Fidler v Resi Corporation

[2011] SADC 77

DISTRICT COURT OF SOUTH AUSTRALIA

(Civil)

FIDLER v RESI CORPORATION

[2011] SADC 77

Judgment of Her Honour Judge Farrell

1 June 2011

PROCEDURE

Discovery - legal professional privilege - whether plaintiff waived privilege by allegations in Statement of Claim.

Sola Optical Australia Pty Ltd v Mills (1987) 46 SASR 364; Benecke v National Australia Bank (1993) 35 NSWLR 110; Southern Equities v Arthur Andersen (1997) 70 SASR 166, considered.

FIDLER v RESI CORPORATION
[2011] SADC 77

1. The defendant seeks an order that the plaintiff make further and better discovery of all documents evidencing the disclosure to him in or about November 2009 of the opinion expressed by Associate Professor M Holmes, respiratory physician (Holmes), in a written report of 18 November 2009 (para 2 Interlocutory Application filed on 1 April 2011).

2. The plaintiff opposes the order sought. He claims privilege over the documents, which are described in a general way, in his list of documents filed on 20 September 2010. He has advised the defendant  of the date of the letter enclosing the report of Holmes.

3. The defendant argues that the plaintiff has waived privilege by his pleading. It  says the pleading of the application for an extension of time asserts a state of mind to which legal advice is likely to have contributed. It has sought the production of the correspondence to the plaintiff from his legal representative and the production of other documents that record communications between him and his legal representative about the content of the report of Holmes and what the plaintiff understood by that report (defendant’s written submissions pp4 & 5) It seeks notes and advices in which the plaintiff gave instructions in relation to facts he ascertained from seeing or being told about Holmes’ report (transcript p9).

4. The plaintiff's statement of claim was filed on 9 March 2010. The statement of claim includes an application for an extension of time. The application is based on the fact that the plaintiff became aware for the first time of the opinion of Holmes expressed in his written report dated 18 November 2009 in relation to six itemised matters. Those matters are as follows; the plaintiff suffers from calcified asbestos related pleural plaques, the plaintiff suffers from asbestosis, the plaintiff suffers a respiratory disability in the order of 20-25% as a result of his asbestos related condition, the plaintiff’s disability is likely to increase to the level of 25‑30% over the next twelve years, the plaintiff has an increased risk of developing mesothelioma or lung cancer, the plaintiff will incur costs associated with his asbestos related conditions and the nature and of such costs.

5. In order to succeed on the application to extend the time in which to bring his proceedings, the  plaintiff will have to satisfy the Court that:

   ·At least one of the six itemised matters was not ascertained by him until some time within the twelve months prior to the proceedings being instituted (pursuant to s 48(3)(b)).

   ·The facts were  ascertained personally by the plaintiff, not by his solicitor (Sola Optical Australia Pty Ltd v Mills (1987) 46 SASR 364 at p367).

   ·At least one of the six itemised matters forms an essential element of the plaintiff’s cause of action  or will have major significance on an assessment of his loss.

6. Counsel for the defendant sought to rely on the decision of Gleeson CJ in Benecke v National Australia Bank (1993) 35 NSWLR 110. However in that case the appellant “herself lifted the veil of secrecy by giving her version of the communications”. That has not happened here. While it is possible that at trial evidence given by the plaintiff may amount to a waiver of privilege, no waiver arises on the face of the plaintiff’s statement of claim. In Southern Equities v Arthur Andersen (1997) 70 SASR 166 Bleby J said at 193:

   In my opinion the cases show that it is not sufficient merely to demonstrate that a party's state of mind or knowledge is in issue in order to succeed on an application that documents privileged from production on the ground of professional privilege be produced. If that were the case, privilege would almost always be waived in cases of misrepresentation, negligence and misleading and deceptive conduct where questions of a plaintiff's reliance or state of mind was in issue, and a list of documents showed that at or about the relevant time the plaintiff had some sort of legal advice which might have had some bearing on the plaintiff's state of mind. There must be something more from which it can be shown that the legal advice was relevant in the formation of that state of mind or belief or that the advice itself in some way becomes an issue in the action. This may be apparent from the pleadings or from some other document which has been produced in the course of discovery; it may be revealed by answers to interrogatories, or it may be self evident from the description of the document in question contained in the list of documents. In some cases it may not become apparent until a witness is giving evidence at trial.

7. In my view the pleadings demonstrate a reliance on the medical opinion of Holmes. Each of the six itemised matters in the application for an extension of time  relates to the plaintiff’s medical condition as assessed by Holmes. The pleadings do not disclose that legal advice was relevant in the formation of Mr Fiddler’s state of mind.

8. In my view the plaintiff  has not waived privilege. It is therefore unnecesary for me to consider the second part of the defendant’s argument, that is, whether fairness requires the documents to be disclosed.

9. The Application is dismissed.