Director General Department of Community Services v D

[2006] NSWSC 827

Reported Decision: 66 NSWLR 582

New South Wales

Supreme Court

CITATION:	Director-General, Dept of Community Services v D [2006] NSWSC 827
HEARING DATE(S):	14/08/06
JUDGMENT DATE :	17 August 2006
JURISDICTION:	Equity Division Adoptions List
JUDGMENT OF:	Brereton J
DECISION:	Grant access to documents produced by Community Health Centre, subject to masking of privileged entries. Grant access to documents produced by Director-General in respect of which no claim for privilege made. Order that Director-General need not produce admittedly privileged documents. Grant access to other documents produced by Director-General subject to masking of privileged material. Refuse access to documents produced by Director-General from caseworker file which are subject to litigation privilege. Dismiss D’s application for interrogatories.
CATCHWORDS:	FAMILY LAW - Adoption - EVIDENCE - Privilege - Protected Confidences - where birth mother has made confidential statements to medical practitioner whose report she relies on – where report relies on those confidences - whether access should be refused - where issue is welfare of a child - where confider has forensically deployed the confidences via medical report - where disclosure necessary to scrutinise expert opinion which relies on them - Client legal privilege and litigation privilege - where some communications for purpose not of litigation but securing appropriate care - Waiver – where report refers generically to file but privileged entries not reasonably necessary to understand report - where some privileged communications are instructions to expert for report which has been served - INTERROGATORIES - where parties other than birth mother contend that child is settled and thriving with proposed adoptive parents and there is no contrary evidence - where applicant birth mother unaware of respondent proposed adoptive parents' and child's circumstances - where interrogatories seek to identify witnesses from whom documents might be subpoenaed bearing on circumstances of proposed adoptive parents and child - whether parenting capacity of proposed adoptive parents is a real issue - whether proposed interrogatories relate to a real issue in the case - whether fishing - whether necessary.
LEGISLATION CITED:	Adoption Act 2000 (NSW) ss 7, 8(1), 8(2), 67(1)(b), (c), 92, 126, 143, 180 Civil Procedure Act 2005 (NSW), Part 6, ss 56, 57, s 58, 61(1) Evidence Act 1995 (NSW), ss 118, 119, 122, 126, 126A, 126B, 126E Supreme Court Rules 1970 (NSW), Pt 73 r 3 Uniform Civil Procedure Rules 2005 (NSW) r 22.1, 22.2
CASES CITED:	Associated Dominions Assurance Society Pty Ltd v John Fairfax & Sons Pty Ltd (1952) 72 WN (NSW) 250 Australian Blue Metal Limited v Hughes [1960] NSWR 673 Blair v Queanbeyan City Council (1995) 88 LGERA 247 Boyle v Downs [1979] 1 NSWLR 192 Chong v Nguyen [2005] NSWSC 588 D v Director-General, Dept of Community Services (2005) 34 Fam LR 445; [2005] NSWCA 474; BC200511183 Director General, Dept of Community Services v D (2004) 33 Fam LR 555; [2004] NSWSC 1241; BC200409601 Knapp v Harvey [1911] 2 KB 725 Mariott v Chamberlain (1886) 17 QBD 154 McBride v Sandland [1917] SALR 249 Mok v New South Wales Crime Commission [2002] NSWCA 53 Mulley & Marney v Manifold (1959) 103 CLR 341 National Employers Mutual General Insurance Association Limited v Waind and Hill [1978] 1 NSWLR 372 Pelechowski v Registrar Court of Appeal (1999) 198 CLR 435 Percy v General Motors Holden Pty Ltd [1975] 1 NSWLR 289 Potter’s Sulphide Ore Treatment Ltd v Sulphide Corporation Ltd (1911) 13 CLR 101 Seidler v John Fairfax & Sons Limited [1983] 2 NSWLR 390 Sharpe v Smail (1975) 49 ALJR 130 Towney v Minister for Land & Water Conservation for the State of New South Wales (1997) 147 ALR 402 Venacom Pty Limited v Morgan Brooks Pty Ltd [2006] NSWSC 46 WA Pines Pty Ltd v Bannerman (1980) 41 FLR 169
PARTIES:	Director-General, Dept of Community Services (plaintiff) D (first defendant) Mr and Mrs F (second defendants) E (third defendant)
FILE NUMBER(S):	SC 80080/04
COUNSEL:	Mr G W Moore (plaintiff) Mr M W Anderson (first defendant) Ms D M Falloon (second defendants) Ms E T Boyle (third defendant)
SOLICITORS:	I V Knight, Crown Solicitor (plaintiff) Legal Aid Commission of NSW (first defendant) Colquhoun & Colquhoun (second defendants) Kathryn Renshall Solicitors (third defendant)

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION
ADOPTIONS LIST

BRERETON J

Thursday, 17 August 2006.

80080/04 Director-General Department of Community Services v D

JUDGMENT

1 HIS HONOUR: In these contested adoption proceedings, which are set down for final hearing for five days commencing on 4 September 2006, three interlocutory applications require resolution. First, the birth mother D maintains a claim for privilege in respect of documents produced to the court in response to a subpoena issued at the request of the Director-General to a Community Health Centre, to which the Director-General seeks access. Secondly, the Director-General seeks to maintain a claim for privilege in respect of documents the production of which is called for by a subpoena issued to the Department on behalf of D, to which D seeks access. Thirdly, D seeks leave to administer interrogatories to the proposed adoptive parents, Mr and Mrs F.

2 The proceedings already have a lengthy history. The child who is at their centre, E, was born on 25 July 2003, in New South Wales, where D had arrived under a refugee resettlement program from overseas on 25 March that year, already pregnant (although she did not then know it) as a result of having been raped in the overseas refugee camp in which she had until then been living. E was placed in the care of pre-adoptive foster parents from 29 July 2003. D gave formal consent to her adoption on 29 September 2003, and E was placed with Mr and Mrs F on 27 October 2003. She has resided with them ever since.

3 In or about mid-2004, D decided that she wished to revoke her consent and have E returned to her care. The Director-General applied for an adoption order in favour of the Fs, and the matter was set down for hearing before Palmer J commencing on 15 December 2004. D’s application for an adjournment, on the grounds of her then mental state, was refused on 14 December 2004, essentially because of the urgency of resolving the future of E, and the apparent unlikelihood that an adjournment would result in the court being presented with a substantially different state of affairs. The hearing proceeded, and at the conclusion of the hearing on 17 December 2004, his Honour made the orders for which reasons were later published. His Honour concluded – as D had contended and the Director-General conceded – that D had not been in a fit condition to give the consent when she had done so, and declared that her consent was ineffective. Nonetheless, over D’s opposition, his Honour made a consent dispense order on the grounds that D was (at the time of the hearing) in such a physical and mental condition as not to be capable of properly considering the question of whether she should give consent [Adoption Act 2000 (NSW), s 67(1)(b)], and that there was serious cause for concern for the welfare of the child and it was in the best interests of the child to override D’s wishes [s 67(1)(c)]. His Honour then made an adoption order in favour of Mr and Mrs F.

4 D appealed, and following a hearing on 7 December 2005, and the reception of further evidence, the Court of Appeal (Hodgson and Ipp JJA, Hunt AJA) on 22 December 2005 allowed the appeal, set aside the adoption order and remitted the matter to the Equity Division for a new hearing of the adoption application. The appeal succeeded essentially on the basis that further evidence not available at trial showed that D’s condition had improved in a way not previously anticipated, so that there was a likelihood that there would be a positive involvement of her family in the care and upbringing of E if the adoption did not proceed, such as to falsify assumptions upon which the primary judge had proceeded.

5 At a directions hearing on 6 July 2006, after discussion with the parties, I recorded the issues for trial, as follows:

(1) Is D in such a physical or mental condition as not to be capable of properly considering the question of whether she should give consent.

(2) Is there serious cause for concern for the welfare of E such that it is in the best interests of E to override the wishes of D.

(3) If yes to (1) and/or (2), is it in the best interests of E to make a consent dispense order.

(4) If so, will the best interests of E be promoted by adoption, and would an adoption order be clearly preferable in the best interests of E to any other action that could be taken by law in relation to the care of E, having regard in particular to:

· D’s mental health;

· D’s relationship with her family;

· D’s capacity to care for, understand and cope with E, especially with E’s response to separation from the Fs;

· the short and long term effects on E of being removed from the primary care of the Fs;

· the short and long term effects on E of being raised apart from her natural family and culture by persons who are patently ethnically different;

· the alternatives to the making of an adoption order and the likely effect on E in both the short and longer term of changes in E’s circumstances caused by an adoption; and

· the ability of the Fs to foster a relationship between E and D.

6 To this point, no party has sought to amend the list of issues. However, it is apparent from a further directions hearing, conducted on 8 August 2006, that issue (1) has fallen away, in that the Director-General and the Fs and E’s separate representative rely only on Adoption Act, s 67(1)(c) for a consent dispense order, and no longer contend that D is now in such a condition as not to be capable of properly considering the question of whether she should give consent.

7 It is clear that there will be a very live issue as to whether the grounds for making a consent dispense order under s 67(1)(c) are established and whether such an order should be made. If no consent dispense order is made, it will follow that an adoption order cannot be made. If the court refuses an application for an adoption order, it may make such orders for the care and custody of the child concerned as it thinks fit [Adoption Act, s 92], and in that event, the Director-General and the Fs seek an order that the Fs have parental responsibility and sole care and custody of the child, that the child may be known by the Fs’ surname, and that the child have contact with D face-to-face twice a year, by telephone twice a year, by exchange of letters and photographs, and otherwise as agreed between the Fs and D. D, on the other hand, proposes that E be returned to her care.

8 The objects of the Adoption Act are expressed to include [Adoption Act, s 7]:

(a) to emphasise that the best interests of the child concerned, both in childhood and later life, must be the paramount consideration in adoption law and practice,
(b) to make it clear that adoption is to be regarded as a service for the child concerned,
(c) to ensure that adoption law and practice assist a child to know and have access to his or her birth family and cultural heritage, …

9 In making a decision about the adoption of a child, the court is required to have regard (as far as is practicable or appropriate) to the principles specified in Adoption Act, s 8(1), as follows:

(a) the best interests of the child, both in childhood and in later life, must be the paramount consideration,

(b) adoption is to be regarded as a service for the child, not for adults wishing to acquire the care of the child,

(c) no adult has a right to adopt the child,

…

(e) the child’s given name or names, identity, language and cultural and religious ties should, as far as possible, be identified and preserved, …

10 In determining the best interests of the child, the court is required to have regard to, inter alia [s 8(2)]:

(e) any wishes expressed by either or both of the parents of the child,
(f) the relationship that the child has with his or her parents and siblings (if any) and any significant other people (including relatives) in relation to whom the decision maker considers the question to be relevant,
(g) the attitude of each proposed adoptive parent to the child and to the responsibilities of parenthood,
(h) the nature of the relationship of the child with each proposed adoptive parent,
(i) the suitability and capacity of each proposed adoptive parent, or any other person, to provide for the needs of the child, including the emotional and intellectual needs of the child,
…
(k) the alternatives to the making of an adoption order and the likely effect on the child in both the short and longer term of changes in the child’s circumstances caused by an adoption, so that adoption is determined among all alternative forms of care to best meet the needs of the child.

11 Under Adoption Act, s 126, the court may, in the hearing of any proceedings or in determining any application or matter under the Act, act on any statement, document, information or matter that may in its opinion assist it to deal with the matter of the proceedings or before it for determination, whether or not it would be admissible in evidence.

Director-General’s Application for Access to Documents Produced Under Subpoena by Community Health Centre and D’s claim for privilege

12 By Notice of Motion filed in court on 8 August 2006, the Director-General seeks, inter alia, access to documents produced under subpoena by the Community Health Centre. By Notice of Motion filed on 8 August 2006 and amended on 14 August 2006, D seeks, inter alia, an order refusing access to that material, or alternatively that the subpoena be set aside. The subpoena in question was issued at the request of the Director-General addressed to the Community Health Centre, and requires production of:

All history cards, clinical notes, treatment records, discharge summaries, nurses’ minutes, diagnostic test results, correspondence, doctor’s and specialist’s reports, psychometric test records, operation schedules, operation notes, x-rays, x-ray reports, medical reports, correspondence, out-patient treatment records, and all other documentation and information pertaining to [D] for all periods during which she has received treatment.

13 No basis has been shown, nor advanced, for setting aside the subpoena. The question is one of access. D opposes access to:

(a) The whole of the notes produced by the Community Health Centre, on the grounds that they record communications made by her in confidence to a confidant acting in a professional capacity where there was either an express or an implied obligation not to disclose the contents of those communications, so as to attract “protected confidence privilege” under Evidence Act 1995 (NSW), s 126B; and

(b) The notes for the dates 22 December 2004, 14 February, 15 February, 16 February, 22 February (1300 and 1315), 14 April, 15 April, 6 May, 29 June at 1200, 20 July, 8 December 2005, 10 January, 12 January, 19 January, 6 March (second entry), 27 March (second entry), 28 March, 24 May, 26 May 2006, on the grounds that they are confidential communications between her and another person, or between her solicitor, her and another person, for the dominant purpose of providing legal advice or professional legal services relating to the proceedings, so as to fall within client/legal privilege under Evidence Act s 118 or litigation privilege under Evidence Act s 119.

14 As is well established, the court has a discretion as to whether and to what extent access to documents produced on subpoena is to be granted [National Employers Mutual General Insurance Association Limited v Waind and Hill [1978] 1 NSWLR 372], and access will not be granted to documents which are privileged, over the objection of the party whose privilege it is.

15 Evidence Act, s 126B, relevantly provides as follows:

126B Exclusion of evidence of protected confidences

(1) The court may direct that evidence not be adduced in a proceeding if the court finds that adducing it would disclose:
(a) a protected confidence, or
(b) the contents of a document recording a protected confidence, or
(c) protected identity information.
(2) The court may give such a direction:


(a) on its own initiative, or

(b) on the application of the protected confider or confidant concerned (whether or not either is a party).

(3) The court must give such a direction if it is satisfied that:


(a) it is likely that harm would or might be caused (whether directly or indirectly) to a protected confider if the evidence is adduced, and

(b) the nature and extent of the harm outweighs the desirability of the evidence being given.

(4) Without limiting the matters that the court may take into account for the purposes of this section, it is to take into account the following matters:


(a) the probative value of the evidence in the proceeding,

(b) the importance of the evidence in the proceeding,
(c) the nature and gravity of the relevant offence, cause of action or defence and the nature of the subject matter of the proceeding,
(d) the availability of any other evidence concerning the matters to which the protected confidence or protected identity information relates,

(e) the likely effect of adducing evidence of the protected confidence or protected identity information, including the likelihood of harm, and the nature and extent of harm that would be caused to the protected confider,

(f) the means (including any ancillary orders that may be made under section 126E) available to the court to limit the harm or extent of the harm that is likely to be caused if evidence of the protected confidence or the protected identity information is disclosed,

(g) if the proceeding is a criminal proceeding—whether the party seeking to adduce evidence of the protected confidence or protected identity information is a defendant or the prosecutor,
(h) whether the substance of the protected confidence or the protected identity information has already been disclosed by the protected confider or any other person.
(5) The court must state its reasons for giving or refusing to give a direction under this section.

16 “Protected confidence” is defined by s 126A to mean a communication made by a person in confidence to another person in the course of a relationship in which the confidant was acting in a professional capacity, and when the confidant was under an express or implied obligation not to disclose its contents, whether or not the obligation arises under law or can be inferred from the nature of the relationship between the person and the confidant.

17 At the outset, it is to be observed that s 126B is concerned with the adducing of evidence in a proceeding, and not with the granting of access to documents produced on subpoena. However, as it would defeat the purpose of s 126B to grant access to documents which record a protected confidence, I accept that the provisions of s 126B are relevant to the exercise of the court’s discretion whether or not to grant access to documents produced on subpoena. It would generally be inappropriate to grant access to the documents in question, if the court were likely to make a s 126B direction at the hearing.

18 In an affidavit read in support of the claim for protected confidence privilege, D’s solicitor deposes:

The whole of the notes produced by … Community Health Centre record communications made by client in confidence to a confidant acting in a professional capacity where there was either an express or an implied obligation not to disclose the contents of those communications.

The first defendant has provided reports from the treating psychiatrists and has submitted to examination by a single expert appointed by the court. It is submitted that the likelihood of harm being caused by the disclosure of the protected confidences of my client would outweigh the desirability of the evidence in the proceedings. It is submitted that there is available better evidence of my client’s state of mental health than her confidences with her Community Health Centre contact.

19 The parties accepted that for the purpose of ruling on this issue I was entitled to examine the documents produced, and I have done so. They record, in part, statements made by D. They also include records of the observations of medical practitioners, observations made by social workers, reports of Dr Harris of 19 April 2005, 23 August 2005 and 12 April 2006, and instructions to Dr Harris in connection with his reports. I am prepared to accept that communications made by D to medical practitioners, social workers and other health professionals at the Community Health Centre were “protected confidences”, within the definition of that term in s 126A. However, notwithstanding D’s solicitor’s affidavit, such protected confidences comprise only a part, and not the whole, of the material produced by the Community Health Centre.

20 On behalf of D, there has been served and filed in the proceedings an affidavit, which it is proposed to read at the hearing, of Dr Harris, who saw her at the Community Health Centre, and who expresses an opinion as to her condition. His affidavit annexes his report of 12 April 2006, in which Dr Harris wrote (emphasis added):

In response to your letter of 3rd April 2005 for a further report regarding [D] I have made the following report. In making this report I have had access to her notes detailing her care at the … community health centre by myself and her case managers .

21 The reference to “a further report” directs attention to his report of 23 August 2005, in which Dr Harris states (emphasis added):

I am making this report in regards to [D] on the basis of my clinical knowledge of her as her treating psychiatrist since December 2004, discussions with hospital social workers and staff active in her care prior to that time, the medical records from … community health centre and notes therein of [D’s] case manager, … and myself .

22 One of the issues in the proceedings involves D’s mental health [see issue 4, first bullet point, in [5] above]. The material produced by the Community Health Centre has prima facie relevance to that issue. D has deployed the material contained in the notes forensically, albeit indirectly, through tendering the evidence of Dr Harris, which at least in part relies on the contents of the notes. At stake in these proceedings is the welfare of a child, and the importance of the court having relevant evidence bearing on that matter outweighs the interest of a party in a protected confidence. While there is other evidence available as to D’s mental health, it is secondary evidence, at least some of which uses the subject notes as a source. In those circumstances it would be unsatisfactory and unjust if the notes themselves were not to be available, so that opinions based on them could be scrutinised. There is no evidence that adducing evidence of the protected confidence would cause any harm. As such evidence of D’s condition is to be adduced indirectly through Dr Harris in any event, I am unpersuaded that adducing evidence of such protected confidences as are contained in the notes would have any relevant consequence, beyond those that would be occasioned by the adducing of Dr Harris’s evidence. As Mr Moore has pointed out, it is unnecessary to resort to s 126E for ancillary orders to limit the harm or extent of harm likely to be caused if evidence of the protected confidence is disclosed, since the hearing is required to be in camera [Adoption Act, s 119], access to court records is limited [s 143], and the publication of the name of any party or child or any matter reasonably likely to enable them to be identified is a punishable offence [Adoption Act, s 180].

23 Before s 126B, the confidentiality of a document, in the absence of legal professional privilege, was no objection to its production or admissibility. Section 126B does not create a “privilege”, properly so called, but confers on the court a discretion by which it may direct that evidence of a confidential communication not be adduced, which is to be exercised having regard to the various relevant factors, including those listed in s 126B(4). The mere fact of confidentiality gives rise to the discretion, but it is clear from the factors listed in s 126B that the mere fact of confidentiality does not create an entitlement to a favourable exercise of that discretion.

24 In this case, the only matter that weighs in favour of prohibiting adducing evidence of the protected confidences is the mere fact that they were confidential. There is nothing in the evidence so far available that would weigh against permitting evidence of them to be adduced notwithstanding their confidentiality, and significant factors that favour permitting their disclosure, of which the most significant are that, through the evidence of Dr Harris, D is herself making indirect forensic use of them; that proper scrutiny of Dr Harris’ evidence requires that the source material on which he relied be available; that there is no evidence that any harm will be occasioned by their disclosure; that the confidential nature of the proceedings will in any event minimise their dissemination; and, above all, that these proceedings concern the welfare of a child.

25 On the material presently available I would therefore refuse to make a direction under s 126B, and for the same reasons I would not withhold access to the Community Health Centre records insofar as they contain protected confidences.

26 As to the claim for client legal privilege and/or litigation privilege, D’s solicitor’s affidavit deposes that those entries to which I have referred “are confidential communications between my client and another person or between myself and another person and/or my client for the dominant purpose of providing legal advice to my client, or for the dominant purpose of my client being provided with professional legal services relating to these proceedings. It is therefore submitted that this information is privileged and objection is properly taken by client “.

27 Evidence Act, s 118, provides as follows:

Evidence is not to be adduced if, on objection by a client, the court finds that adducing the evidence would result in disclosure of:

(a) a confidential communication made between the client and a lawyer, or

(b) a confidential communication made between 2 or more lawyers acting for the client, or

(c) the contents of a confidential document (whether delivered or not) prepared by the client or a lawyer,
for the dominant purpose of the lawyer, or one or more of the lawyers, providing legal advice to the client.

28 Section 119 provides as follows:

Evidence is not to be adduced if, on objection by a client, the court finds that adducing the evidence would result in disclosure of:

(a) a confidential communication between the client and another person, or between a lawyer acting for the client and another person, that was made, or

(b) the contents of a confidential document (whether delivered or not) that was prepared,

for the dominant purpose of the client being provided with professional legal services relating to an Australian or overseas proceeding (including the proceeding before the court), or an anticipated or pending Australian or overseas proceeding, in which the client is or may be, or was or might have been, a party.

29 Once again, although the stage has not yet been reached when evidence is being adduced at a hearing, the court’s discretion to grant access to documents produced on subpoena is informed by the provisions of ss 118 and 119, all the more so now that they are effectively incorporated in Uniform Civil ProcedureRules 2005 (NSW), so as to apply them to the pre-trial inspection of documents [cf Mok v New South Wales Crime Commission [2002] NSWCA 53, [21]].

30 I have examined the entries in the notes in respect of which D’s solicitor’s affidavit propounds a claim of privilege. Subject to the question of waiver, to which I shall come, I would uphold the claim for litigation privilege in respect of the entry for 22 December 2004 (1115 and 1300). I would uphold the claim in respect of the entries for 14 February 2005 (0910 and 1400), down to but not including the stamp “INTERPRETER”, and reject the claim in respect of the entry “INTERPRETER” and following: it records medical observations, not privileged communications. I would uphold the claim in respect of entry for 15 February. I would reject the claim in respect of the entries of 16 February: the 1700 entry records communications the dominant purpose of which was the care of D and not the provision of professional legal services, and the 1800 entry records communications between the social worker and an interpreter, which does not fall within s 119. I would uphold the claim in respect of the entries on 22 February (1300 and 1315 only), 14 April, 15 April, and 6 May. I would reject the claim in respect of the entry for 29 June (1200): although it records a communication between D’s solicitor and the social worker, its dominant purpose appears to be obtaining appropriate care for D, and not the provision of professional legal services. I would uphold the claim in respect of the entry for 20 July. I would reject the claim in respect of the entry for 8 December 2005: the dominant purpose of the communication which it records appears to be obtaining appropriate care for D, and not the provision of professional legal services. I can find no entry for 10, 12 or 19 January 2006, and therefore reject the claim in respect of them; but if they have been omitted from the material produced and are found, I will entertain a further application in respect of them. I would reject the claim in respect of the entry for 6 March: the dominant purpose of the communication which it records appears to relate to D’s care, and not the provision of professional legal services, even though the communication was one between the solicitor and the caseworker. I would uphold the claim in respect of the second entry for 27 March 2006, and the entry for 28 March 2006. I would reject the claim in respect of the entry for 24 May 2006: the dominant purpose of the communication which it records appears to be obtaining appropriate care for D, though it includes a communication between the solicitor and the caseworker. I would also reject the claim in respect of 26 May 2006: the dominant purpose of the communication which it records appears to have been to obtain appropriate therapy for D.

31 Mr Moore, for the Director-General, next submits that, to the extent that a claim for privilege is made out, it has been waived. For this he relies on the circumstance that, as Dr Harris’s reports reveal, all the notes have been disclosed to Dr Harris, and Dr Harris has used the notes for the purposes of preparing his reports, at least one of which is to be relied on in the proceedings, and the others are reasonably necessary to understand that one.

32 The disclosure of the notes to Dr Harris does not of itself constitute consent under s 122(2) of the Evidence Act, because any disclosure to Dr Harris was itself made in the course of a confidential communication to him [see s 122(2)(a)]. However, the service of Dr Harris’s report takes the matter further. Dr Harris’s report was originally itself privileged under s 119. However, the privilege which formally attached to it has now been lost under s 122, by its service in the proceedings. In those circumstances, it is permissible to adduce evidence of other otherwise privileged communications or documents, if they are reasonably necessary to enable a proper understanding of the report [Evidence Act, s 126].

33 In Towney v Minister for Land & Water Conservation for the State of New South Wales (1997) 147 ALR 402, Sackville J said (at 414):

Any precise assessment of the scope of s 126 must await further decisions. However, I think it fair to say that, if a privileged document is voluntarily disclosed for forensic purposes, and a thorough apprehension or appreciation of the character, significance or implications of that document requires disclosure of source documents, otherwise protected by client legal privilege, ordinarily the test laid down by s 126 of the Evidence Act will be satisfied.

34 However, his Honour added that a mere reference to a privileged source document, of itself, does not necessarily result in loss of the privilege attaching to the whole or even part of the source document, so that the circumstances of the particular case must be scrutinised:

It may be perfectly clear, for example, that the source document has been referred to for a very limited purpose, and that no further reference to the source document could assist in a proper understanding of the report. Again, a source document may be very clearly divided into discrete parts, and only one part might conceivably be relevant to gaining a proper understanding of the report. It could not be said in these circumstances that inspection of the other portions of the source document is reasonably necessary to enable a proper understanding of the report.

35 The communications of 14 and 15 April 2005, in respect of which I would otherwise have upheld the claim for privilege, contain instructions for Dr Harris’s report of 19 April 2005. In my view, inspection of those entries is reasonably necessary to enable a proper understanding of that report. Otherwise, however, the entries in respect of which I would uphold the claim for privilege do not, at least at this stage, appear reasonably necessary to enable a proper understanding of Dr Harris’s reports. Should this position change with the emergence of further evidence, an application for access to that part of the documentation can be renewed.

36 The documents produced by the Community Health Centre will be provided to counsel for D, so that those parts, in respect of which I have (a) upheld the claim for privilege and (b) rejected the waiver argument, may be masked. Access will then be granted to the other parties to those documents in their masked form.

Director-General’s claim for privilege in respect of documents produced on subpoena to Department

37 At the request of D, a subpoena was issued directed to the Director-General for production of:

1. Copies of all documents, correspondence, records, reports, medical and psychological reports, hospital notes, refuge notes, file notes, applications, assessments and all other documentation in connection with or relating to [E, D, Mr F and Mrs F].
2. Copies of any departmental policies, memoranda, protocols, or guides relating to the adoption of children, specifically any policies, guidelines, internal memoranda and/or protocols in relation to trans-racial adoption, and in relation to placement of children of minority racial and cultural backgrounds in out-of-home care from 1 January 2000 to date.

38 The Department has produced all documents in its possession, custody or power called for by paragraph (2) of the subpoena, and access will be granted to them. In respect of the documents called for by paragraph (1):

· The Department has, by arrangement with counsel for D, retained without producing fourteen volumes of documents and four binders of documents (comprised in exhibit LG 1 of the affidavit of Ms Lyndal Goodwin sworn 11 August 2006) said to have been made or created for the dominant purpose of providing legal advice and professional legal services to the Department relating to the current proceedings, the proceedings before Palmer J and the proceedings in the Court of Appeal. The Director-General opposes access to those documents, and D does not press a claim for access to them.

· A bundle of documents (marked LG-A in the affidavit of Ms Goodwin sworn 14 August 2006), of which parts have been highlighted in yellow, which parts are said to contain records of confidential communications between case workers, legal officers of the Department and officers from the Crown Solicitor’s Office and counsel for the dominant purpose of providing legal advice and professional legal services to the Director-General in relation to these proceedings, together with an edited version of those documents from which the parts marked in yellow in the original have been removed. The Director-General opposes access to the parts marked in yellow, but otherwise does not oppose access.

· A bundle of documents (marked LG-B in the affidavit of Ms Goodwin of 14 August 2006) extracted from a caseworker’s file said to comprise confidential communications between caseworkers, legal officers of the Department, officers from the Crown Solicitor’s Office and counsel, for the dominant purpose of providing legal advice and professional legal services to the Director-General. The Director-General opposes access to these documents.

· A bundle of documents in respect of which no claim for privilege is made, and to which access will in any event be granted.

39 I have examined exhibit LG-A. Subject to any question of waiver, I would uphold the claims in respect of Ms Whitbread’s file note of 31 October 2005, Ms Whitbread’s facsimile message of 20 January 2006, Ms Griffin’s email of 19 January 2006, Ms Whitbread’s file note of 19 January 2006, and the briefing note dated 12 January 2005 (sic, but it must be 2006). I would reject the claim in respect of the last paragraph of Ms Whitbread’s file note of 10 January 2005: the dominant purpose of the communication was to make arrangements for contact. I would uphold the claim in respect of the email of 1 February 2005. I would reject the claim in respect of the case review form of 8 September 2005, and in respect of Ms Whitbread’s email of 20 April 2006: mere references to intentions to consult lawyers do not attract privilege, and the dominant purpose of the email was to arrange contact. I would also reject the claim in respect of Ms Whitbread’s email of 9 March 2006: it does not involve legal advice, or the provision of professional legal services, but the mere passage of information. I would also reject the claim in respect of Ms Carpenter’s email of 14 February and Ms Griffin’s response: their dominant purpose was neither legal advice nor provision of professional legal services relating to proceedings, but the involvement of Ms Carpenter in a support role for the Fs. I would uphold the claim in respect of Ms Ames’ memorandum of 13 September 2004, and in respect of Ms Whitbread’s file note of 24 September 2004.

40 The material in exhibit LG-B appears, prima facie on a cursory inspection, to comprise correspondence between the caseworker and the lawyers, including copies of inter-partes correspondence forwarded to the case worker for information or comment, and to be entitled to client legal privilege under s 118 and/or litigation privilege under s 119. It also includes some communications with the Fs, which fall within s 119. However, there are three pages of photographs which do not appear to be privileged, and a brochure on the overseas refugee camp which also does not appear to be privileged.

41 Mr Anderson, for D, submits that privilege has been waived by the service of affidavits of Ms Whitbread sworn 7 August 2006, Ms Waterman sworn 13 July 2006, and Ms Klein sworn 7 August 2006. Ms Waterman annexes and refers to contact reports in respect of a number of contact visits. The documents to which she refers are not the subject of a claim for privilege and are not included in LG-A or LG-B. Ms Waterman’s affidavit involves no relevant waiver.

42 Ms Klein was a caseworker allocated to D and E, and also (coincidentally) to the Fs. Her evidence is said to be based upon her involvement with D, E and F “and my recollection of events assisted by my reading of the said records”. She deposes “I have previously perused the Department’s records compiled during the time that I was employed as an adoptions case worker, as they relate to E, D and F”. She was so employed during the period October 2001 to March 2004. None of the documents in respect of which there is a claim for privilege relates to that period; all post-date March 2004. Although the use of privileged documents to refresh memory operates as a waiver [s 122(6)], Ms Klein’s evidence involves no waiver of privilege in respect of the subject documents, because none of them were compiled during the time she was employed as a caseworker and they are not within the class of those to which she had resort to refresh her memory.

43 Ms Whitbread has been involved in the matter since approximately July 2003. She deposes to contact visits from October 2004 onwards, and annexes and refers to copies of her notes of the contact occasions. Many of the notes in LG-A are notes of Ms Whitbread, and LG-B appears to be her file, or at least largely so. However, her affidavit deals with specific incidents, the notes of which she annexes, and she does not refer to the file generically. The material before me does not show that she has refreshed her memory from the material in LG-A or LG-B. Nor does it establish any waiver of privilege which would attract s 126.

44 The edited version of LG-A will be returned to counsel for the Director-General, in order that a modified version, complying with these rulings, may be substituted. Access will then be granted to the modified version of LG-A. Access will be granted to the brochure about the refugee camp and the photographs in LG-B, but not otherwise to LG-B.

D’s application for leave to administer interrogatories

45 By Notice of Motion filed on 5 July 2006, D sought an order that the Fs answer some twenty-four interrogatories, the general substance of which relates to the physical, mental and emotional welfare of Mrs F, Mr F and the mental, physical and emotional welfare and education of E. The application now pressed before the court, by the Amended Notice of Motion filed on 14 August 2006, reduces the interrogatories to five in number, as follows:

Regarding Mrs F
1. Has Mrs F attended any doctor, counsellor, psychologist, or psychiatrist since the placement of E and if so please specify the reason for the attendance, treatment provided; the name and address of the doctor, counsellor, psychologist, or psychiatrist.
Regarding Mr F
2. Has Mrs F attended any doctor, counsellor, psychologist, or psychiatrist since the placement of E. If so please specify the reason for the attendance, treatment provided; the name and address of the doctor, counsellor, psychologist, or psychiatrist.
Regarding E
3. If E has suffered from an illness and consulted any professional please specify the name and address of the treating professional with whom E consulted.
4. Please specify the names and addresses of E’s treating Doctor(s) including any General Practitioner or Specialist(s).
5. Please specify the name and address of any day care or pre-school E attends and provide any reports from such day care or pre-school.

46 The court will not order a party to answer interrogatories unless the court is satisfied that the order is necessary at the time it is made [UCPR, r 22.1(4)]. The requirement of necessity has consistently been interpreted as meaning “necessary in the interests of a fair trial” [Boyle v Downs [1979] 1 NSWLR 192, 204-5; Percy v General Motors HoldenPty Ltd [1975] 1 NSWLR 289; Pelechowski v Registrar Court of Appeal (1999) 198 CLR 435; Chong v Nguyen [2005] NSWSC 588]. Interrogatories are objectionable if they do not relate to matters in issue in the proceedings [UCPR r 22.2(a); Potter’s Sulphide Ore Treatment Ltd v Sulphide Corporation Ltd (1911) 13 CLR 101, 110- 111; Australian Blue Metal Limited v Hughes [1960] NSWR 673; Seidler v John Fairfax & Sons Limited [1983] 2 NSWLR 390, 393; Sharpe v Smail (1975) 49 ALJR 130, 133], and even if directed to matters in issue, the requirement of necessity will not be satisfied if those matters are already admitted or could readily be proved by other means [McBride v Sandland [1917] SALR 249; Venacom Pty Ltd v Morgan Brooks Pty Ltd [2006] NSWSC 46]. Nor is it satisfied if the matters to which they relate, though relevant, are not material.

47 Also relevant to the present issues are the provisions of Civil Procedure Act 2005 (NSW), Part 6. The court is required when exercising any power given to it by that Act or rules of court to seek to give effect to the overriding purpose of the Act, namely to facilitate the just, quick and cheap resolution of the real issues in the proceedings [CPA, s 56]. Proceedings in the court are to be managed having regard to the objects of the just determination of the proceedings, the efficient disposal of the business of the court, the efficient use of available judicial and administrative resources, and the timely disposal of the proceedings at a cost affordable by the respective parties [CPA, s 57]. In deciding whether to make any order or direction for the management of the proceedings, the court must seek to act in accordance with the dictates of justice, and for the purpose of determining what are the dictates of justice may have regard, as well as to the provisions of ss 56 and 57, to, inter alia, the degree of injustice that would be suffered by the respective parties as a consequence or any order or direction and such other matters as the court considers relevant in the circumstances [CPA, s 58]. The court may give such directions as it thinks fit for the speedy determination of the real issues between the parties to the proceedings [CPA, s 61(1)].

48 These provisions emphasise that, while the dictates of justice are to be obeyed, courts should manage cases and interlocutory procedures so that attention is focussed on resolution of the real issues.

49 Interrogatories must generally be relevant to matters in issue between the parties and to the proof of each party's case, so that interrogatories of a “fishing” nature - when a party seeks to investigate matters beyond those matters raised by the pleadings or by their respective cases, merely in the hope of finding something to assist the party interrogating to make out some case, not limited to achieving a clear and defined end - are not permitted [Associated Dominions Assurance Society Pty Ltd v John Fairfax & Sons Pty Ltd (1952) 72 WN (NSW) 250, 254 (Owen J); see also WA Pines Pty Ltd v Bannerman (1980) 41 FLR 169; Mulley & Marney v Manifold (1959) 103 CLR 341, 345; Blair v Queanbeyan City Council (1995) 88 LGERA 247]. As Owen J said [Associated Dominions Assurance Society Pty Ltd v John Fairfax & Sons Pty Ltd (1952) 72 WN (NSW) 250, 254]:

A “fishing expedition” in the sense in which the phrase has been used in the law means, as I understand it, that a person who has no evidence that there are a particular kind of fish in a pool desires to be at liberty to drag it for the purpose of finding out whether there are any there or not.

50 Generally speaking, interrogatories which seek evidence as distinct from facts, and in particular to identify witnesses, are not permitted [Mariott v Chamberlain (1886) 17 QBD 154, 163, 164; Knapp v Harvey [1911] 2 KB 725, 732].

51 It is an important part of the case for the Director-General, the Fs and the Separate Representative, all of whom support an adoption order in favour of the Fs, that E is not only settled but thriving in the care of the Fs. If it appeared that E was not thriving but struggling in the care of the Fs, that would undermine a significant element in the case against D, and could significantly impact on the ultimate decision. Because of the history of E’s care at birth, and the way in which the case developed, there was little information at the original trial available in relation to the Fs’ parenting capacity, and D does not have access to information about the current condition of the Fs, or for that matter of E. That circumstance has caused me anxiously to consider whether the interests of justice dictate that she should be permitted to explore those matters, so as to be able to test this aspect of the case against her. If there were any basis for supposing that there were matters affecting the Fs’ parenting capacity, or E’s welfare, which could affect the decision in that way, I would be inclined to permit some further inquiry – though not necessarily in the form of the proposed interrogatories.

52 However, there does not appear to be any such basis. Although conceivably the parenting capacity of the Fs could hypothetically be an issue, in which case facts pertaining to their physical, mental or emotional condition could be relevant, there is nothing in the material so far in this case to suggest that there is a real issue as to their parenting capacity.

53 While this judgment has to be made on limited evidence, without knowing what answer the proposed interrogatories would elicit, there is at least some material which enables an informed assessment to be made. The issues for trial which have been settled [see [5] above] do not include the Fs’ parenting capacity, physical, mental or emotional condition, nor E’s progress or present condition. Of considerable significance in this respect is the opinion of the court expert, Dr Robinson, who has recently reported:

E presented as a sweet-natured nearly three year old who has marked developmental competencies: physically, cognitively and emotionally. … It appeared at this assessment, as was also evident when E was seen with the adopting parents by Jane Carpenter and Dr Miltch, the Fs have been successfully parenting E in all the relationship domains required for parenting.

54 Dr Robinson’s opinion on this matter will not decide the ultimate outcome of the case. But on this interlocutory application it does lend weight to the view that neither the parenting capacity of the Fs, nor E’s health and education, is a real issue. Although D’s counsel has not expressly conceded that there is no bona fide issue as to the Fs’ parenting capacity, the only matters which he has identified as potentially relevant in this category are (1) their ability to foster and encourage a relationship between E and D; and (2) two incidents, now some years ago, which might well have traumatised Mrs F, in respect of which there is little evidence. The Fs’ ability to foster a relationship between E and D is not addressed by the proposed interrogatories, and while it is conceivable that the interrogatories might elicit evidence of ongoing problems for Mrs F from the incidents, if there are any, the report of the court expert, Dr Robinson, suggests that they are not ongoing concerns and that Mrs F is stable. Mr Anderson has pointed to nothing to suggest that there is any current problem with E’s welfare, save that there is evidence that the Fs occasionally consult a social worker for advice in respect of issues with E. I do not take that to indicate that there are any problems, but that they seek expert advice.

55 In my opinion, therefore, the proposed interrogatories are “fishing”, in that they are designed to find out whether or not there is any or sufficient information on which D could put the Fs parenting capacity into issue, without any idea whether any such information exists.

56 Further, each of the interrogatories in question here, in effect seeks to identify a potential witness or witnesses. Their real purpose appears to be to identify sources from which documents might be obtained on subpoena. Moreover, as they do not relate to a real issue in the case, they are not “necessary”. I therefore decline to order that they be answered.

57 Nonetheless, I observe that each party to proceedings in the court under the Adoption Act has a duty to the court to make known fully and frankly all matters relevant to the making of an adoption order, whether those matters tend to support or tend not to support making the order [SCR, Pt 73 r 3]. Any matters which suggested that E had encountered or was encountering any problems in her current placement with the Fs would potentially be relevant to the making of an adoption order, and ought to be disclosed.

Conclusion

58 In respect of the material produced on subpoena by the Community Health Centre, although it contains some protected confidences, on the material presently available I would, having regard to the considerations specified in s 126B(4), refuse to make a direction under s 126B, and I would not withhold access to the Community Health Centre records insofar as they contain protected confidences. I uphold some and reject others of D’s claims for client legal and/or litigation privilege. In respect of two entries in respect of which I would uphold the claim, but not otherwise, I hold that there has been a waiver pursuant to s 126. The documents produced by the Community Health Centre will be provided to counsel for D, so that those parts, in respect of which I have (a) upheld the claim for privilege and (b) rejected the waiver argument, may be masked. Access will be granted to the other parties to those documents in their masked form.

59 In respect of the material called for on subpoena to the Department, access will be granted to the documents produced under paragraph (2) of the subpoena, and to the documents produced under paragraph (1) in respect of which no claim for privilege is made. The Department will be excused from producing the fourteen volumes and four binders of documents comprised in exhibit LG 1 of the affidavit of Ms Lyndal Goodwin sworn 11 August 2006. I uphold the claim for privilege to most but not all of the yellow-marked portions of the documents comprised in exhibit LG-A to the affidavit of Ms Goodwin sworn 14 August 2006. I uphold the claim for privilege to most but not all of the documents comprised in exhibit LG-B to the affidavit of Ms Goodwin sworn 14 August 2006. The edited version of LG-A will be returned to counsel for the Director-General, in order that a modified version, complying with these rulings, may be substituted, and access will be granted to the modified version of LG-A. Access will be granted to the brochure about the refugee camp and the photographs in LG-B, but not otherwise to LG-B.

60 Each of the proposed interrogatories is a “fishing” interrogatory; their effect is to identify a potential witness or witnesses; their real purpose appears to be to identify sources from which documents might be obtained on subpoena; and as they do not relate to a real issue in the case, they are not “necessary”. I therefore decline to order that they be answered. Nonetheless, I observe that each party to proceedings in the court under the Adoption Act has a duty to the court to make known fully and frankly all matters relevant to the making of an adoption order, whether those matters tend to support or tend not to support making the order [SCR Pt 73 r 3]. Any matters which suggested that E had encountered or was encountering any problems in her current placement with the Fs would potentially be relevant to the making of an adoption order, and ought to be disclosed.

Orders

61 I grant access to the documents produced on subpoena by the Community Health Centre (Packet 5), provided that Counsel for D shall have first access for the purposes of masking the following entries, to which the other parties shall not have access:

(a) the entry for 22 December 2004 (1115 and 1300),

(b) the entries for 14 February 2005 (0910 and 1400), down to but not including or following the stamp “INTERPRETER”;

(c) the entry for 15 February 2005;

(d) the entries for 22 February (1300 and 1315 only), and 6 May 2005;

(e) the entry for 20 July 2005;

(f) the second entry for 27 March 2006, and the entry for 28 March 2006.

62 I reserve leave to all parties to make further application in respect of any entries for 10, 12 or 19 January 2006.

63 I grant access to the documents produced under paragraph (2) of the subpoena to the Director-General (Packet 6), and to the documents produced under paragraph (1) in respect of which no claim for privilege is made (Packet 8). I order that the Director-General need not produce the fourteen volumes and four binders of documents comprised in exhibit LG 1 of the affidavit of Ms Lyndal Goodwin sworn 11 August 2006. I grant access to exhibit LG-A to the affidavit of Ms Goodwin sworn 14 August 2006, provided that Counsel for the Director-General shall have first access for the purposes of masking all portions marked in yellow, save for the last paragraph of Ms Whitbread’s file note of 10 January 2005, the case review form of 8 September 2005, Ms Whitbread’s email of 20 April 2006, Ms Whitbread’s email of 9 March 2006, Ms Carpenter’s email of 14 February and Ms Griffin’s response, and the other parties shall not have access to the portions so masked. I refuse to grant access to the documents comprised in exhibit LG-B to the affidavit of Ms Goodwin sworn 14 August 2006, other than the brochure about the refugee camp and the photographs, to which I grant access to all parties.

64 I dismiss D’s application for an order for interrogatories.

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