports and other documents about the accident claimed to have given rise to the personal injury to which the claim relates;
(ii) reports about the claimant’s medical condition or prospects or rehabilitation;
(iii) reports about the claimant’s cognitive, functional or vocational capacity; and
(b) if asked by the claimant—
(i) information that is in the respondent’s possession about the circumstances of, or the reasons for, the accident; or
(ii) if the respondent is an insurer of a person for the claim—information that can be found out from the insured person for the claim about the circumstances of, or the reasons for, the accident.
(2) The respondent must give the copies mentioned in subsection (1) (a)—
(a) within the period prescribed by regulation (or, if no period is prescribed, within 1 month after the day the respondent receives a complying notice of claim); and
(b) to the extent that a report or other document mentioned in subsection (1) (a) comes into the respondent’s possession later, within 7 days after the day it comes into the respondent’s possession.
(3) The respondent must respond to a request under subsection (1) (b) within the period prescribed by regulation (or, if no period is prescribed, within 1 month after the day the request is received).
(4) If a claimant requires information given by a respondent under this section to be verified, the respondent must give the claimant a statement verifying the information.
NoteIt is an offence to make a false or misleading statement, give false or misleading information or produce a false or misleading document (see Criminal Code, pt 3.4).
(5) If a respondent fails, without proper reason, to comply fully with this section, the respondent is liable for costs to the claimant resulting from the failure.
…
72 Nondisclosure of documents etc—client legal privilege
(1) A party is not obliged to disclose a document or information under this chapter if the document or information is protected by client legal privilege.
(2) However, an investigative report, medical report or report relevant to the claimant’s rehabilitation must be disclosed even though otherwise protected by client legal privilege.
(3) A regulation may prescribe exceptions to subsection (2).
(4) If a report mentioned in subsection (2) is required to be disclosed, it may be disclosed with the omission of passages containing only statements of opinion.
(5) In this section:
investigative reports does not include a document prepared in relation to an application for, an opinion on or a decision about indemnity against the claim from the Territory.
Submissions
The plaintiff contended that the effect of disclosure under s 68 of the CLW Act was that privilege was abrogated. That is, to the extent that disclosure was required, privilege was completely removed and was not only removed for the limited purpose of pre-court settlement discussions. The effect of this argument was that the JVA report, having been disclosed under s 68, was free of privilege and could be tendered, or otherwise used, by the plaintiff in the proceedings.
This argument was developed by reference to the decision of the Court of Appeal in Jefferson-Taite v Lewis [2016] ACTCA 19; 11 ACTLR 242 (Jefferson-Taite). In that case the court was considering the equivalent provisions of the Road Transport (Third-Party Insurance) Act 2008 (ACT) (TPI Act). Section 109 of the TPI Act is the equivalent of s 72 of the CLW Act. In relation to s 109 Burns and Jagot JJ (with whom Penfold J substantially agreed) said at [40]:
Section 109(2) expressly abrogates the common law privilege in relation to client legal privilege for a required document which is an investigative report, medical report or report relevant to the claimant’s rehabilitation.
Later at [49] their Honours said:
Under this scheme client legal privilege, to the extent specified in s 109(2), is abrogated.
The plaintiff submitted that in light of these comments s 72 should be interpreted as completely abrogating client legal privilege in the document that was disclosed and hence allowing that document to be used or tendered as the receiving party saw fit for the purposes of the proceedings.
On the other hand, the defendant contended that any disclosure made pursuant to the CLW Act was limited in scope and made only for the purposes of the statute. The defendant contended that those purposes did not extend to the use of the disclosed document in the substantive proceedings. The position adopted by the defendant was that although the document was required to be disclosed and the knowledge gained from the content of the document could be used by the plaintiff, the document itself could not be tendered in the proceedings and could not be used in any other direct way such as in order to provide the basis for interrogatories.
In support of the contention that the abolition of privilege was limited, the defendant referred to the decision of Brennan J in Johns v Australian Securities Commission (1993) 178 CLR 408. In that decision his Honour discussed a statutory power to disclose a written record of a compulsory examination. He said (at 423-424):
A person to whom information is disclosed in response to an exercise of statutory power is thus in a position to disseminate or to use it in ways which are alien to the purpose for which the power was conferred. But when a power to require disclosure of information is conferred for a particular purpose, the extent of dissemination or use of the information disclosed must itself be limited by the purpose for which the power was conferred. In other words, the purpose for which a power to require disclosure of information is conferred limits the purpose for which the information disclosed can lawfully be disseminated or used.
…
A statute which confers a power to obtain information for a purpose defines, expressly or impliedly, the purpose for which the information when obtained can be used or disclosed. The statute imposes on the person who obtains the information in exercise of the power a duty not to disclose the information obtained except for that purpose … The person obtaining information in exercise of such a statutory power must therefore treat the information obtained as confidential whether or not the information is otherwise of a confidential nature.
The defendant submitted that this principle applied to the operation of ss 68 and 72 and had the consequence that the disclosure under those sections only permitted the disclosed document to be used for the purposes of settlement of the proceedings either prior to the commencement of proceedings or as soon as possible thereafter. Following from this the defendant submitted that any other use of the document was not authorised and the defendant was entitled to assert privilege in response to any attempt to tender the document.
Consideration
There are two issues which need to be resolved. The first is whether or not the disclosure under ss 68 and 72 is for the limited purpose of settlement of proceedings, or whether it is for the more general purpose of a claim for personal injury including any subsequent court proceedings. The second is whether privilege in a document disclosed under ss 68 and 72 is wholly abrogated or whether it is only abrogated to the extent that its disclosure is required but is otherwise preserved. If the plaintiff is to obtain access to the unredacted JVA report then both of these issues must be determined in his favour. That is, the purpose of disclosure must not be limited to settlement of the proceedings and privilege must have been wholly abrogated.
The first issue
In relation to the first issue, ss 68 and 72 both fall within Ch 5 of the CLW Act which is entitled “Personal injuries claims – pre-court procedures”. Part 5.3 which contains s 68 is entitled “Obligations of parties to give documents and information”. Section 72 is contained within Pt 5.4 “Other provisions – pre-court procedures”. The purpose of Pt 5.3 is identified in s 63 as follows:
63Purpose— pt 5.3
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.
Although the CLW Act deals with a variety of topics Ch 5 is, as its name indicates, targeted at pre-court procedures. The submissions of the defendant recognised that the purpose of the provisions could not be confined to the settlement of a personal injury claim prior to the commencement of proceedings but must extend to settlement of the proceedings “as soon as possible thereafter”. That picks up the language used by Katzmann J (with whom Burns J and Nield AJ agreed) in Cleary v Rinaudo [2013] ACTCA 32; 8 ACTLR 71 at [50]:
The obligations in ss 64 and 68 are plainly intended to operate before any proceedings are instituted. Of course, that does not necessarily mean that there is not also an ancillary purpose of ensuring that if claims cannot be settled before any proceedings are begun, they should be settled as soon as possible thereafter, and that the disclosure provisions are designed in part to bring that about.
(Emphasis added.)
In my view, it is not possible to confine the statutory purpose for which disclosure is required to settlement of proceedings in the manner contended for by the defendant. The undoubted purpose of the pre-court disclosure provisions is to bring forward the time at which the parties are able to assess the merits of a claim for personal injury and hence acting rationally, are able to settle the claim. They represent a significant change to the situation that existed prior to their enactment where no such disclosure was required. By requiring such disclosure the legislation would tend to increase the likelihood of early settlement of claims and reduce the costs associated with resolving those claims.
However, the pre-court procedures contemplated that, if the claim was not resolved, it would proceed to court. While the progression from pre-court procedures to court proceedings is less explicit than in the sequence identified in the TPI Act, there can be no doubt that the CLW Act contemplates such a progression. In my view it is not possible to derive from the statement of the purpose of Pt 5.3 in s 63 of the CLW Act a limitation on the purpose of disclosure to only settlement rather than litigation of the claim. Once it is accepted, as the decision of Katzmann J in Cleary requires, that the purpose extends beyond the time when court proceedings are commenced, it is not practically possible to disentangle the prospects of settlement of the proceedings from the proper conduct of the litigation. There are not two separate paths to a resolution of the claim, one involving settlement and one involving court determination. Rather, progress towards court determination will be intimately related to the likelihood of settlement. The prospects of settlement will increase as the door of the court gets closer. Because of this, it is not possible to confine the legislative purpose of requiring early disclosure of certain materials to the settlement of proceedings in a way that distinguishes such a purpose from the proper conduct of litigation. Instead, the legislative purpose should be seen as increasing the likelihood of earlier settlement through disclosure of information for the purposes of the claim generally, whether before or after the commencement of court proceedings. That means that a recipient of information is not acting outside the scope of ss 68 and 72 by making use of disclosed material for the purposes of the conduct of court proceedings relating to the claim.
The second issue
Given that a recipient of disclosed material may make use of the material for the purposes of both settlement of the claim and court proceedings in relation to the claim it is necessary to consider the second issue. The second issue is whether privilege is wholly abrogated in a document within the scope of s 72(2), or whether it subsists except to the extent to which its disclosure under the statute is compelled. Following the commencement of proceedings questions of privilege must be determined in accordance with the Evidence Act 2011 (ACT): s 131A Evidence Act. This issue is not resolved by the decision in Jefferson-Taite. The references in the joint judgment to privilege being “abrogated” were made in a context in which no issue arose as to anything other than actual disclosure. The question was whether disclosure of a medical report obtained following the commencement of proceedings was required or not. No distinction was made between the disclosure of the document and its use or tender in the proceedings, this being the distinction in the present case. It is therefore not possible to regard the references to privilege being “abrogated” in the joint judgment as resolving the argument presented in this case. In any event, the sentence quoted at [11] above makes it clear that abrogation is “to the extent specified in s 109(2)”, leaving open the question as to precisely what extent it was so abrogated.
The starting point for consideration of this issue must be s 171 of the Legislation Act 2001 (ACT) which provides:
171Client legal privilege
(1) An Act or statutory instrument must be interpreted to preserve the common law privilege in relation to client legal privilege (also known as legal professional privilege).
(2) However, this section does not affect the operation of the Evidence Act 2011.
NoteThe Evidence Act 2011, div 3.10.1 contains provisions about client legal privilege.
(3) This section is a determinative provision.
NoteSee s 5 for the meaning of determinative provisions, and s 6 for their displacement.
Section 6(2) provides that a determinative provision may be displaced “expressly or by a manifest contrary intention”. There are examples of express displacement and displacement by manifest contrary intention given at the end of the section.
Section 72(2) of the CLW Act is a provision which expressly displaces client legal privilege. That was recognised in relation to the equivalent provision in the TPI Act in Jefferson-Taite at [40]. However, the subsection does not expressly extinguish client legal privilege in relation to a disclosed document. Rather, it simply requires that it “must be disclosed even though otherwise protected by client legal privilege”. The terms of the subsection say nothing about anything other than the requirement for disclosure. In particular, there is no reference to extinguishment of the privilege or any statement about the operation of the Evidence Act.
Having regard to the default position being the preservation of client legal privilege, the reference to documents being “disclosed” should not be interpreted as affecting the existence of client legal privilege except to the extent to which disclosure is compelled. In particular, the section cannot be interpreted so that it achieves a wholesale abrogation of privilege in the document. That leaves it open to the disclosing party to assert privilege over the document to the extent to which that is possible under the Evidence Act.
Client legal privilege is a privilege from disclosure and a privilege from admission into evidence in proceedings. It is not a generally available right which may be asserted against use of a document which has been disclosed: see Glencore International AG v Commissioner of Taxation [2019] HCA 26; 93 ALJR 967 at [22], [32] and [40]. As a consequence, following disclosure of a document under ss 68 and 72 it is open to the receiving party to use that document for the purposes of proceedings. That includes, as anticipated by the plaintiff in this case, use for the purposes of administering interrogatories. However, at the point where the document, or another document disclosing its contents, is sought to be tendered then the admissibility of that document would need to be assessed by reference to the terms of the Evidence Act. Depending upon the manner in which the disclosed document was used in the drafting of interrogatories then that may have consequences for the ultimate admissibility of the answers. However, that answers to interrogatories may, depending on the circumstances, not ultimately be admissible would not necessarily deprive them of utility.
In summary, I do not accept the submission of the plaintiff that the effect of s 72(2) is to wholly abrogate client legal privilege in a disclosed document. In light of s 171 of the Legislation Act, s 72(2) must operate in accordance with its terms to compel disclosure but not otherwise affect client legal privilege in the document. That leaves it open to the receiving party to use the document for the purposes of the proceedings but does not overcome any barriers to the admissibility of the document for evidence based upon it that are put in place by the Evidence Act.
Application of the Evidence Act
The plaintiff’s application sought a determination of whether or not the JVA report and its included witness statements were free of privilege. In light of what I have said in the previous paragraph this would only be relevant at the point where the document was sought to be tendered. In those circumstances, the substance of what the plaintiff is seeking is an advance ruling which could be made under s 192A of the Evidence Act. While the scope of any residual privilege is the subject of a present controversy between the parties, had the only issue been the admissibility of the JVA report at any trial I would not have considered it appropriate to have made a ruling under s 192A. That is because at this stage of the proceedings it is entirely unclear whether any report or attached witness statement will in fact be sought to be tendered at a final hearing. However, the issue of the admissibility of the report did arise during the course of the present application. That was because, in order to provide a proper evidentiary basis for the plaintiff’s application, counsel for the plaintiff sought to tender the redacted version of the report. That was objected to by the defendant because it asserted and wished to maintain any residual privilege. As a consequence, the issue of the existence of the privilege was in contest upon the application to determine whether, notwithstanding its disclosure, privilege remained. In order to permit the application to be dealt with I refused to admit the disclosed version of the JVA report but admitted, on a confidential basis and subject to conditions, an unredacted version of the JVA report and attached witness statements.
Having regard to the fact that the issue was fully argued I consider it appropriate to identify my reasons for concluding that the manner in which the document was dealt with for the purposes of the application was appropriate not only as an interim measure to protect the defendant’s position pending argument on the application, but also as reflecting the status of the disclosed version of the JVA report under the Evidence Act. The reasons for that conclusion follow.
On the basis that neither the second or third arguments (dealt with below) are made out, the admissibility of the JVA report depends upon the operation of s 122 of the Evidence Act. While confidentiality is at the heart of legal professional privilege: Liberty Funding Pty Ltd v Phoenix Capital Ltd [2005] FCAFC 3; 218 ALR 283 (Liberty Funding) at [22], the Evidence Act recognises that a loss of confidentiality, if done under compulsion of law, will not destroy an entitlement to claim privilege. Section 122(2) provides that client legal privilege does not prevent evidence being presented if the client or party resisting disclosure “has acted in a way that is inconsistent with the client or party objecting to the presenting of evidence…” Section 122(3) provides that a client or party is taken to have so acted if the substance of the evidence has been “knowingly and voluntarily disclosed” to someone else or has been disclosed with the “express or implied consent” of the client or party. Significantly, s 122(5)(a)(iii) provides that a person is not taken to have acted in a manner inconsistent with objecting to the presenting of the evidence only because the substance of the evidence has been disclosed “under compulsion of law”. The defendant contended that disclosure pursuant to ss 68 and 72 was disclosure under compulsion of law.
In my view the disclosure was made under compulsion of law. Sections 68 and 72 in combination clearly compelled the defendant to disclose the JVA report to the plaintiff. This was not a case which involved entering the contest over where the margins of the provision lie in relation to procedural directions compelling early service of expert material that a party wishes to rely upon at trial. That contest is reflected in the line of authority derived from Akins v Abigroup Ltd(1998) 43 NSWLR 539 at 550-552; Sevic v Roarty (1998) 44 NSWLR 287 at 296-297 on the one hand and Liberty Funding at [24]-[27] and the decision of Garling J in Gillies v Downer EDI Ltd [2010] NSWSC 1323 at [44]-[46] on the other. This case is much more straightforward. The defendant had a document which was privileged. The statute compelled the disclosure of that document. It was therefore disclosed under compulsion of law for the purposes of s 122(5)(a)(iii). This means that, notwithstanding the disclosure of the document, client legal privilege precluded its tender on the present application. Therefore the manner in which the document was dealt with on a confidential basis for the purposes of the application was appropriate.
Second argument – does s 75(3) abrogate privilege?
Submissions
Sections 74 and 75 of the CLW Act address the consequences of a failure to disclose documents or information that is required to be disclosed under Ch 5. Section 74 makes it an offence to withhold information or documents from disclosure under the chapter unless the withholding is permitted under the chapter or approved by the court. Section 75 provides:
75Consequences of failure to give document
(1) This section applies if a party fails to comply with a provision of this chapter requiring the party to disclose a document to another party.
(2) The document cannot be used by the party in a later court proceeding based on the claim, or the deciding of the claim, unless the court orders otherwise.
(3)If the document comes to the other party’s knowledge, the document may be used by the other party.
The plaintiff contended that once proceedings had commenced disclosure under ss 68 and 72 was no longer available and that instead the consequences of nondisclosure were addressed by s 75. In particular, the plaintiff contended that s 75(3) permitted the party who is not in default to “use” the document and that this was sufficient to abolish any privilege in the document and permitted the plaintiff to use the unredacted version of the document for any purpose in the proceedings.
The defendant submitted that s 152 of the Legislation Act made it clear that the obligation in s 68 was an ongoing one and that the terms of s 75(3) were not sufficient to abolish any privilege in the document.
Consideration
In my view both aspects of the submissions of the plaintiff must be rejected. First, ss 68 and 72 continued to apply to disclosure even though proceedings have been commenced. Second, s 75(3) does not abolish any privilege which subsists in the document.
First aspect
The submission of the plaintiff suggests a strict partition between the obligation of disclosure in s 68 (and indeed all other disclosure provisions in chapter 5) and ss 74 and 75 which would, on the plaintiff’s submission, deal with all cases of noncompliance. The disclosure provisions would only impose an obligation within the period specified for their compliance (or possibly up to the point where proceedings are commenced) and thereafter noncompliance would be the realm only of ss 74 and 75. The most obvious answer to this contention is s 152 of the Legislation Act which provides, relevantly, that if “under a provision of an Act … an act is required to be done, the obligation to do the act continues until the act is done even if … the provision required the act to be done within a particular period … and the period has ended…” That means that even though the timing requirement in s 68(2) has passed the obligation in s 68(1) continues. For the reasons that follow, no contrary intention is demonstrated by the terms, context or purpose of s 68.
Plainly enough, in light of the terms of s 152 the existence of time limits per se could not be taken as indicating a contrary intention. Rather, those time limits have been included in the context of a legislative drafting assumption that their expiry will not terminate the obligation to which they relate.
Similarly, while the reference to “pre-court procedures” in the title to Ch 5 of the CLW Act provides some basis for a submission that the disclosure regime applies only in the pre‑court period, the structure of Ch 5 and the contents of its provisions are not so clear as to warrant an interpretation that they cease all operation upon the commencement of proceedings.
The absence of any contrary intention in the text of the legislation is reinforced by the absence of any purposive indication to the contrary. If s 68 was temporally limited either to the period specified in s 68(2) or the pre-court period, then a party who failed to disclose in accordance with the terms of s 68 or failed to disclose prior to the commencement of proceedings would no longer have an obligation to do so. There would be no obligation to right the wrong. So far as privileged documents were concerned, the disclosure obligations upon a party once proceedings were commenced would not require their disclosure. If the disclosure obligation in s 68 did not continue it would be open to a party required to disclose documents under the section to fail to disclose them either within the required time period or prior to the commencement of proceedings and then subsequently assert privilege over the documents in a way that defeated the operation of s 72(2). The remedy suggested by the plaintiff is an extremely broad interpretation of the word “use” in s 75(3) which, for the reasons I give below, is not warranted.
Section 68 provides a continuing obligation to disclose even in circumstances where the timeframes in s 68(2) have not been met. Consistently with s 152 of the Legislation Act and what is said at [19]-[20] above, those obligations do not cease upon the commencement of proceedings. To give the CLW Act such an interpretation would be to limit its operation in a way which would not best achieve the purpose of the Act: Legislation Act s 139. That is because the purpose of the Act is to achieve disclosure and it would therefore be inappropriate to interpret the Act in a way which confined or made impractical that obligation. It would be unrealistic to consider that criminal proceedings under s 74 and the non-use provision in s 75 would be equally effective in achieving the disclosure purposes of the Act as those provisions would be if combined with an ongoing obligation of disclosure.
The interpretation of the operation of s 68 is consistent with (but not determined by) the reasons of Katzmann J in Cleary at [59], which recognised that the obligation in s 68 can extend beyond the commencement of court proceedings, although her Honour did not need to address whether it extended beyond the periods set out in s 68(2).
Second aspect
So far as the second aspect of the plaintiff’s argument is concerned, the operation of s 75 must be determined in light of s 171 of the Legislation Act. As pointed out above, that section provides a default position of the preservation of client legal privilege subject to displacement expressly or by manifest contrary intention.
Section 75(3) does not expressly displace client legal privilege. It does not say anything about client legal privilege. Further, it does not by implication demonstrate a manifest intention to displace client legal privilege. The reference to “may be used” is not sufficient to demonstrate an intention that it “may be used despite any client legal privilege that would otherwise attach”. It would not be appropriate to read an ambiguous expression such as “may be used” as sufficient to demonstrate a contrary intention to that in s 171. The context and purpose of the provision does not support the existence of an intention to displace the presumption in s 171, let alone a “manifest” one.
Section 75 provides, in effect, a sanction in proceedings for nondisclosure in accordance with the regime. The most obvious “use” would be through the tendering of the document. It would extend beyond tendering to other “use”. It is not necessary to decide the boundaries of that in this case. The purpose of ss 75(2) and (3) is to draw a distinction between the position of the party who has failed to comply with the disclosure obligation and the other party. It does not affect privilege.
Third argument – has privilege been waived?
Submissions
The third argument was that privilege had been waived by the terms of a letter sent by the solicitors for the Territory on 30 March 2017. That letter was sent on the same date that disclosure of the JVA report was made. The letter provided:
Amendment to pleadings
2.In light of the matters raised in our letter of the same date regarding the Investigative Report (having the same definition as that letter), if your client considers that it is necessary to amend his Statement of Claim, and any amendments are limited to the extent of matters arising from the Investigative Report, our client will consent to your client amending his Statement of Claim on the following conditions:
(1) The amendments are confined to matters arising from the Investigative Report;
(2) The substance of the Investigative Report is not disclosed in the application to amend or otherwise disclosed;
(3) Our office is provided with a proposed copy of the Amended Statement of Claim to confirm the amendments are confined to those matters arising from the Investigative Report, prior to providing written consent.
The letter then went on to indicate that if those terms were agreed then the defendant would pay the plaintiff’s costs of the amendment and dispense with the requirements of “rule 315” in relation to that amendment. The reference to r 315 of the Court Procedures Rules should have been a reference to r 513 which requires that the amending party pay the costs of the amendment and costs thrown away by reason of it.
The plaintiff contended that this letter amounted to a waiver of any residual privilege over the unredacted portions of the JVA report that had been disclosed. The submission of the plaintiff was that waiver occurred because the defendant was inviting the plaintiff, if he wanted to amend the pleadings because of matters contained in the JVA report, to do so without opposition but without saying that the claim for privilege over the report was maintained. The plaintiff contended that this involved inconsistent conduct which authorities such as Attorney-General (NT) v Maurice (1986) 161 CLR 475 (Maurice) identified would amount to a waiver of privilege.
Therefore, even if, contrary to the first argument put by the plaintiff, the defendant prior to that letter retained some privilege that would preclude the use of the unredacted portions in the proceedings, then the letter amounted to a waiver of that privilege.
The defendant contended that the terms of the letter were not inconsistent with maintenance of the privilege and indeed emphasised the intention of the defendant to maintain that privilege.
Consideration
The letter sent on 30 March 2017 relating to the possibility of amendment was sent at the same time as another letter explaining the nondisclosure of the JVA report, conceding that there was an obligation to disclose it and disclosing a redacted copy of the JVA report and its associated witness statements. As indicated in the chronology set out earlier in these reasons, the letter made very clear that a claim for privilege was maintained. The relevant part of the letter said:
14.The Investigative Report and the Venn Witness Statements were obtained for the purposes of providing our client with Legal Services (as defined in my affidavit). The Investigative Report and the Venn Witness Statements, and the information contained within those documents are provided in strict confidence, subject to a statutory obligation of confidence, and subject to a claim for legal professional privilege. Further, the Investigative Report and the Venn Witness Statements are given under compulsion, for the limited purpose of our client complying with its obligations under the CLW Act, and our client in no way waives any claim for confidentiality, a statutory duty of confidence, and privilege by giving those documents to your client.
15.For the avoidance of any doubt, our client will object to your client using, relying, or in any way disclosing the Investigative Report and the Venn Witness Statements in the proceeding.
It is in the context of that firm and unambiguous assertion of an ongoing claim of privilege that the letter relied upon by the plaintiff must be understood.
The defendant found itself in an unenviable position. The defendant had discovered that, for reasons which following investigation remained unclear, it had failed to comply with its statutory obligation to disclose material for a period of almost 10 years. As a model litigant that was a serious default. However, the defendant sought to remedy its default by fully disclosing its knowledge of the circumstances surrounding the nondisclosure, making the required disclosure, resolving the plaintiff’s application for disclosure on terms favourable to the plaintiff and also offering to consent to any required amendments to the statement of claim if new facts were revealed to the plaintiff by the disclosure just made. Understood in context, the letter in relation to amendment clearly did not waive any entitlement to claim privilege. It did not involve any new disclosure or consent to the use of the document by the defendant.
Once the disclosure of the document was made, the plaintiff was already in a position to use the information contained in the document to inform any proposed amendments to his statement of claim. The letter did not change that position. Instead, the letter sought to do two things. First, as a remedial measure in light of the defendant’s previous default in relation to disclosure it made an offer to consent to amendments on terms more favourable to the plaintiff than provided for in the Court Procedures Rules. Second, it sought to do so on terms which were consistent with, and advanced, its ongoing contention that, except to the extent of disclosure compelled by statute, it maintained a claim that the disclosed documents remained confidential and subject to client legal privilege. In maintaining this position the defendant was not acting in a manner which was unfair or inconsistent with the maintenance of his claim to privilege. As a consequence, the plaintiff’s reliance upon the decision in Maurice was misplaced and the appropriate conclusion is that the making of the offer in the letter of 30 March 2017 did not involve any waiver of privilege.
Other contentions
For the purposes of the hearing of the application the plaintiff issued a notice to produce. Privilege was claimed over the documents so produced. The defendant ultimately consented to giving the plaintiff access to two emails that were included in the documents produced. In further submissions following access being provided to those two emails, counsel for the plaintiff submitted that the court should make a finding that, contrary to the affidavit of the defendant’s solicitor, the JVA report had been deliberately rather than accidentally withheld from the plaintiff. Counsel for the plaintiff have also submitted that an order should be made compelling the defendant to make an application under s 75(2) to use the JVA report or witness statements.
So far as the first of these two issues was concerned, it is not in my view open to make any findings that the nondisclosure of the JVA report was intentional in circumstances where the defendant’s solicitor was not cross-examined on his affidavit in which he said that the nondisclosure was an unintentional oversight.
Further, the submission made in relation to the making of an application under s 75(2) had buried within it the contentious proposition that the calling at trial of any witness whose statement had been prepared as part of the JVA report would involve the “use” of that statement. In my view, if such a contentious proposition was to be determined it should be done as part of an application where that issue can be properly argued and discreetly determined rather than as an afterthought following the determination of an application in which the question was not clearly in contest.
Conclusion
In summary I have rejected each of the arguments put forward by the plaintiff that might justify an order requiring service of an unredacted version of the JVA report. I have found that client legal privilege in the document has not been completely abrogated. I have also found that while the plaintiff is entitled to use the document for the purposes of the proceedings he was not entitled to tender it on the present application because it had been disclosed under compulsion of law and hence its disclosure did not have the effect of waving client legal privilege.
The parties requested that they be heard in relation to the orders that should be made in relation to the application and in relation to costs after they had an opportunity to consider my reasons.
The orders of the Court are therefore:
1. The parties are to provide by email to my associate agreed or competing orders to dispose of the Application in Proceedings dated 26 July 2019 by 19 November 2019.
2. The proceedings are listed at 9.30am on 20 November 2019.
3. The listing in the previous order may be vacated if agreed orders disposing of the application are made in chambers and the parties have liberty to provide such orders by email to my associate.
| I certify that the preceding fifty-nine [59] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Justice Mossop. Associate: Date: 14 November 2019 |
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