Gris (a pseudonym) v Avila

[2019] NSWDC 132

District Court

New South Wales

Medium Neutral Citation:

Gris (a pseudonym) v Avila [2019] NSWDC 132

Hearing dates:

21 March 2019

Date of orders:

17 April 2019

Decision date:

17 April 2019

Jurisdiction:

Civil

Before:

Judge Levy SC

Decision:

1. The two notices of motion filed by the applicant defendant on 27 February 2019 seeking access to the client files of Leckie Law and the files of the Family Court of Australia are dismissed;

 

2. The applicant defendant is to pay the respondent plaintiff's costs of each of the dismissed motions on the ordinary basis unless otherwise ordered;

 

3. After the expiry of 28 days the Registrar is to return all files produced by the Family Court of Australia to that Court and notify that Court of these orders;

 

4. After the expiry of 28 days the Registrar is to return all files produced by Leckie Law to that firm and notify that firm of these orders;

 5. Liberty to apply on 7 days’ notice if further or other orders are required.

Catchwords:

CIVIL PROCEDURE – notices of motion – objection to inspection of privileged documents comprising a solicitor’s file – objection to inspection of documents produced by the Family Court of Australia – consideration of client legal privilege pursuant to s 122 of Evidence Act 1995 – contested notices of motions seeking access to documents protected by client legal privilege and by s 121 of the Family Law Act 1975

Legislation Cited:

Compensation to Relatives Act 1897 (NSW), s 6B
Court Suppression and Non-publication Orders Act 2010 (NSW), s 7, s 8
Evidence Act 1995 (NSW), s 117, s 118, s 119, s 122, s 123
Family Law Act 1975 [Cth], s 121
Uniform Civil Procedure Rules 2005 (NSW), r 1.8, r 13(3), r 33.4, r 33.9, r 33.13

Cases Cited:

A v Z [2007] NSWSC 899
Baker v Campbell (1983) 153 CLR 52; [1983] HCA 39
Botany Bay Instrumentation & Control Pty Limited v Stewart [1984] 3 NSWLR 98
DSE (Holdings) Pty Limited v Intertan Inc (2003) 127 FCR 499; [2003] FCA 384
Lisa Kaye O’Donoghue v Jet Fighter Flights Pty Ltd (in liq) [2013] NSWDC 781
NSW Commissioner of Police v Tuxford [2002] NSWCA 139
Portal Software v Bodsworth [2005] NSWSC 1179
R v Saleam (1989) 16 NSWLR 14; [1999] NSWCCA 86
The Commissioner for Railways v Small (1938) 38 SR (NSW) 564
Thomason v The Council of the Municipality of Campbelltown (1939) 39 SR(NSW) 347

Category:

Procedural and other rulings

Parties:

Honey Gris (Plaintiff/Respondent)
Manuel Adrian Aranibar Avila (Defendant/Applicant)

Representation:

Counsel:
Mr N Broadbent (Plaintiff/Respondent)
Mr S Downing (Defendant/Applicant)

  Solicitors:
Carroll & O’Dea (Plaintiff/Respondent)
Avant Law (Defendant/Applicant)

File Number(s):

2018/213684

Publication restriction:

Non-publication order

Judgment

Table of Contents

Non-publication order and litigation pseudonyms	[1]
The proceedings	[2]
Applicant defendant’s notices of motion (2)	[3] – [6]
Factual background to the notices of motion	[7] – [19]
First motion	[20]
Second motion	[21]
Applicant defendant’s evidence on the motions	[22]
Expert evidence served in the substantive proceedings	[23] – [30]
Investigative steps taken by applicant defendant	[31] – [34]
Respondent plaintiff’s objections to production and access	[35] – [36]
Legislation	[37] – [38]
Submissions of the parties	[39] – [47]
Applicant defendant’s submissions – first motion	[40] – [44]
Respondent plaintiff’s submissions in reply – first motion	[45]
Applicant defendant’s submissions – second motion	[46]
Respondent plaintiff’s submissions in reply – second motion	[47]
Inspection of documents produced	[48] – [49]
Determination – First notice of motion – legal professional privilege	[50] – [59]
Determination – Second notice of motion – Family Court files	[60] – [66]
Submissions concerning the subpoena to Leckie Law	[67] – [71]
Disposition	[72]
Costs	[73]
Orders	[74]

Non-publication order and litigation pseudonyms

1. These proceedings identify a party which could in turn identify a party and the children of a party named in Family Law proceedings. I have determined that it is not in the interests of the proper administration of justice, and contrary to the letter and the spirit of s 121 of the Family Law Act 1975 [Cth], for the real names of the respondent plaintiff and her deceased daughter to be used in these reasons. To do so would tend to contravene s 121 of the Family Law Act. In those circumstances I have determined that the public interest concerning those interests outweighs the public interest in open justice: s 7 and s 8 of the Court Suppression and Non-publication Orders Act 2010 (NSW). Accordingly, I have allocated litigation pseudonyms to the respondent plaintiff and her daughter.

The proceedings

2. The respondent plaintiff, Mrs Honey Gris (a litigation pseudonym), brings these proceedings pursuant to s 6B of the Compensation to Relatives Act 1897 (NSW), alleging professional negligence against the applicant defendant, Dr Manuel Avila, a general practitioner in Coffs Harbour, NSW. The plaintiff’s claim is that incorrect information provided by Dr Avila to the respondent plaintiff’s adult daughter, Adeliz (a litigation pseudonym), caused her to take her own life. The claim is defended on all issues.

Applicant defendant’s notices of motion (2)

3. At this interlocutory stage, the applicant defendant has filed two notices of motion, each dated 27 February 2019, seeking access to documents produced to the Court by non-parties. The first non-party is Ms Kelli Leckie of Leckie Law, the deceased’s former solicitor, who produced her client file in answer to a subpoena. The second non-party to produce documents is the Family Court of Australia.

4. Each motion is resisted by those non-parties, and by the respondent plaintiff. There is no motion filed by the respondent plaintiff to seek to have the subpoena to Leckie Law set aside pursuant to Uniform Civil Procedure Rules 2005 (NSW) (“UCPR”), r 33.4. If the orders sought are granted this would have that effect.

5. In the orders sought in the first notice of motion, the applicant defendant seeks to obtain inspection access to what would ordinarily be considered to be privileged legal advice given to the deceased in Family Law proceedings. Ms Leckie has claimed that privilege. That claim of client legal privilege is supported by the respondent plaintiff. The applicant defendant claims that any such privilege has been relevantly waived. This is disputed by the respondent plaintiff.

6. In the orders sought in the second notice of motion, the applicant defendant seeks access to Family Court files produced to the Court by the Family Court of Australia and by the Local Court at Coffs Harbour. The Registrar of the Family Court has communicated with the Registrar of this Court to draw attention to the fact that unauthorised non-party access to those files is prohibited by the operation of s 121 of the Family Law Act, the contravention of which is an indictable offence punishable by imprisonment.

Factual background to the notices of motion

7. In mid-2015, the deceased was involved in Family Law proceedings in which the future custody of her three children was an issue to be determined in the Family Court.

8. The deceased had a past history of depressive psychological illness and drug use. In the context of the contested custody proceedings in the Family Court, the deceased had consented to an interlocutory order that she undergo a medically controlled drug test in the knowledge that the results of that test would be considered by the Family Court to be influential in determining whether or not she should be allocated the custody of her children.

9. Previously, and on a number of occasions over the course of some years, the deceased had attended the applicant defendant’s general medical practice at the Coffs Harbour Medical Centre both as a patient, and also for the purpose of arranging drug testing.

10. Pursuant to consent orders apparently signed and filed in the Family Court on 12 July 2015, the deceased underwent a controlled drug test at the referral of the applicant defendant. The context of those signed consent orders was that the results of that test were to be provided to the Independent Children’s Representative of the deceased’s children forthwith upon availability. There were other facilitative agreements embedded within those consent orders which clearly indicate that the deceased was the subject of a legal compulsion associated with those consent orders: Pages 15-16 of the material annexed to the affidavit of Mr Vijayaraj sworn on 20 March 2019.

11. The result of the drug test taken on 13 July 2015 was the subject of a report issued by a pathology laboratory on the same date. That report was then provided to the applicant defendant who viewed it in the knowledge that he would be called upon to prove the results to the deceased.

12. On 14 July 2015, the deceased attended the applicant defendant’s medical practice at his request. She did so specifically in order that he would provide her with the factual details of her latest drug test result. At the time of that consultation, the applicant defendant knew or ought to have known of the deceased’s past medical history of emotional vulnerability and psychological illness.

13. At the time of the deceased’s consultation with the applicant defendant, he had access to the deceased’s medical records which included details of her previous history of psychological illness, and her past history of positive results from previous drug testing. He also knew of the context of the most recent testing, namely that it would be used for the purpose of determining custody issues in the Family Law proceedings.

14. Unfortunately, at the consultation on 14 July 2015, the applicant defendant incorrectly informed the deceased that her most recent drug test had returned a positive result for a number of prohibited drugs when in fact this was not so.

15. The applicant defendant gave the deceased that erroneous information because he had mistakenly read to her from a report of a superseded drug test result that was obtained in 2013, and not from the most recent report of the result of the test performed in relation to the deceased on 13 July 2015. He later discovered the result of the most recent test was negative.

16. After the applicant defendant gave the deceased that incorrect test result information, on either the evening of 14 July, or on the morning of 15 July 2015, she suicided.

17. In these proceedings, it is obvious that at the ultimate hearing, the respondent plaintiff will seek a finding along the lines that before the deceased suicided, she most probably and foreseeably became emotionally upset and disturbed on receiving the wrong test results from the applicant defendant.

18. The respondent plaintiff brings these proceedings on her own behalf as the deceased’s legal representative, and on behalf of her three grandchildren who are the children of the deceased. In the proceedings, it is claimed that the suicide of the deceased was most probably caused by, or was materially contributed to, by the negligence of the applicant defendant. As a consequence, the respondent plaintiff claims damages pursuant to the Compensation to Relatives Act, for herself, and for her three grandchildren.

19. At this relatively early stage of the proceedings, the applicant defendant has contentiously sought access to the family law advice given to the deceased by her solicitor, Ms Leckie, as well as seeking access to the Court file of the Family Court. The applicant defendant seems to have embarked upon that quest for the apparent forensic purpose of seeking to build a defence to the respondent plaintiff’s claim against him.

First motion

20. In the first notice of motion the applicant defendant argues that, pursuant to s 122 and s 123 of the Evidence Act 1995 (NSW), and pursuant to r 1.8 and r 33.9 of the UCPR, that he should be granted access to documents produced by Leckie Law (Packet No. S-10) pursuant to a subpoena for production notwithstanding that a claim of legal professional or client privilege has been made by Leckie Law. The applicant defendant maintains that a claim of privilege no longer exists due to argued issue waiver in relation to advice contained in that file.

Second motion

21. In the second notice of motion, the applicant defendant argues, pursuant to s 122 and s 123 of the Evidence Act, and pursuant to r 1.8 and r 33.9 of the UCPR, that he should be granted access to documents produced pursuant to the Court by inter-court correspondence from the Family Court of Australia (Packet No. S-10) and by the Local Court at Coffs Harbour (Packet No. S-9). The applicant defendant also claims that any privilege that may have existed over these documents has been waived, or alternatively, that those documents are not the subject of legal professional or client privilege.

Applicant defendant’s evidence on the motions

22. In support of the orders sought in the first motion the applicant defendant relied upon two affidavits sworn by his solicitor, Mr John Vijayaraj on 26 February 2019 and 20 March 2019. Mr Vijayaraj was not required for cross-examination on the content of his affidavits. Those affidavits have annexed to them an array of relevant correspondence and documents, including an expert opinion served by the respondent plaintiff in the proceedings. Reference will be made to those documents where it becomes relevant to do so. The respondent plaintiff called no evidence in relation to these motions.

Expert evidence served by plaintiff in the substantive proceedings

23. In order to appreciate the basis of the applicant defendant’s two notices of motion it is necessary to refer to relevant aspects of a presently uncontradicted expert medical opinion from a consultant general practitioner obtained by the respondent plaintiff and served on the applicant defendant in the proceedings.

24. The expert opinion relied upon by the respondent plaintiff included references to, and quotations from, readily available medical practice guidelines developed by the Medical Board of Australia, entitled: “Good medical practice : a code of conduct for doctors in Australia”:

25. After citing relevant passages from those guidelines, the opinion of that expert referred to the reported substance of Ms Leckie’s advice to the deceased to the effect that it was unlikely the deceased would retain custody of her children in the event she returned a positive drug test result. That reference was by way of assumption. The expert was not provided with an actual copy of any advice in written form.

26. That expert report made reference to the applicant defendant’s patient medical file kept in relation to the deceased, wherein mention was made of the Family Court custody proceedings and the deceased’s history of depression going back to 2011, and her history of having been prescribed psychotropic medication.

27. In that context, the expert stated that it was “absolutely crucial that Dr Avila provided [to the deceased] the results of the test done the day before”. The expert also went on to state the further opinion that it was Dr Avila’s duty to practise safely and effectively in accordance with his responsibility to promote the health of his patient, including to provide her with the correct test results.

28. The expert concluded that in the described circumstances, the provision of the wrong test results to the deceased represented a significant and serious departure from the standard of care expected of a reasonable general practitioner practising in Australia at the relevant time. The expert also concluded that the absence of any mention in Dr Avila’s patient history notes of any record of what was a very significant consultation with the deceased was well below the expected standard of due care in the circumstances.

29. For the purpose of these present applications, the applicant defendant’s legal advisors have focussed on that part of the expert’s report which referred to Ms Leckie having advised the deceased to the effect that if the relevant test results returned a positive result, this would affect the outcome of her Family Court litigation concerning the custody of her children.

30. The applicant defendant argues those circumstances amounted to a waiver of legal professional privilege concerning the content of the advice given by Ms Leckie. The basis of the alleged waiver appears to be either that the deceased allowed her mother, the respondent plaintiff, to be present when the advice was received, or because she had disclosed the effect of the family law advice to Dr Avila when arranging for the drug test to be carried out.

Investigative steps taken by applicant defendant

31. Annexure “C” to the affidavit of Mr Vijayaraj sworn 26 February 2019 comprises the letter of instruction from the solicitor for the respondent plaintiff to the plaintiff’s expert. That letter set out a number of factual assumptions which the applicant defendant’s legal advisors are indisputably entitled to analyse and to challenge by whatever legitimate means are available if they consider it forensically appropriate to do so.

32. Some of the detail of those assumptions has been followed up in the course of correspondence between the respective solicitors. Through that process it became apparent that the respondent plaintiff had been present together with the deceased during the relevant conversation the deceased had with her solicitor, Ms Leckie, when oral advice was provided by Ms Leckie as to the likely outcome of the custody proceedings in the event that the deceased returned a positive drug test result.

33. That revelation led to the applicant defendant’s legal advisors pursuing a course of investigation by issuing a subpoena seeking production of relevant documents in the file kept by Leckie Law and the related file of the Family Court of Australia. The applicant defendant argues that since the respondent plaintiff was present when Ms Leckie advised the deceased, those circumstances also too constituted a waiver.

34. In response to the applicant defendant’s subpoena, Ms Leckie has produced her files to the Court as required by the subpoena. However, both in writing and orally, she has claimed legal professional privilege over those files: Annexure “N” to the affidavit of Mr Vijayaraj sworn 26 February 2019.

Respondent plaintiff’s objections to production and access

35. Ms Leckie appeared at the hearing by means of a telephone link from Coffs Harbour to formally reiterate and maintain her claim for legal professional privilege: T5.46 – T7.9. She was not required for cross-examination and she was excused from further attendance. The respondent plaintiff supports Ms Leckie’s claim of legal professional privilege.

36. The position of the Family Court, as communicated by the Registrar of that Court, is that the applicant defendant’s subpoena directed at that Court is resisted on the basis of s 121 of the Family Law Act. This position was identified in correspondence addressed to the Registrar of this Court. That Family Court file, and the correspondence between the respective Courts, will be referred to in my reasons for determining the applicant defendant’s second notice of motion.

Legislation

37. The legislative and regulatory provisions that are relevant to the determination of these two notices of motion are as follows:

1. Section 117(1) of the Evidence Act 1995 (NSW) defines relevant terms used in the legislation, namely, “client”, “confidential documentation”, “confidential document” and “lawyer”;

2. Section 118 of the Evidence Act 1995 (NSW) cloaks legal advice, whether in the form of a communication or in the form of a document, with protection from disclosure;

3. Section 119 of the Evidence Act 1995 (NSW) provides for protection from tender of material into evidence if a client (which includes a personal representative of a deceased client) objects to the disclosure of a confidential communication or the contents of a confidential document prepared for the dominant purpose of providing professional legal services;

1. Section 122 of the Evidence Act 1995 (NSW), with some exceptions, permits evidence to be adduced where a party has acted in a way that is inconsistent with the client objecting to the adducing of evidence of a relevant disclosure;

2. Section 123 of the Evidence Act 1995 (NSW), as referred to in each motion, is of no application to these proceedings as that section relates only to criminal proceedings;

3. UCPR r 1.8 enables the Court to inspect any document relating to the need to determine a question of privilege;

4. UCPR r 33.4 relates to the setting aside of subpoenas, that remedy is not invoked at this stage;

5. UCPR r 33.9 relates to the Court’s procedures for dealing with objections of the present kind;

6. Section 121 of the Family Law Act 1975 (Cth), provides restrictions and criminal sanctions in respect of publication or dissemination of information concerning any part of Family Law proceedings.

38. For convenient reference, the text of those respective legislative provisions appears in the Appendix to these reasons as if they had been incorporated herein.

Submissions of the parties

39. Unsurprisingly, in their respective submissions, the parties took disparate positions.

Applicant defendant’s submissions - First motion

40. In support of the first motion the applicant defendant asserts that there is a legitimate forensic purpose in seeking access to the notes kept by Leckie Law. In argument, that forensic purpose was identified as being to assist the applicant defendant to deal with the question of the cause of the deceased’s suicide, particularly as to whether or not, and if so, in what terms, advice was given to the effect that in the event of a positive drug test result, it was unlikely she could retain custody of her children.

41. The applicant defendant further argued that the content of the solicitor’s file has a material bearing on the determination of what, on the balance of probabilities, had exercised the mind of the deceased at the time she took her own life.

42. In that regard, it was argued that the advice given to the deceased by Ms Leckie was not privileged because it was not confidential in that it was given in the presence of the plaintiff and it was therefore not intended to be confidential: Baker v Campbell (1983) 153 CLR 52; [1983] HCA 39, at pp 76-78.

43. The applicant defendant further argued that any historical confidentiality over that advice had been lost when the deceased disclosed the effect of that advice to the applicant defendant in the course of her professional medical consultations with him.

44. In the alternative, the applicant defendant argued that legal professional privilege has been waived pursuant to s 122 of the Evidence Act. In that regard, it was asserted that “issue waiver” has occurred, thus raising an argued inconsistency in maintaining a claim for privilege: DSE (Holdings) Pty Limited v Intertan Inc (2003) 127 FCR 499; [2003] FCA 384, at [58], citing Thomason v The Council of the Municipality of Campbelltown (1939) 39 SR(NSW) 347.

Respondent plaintiff’s submissions in reply - First motion

45. The respondent plaintiff sought to resist the first notice of motion by arguing that as it was the deceased, and not the respondent plaintiff, who had been the client of Leckie Law, she is therefore in no position to waive the privilege that ordinarily attaches to the file of Leckie Law, as well as in relation to any record kept in the Leckie Law file concerning any such advice given to the deceased. She also points out that she is neither the executor nor the administrator of the deceased’s estate. Her role in these proceedings is simply founded upon the limited ambit of s 6B of the Compensation to Relatives Act, which enables her to bring the proceedings for the benefit of a defined category of persons who have a right to claim damages for alleged negligence flowing from a relevant dependency on the deceased.

Applicant defendant’s submissions - Second motion

46. The applicant defendant asserts that since the Family Court of Australia and the Local Court at Coffs Harbour have produced their Family Court files to the Court as has been requested, he should be granted access to those files because they are not the subject of legal professional or client privilege, or alternatively, any such privilege that may have existed has been waived. The applicant defendant also argued that the documents sought by the applicant defendant have the capacity to bear upon and affect the determination of this Court at a trial of the issue of why the deceased took her own life, and with regard to the particular matters that exercised her mind at that time.

Respondent plaintiff’s submissions in reply - Second motion

47. Since the files from the Family Court and the Local Court at Coffs Harbour (being Family Court files) have been produced, there is no material difference between production on subpoena or production pursuant to UCPR r 33.13. The respondent plaintiff argued that either way, there is no legitimate forensic purpose for the applicant defendant to obtain access to those documents. In that regard, it was further submitted that the course proposed by the applicant defendant amounted to a fishing expedition: The Commissioner for Railways v Small (1938) 38 SR (NSW) 564. The respondent plaintiff therefore argued that the course sought by the applicant defendant amounted to an abuse of process. There was no separate notice of motion before the Court seeking the relief of setting aside a subpoena.

Inspection of documents produced

48. For the purpose of determining the issues, it was agreed that I should inspect the content of the files of Leckie Law and the Family Court files in chambers in order to determine whether or not on their face they contain privileged information before moving on to determine the questions of whether there was a legitimate forensic purpose which made those documents relevant in the present proceedings and whether there has been a waiver of privilege. This is in the context that the ultimate factual question to be determined at a trial of these proceedings is what had caused the deceased to take her own life.

49. I now turn to consider the issues calling for determination in the respective notices of motion.

Determination – First notice of motion – legal professional privilege

50. The documents produced by Leckie Law under cover of a letter dated 21 November 2018 addressed to the Registrar of this Court enclosed a sealed envelope comprising material from the Family Court and the Federal Circuit Court, including expert reports which, on their face are the subject of the prohibition contemplated by s 121 of the Family Law Act.

51. I am satisfied from the description of the contents as set out on the front of the first envelope under the heading “Privilege” that the documents housed therein should not be disclosed to the applicant defendant in these proceedings because they are the subject of client privilege: s 118 and s 119 of the Evidence Act.

52. The second sealed envelope produced by Leckie Law contains conference notes with the deceased, solicitor’s correspondence between the deceased and her solicitor, and related medical reports related to the Family Law proceedings. Those materials and the four lever arch folders comprising the files of Leckie Law are plainly privileged from disclosure to the applicant defendant in these proceedings because of client privilege: s 118 and s 119 of the Evidence Act.

53. Those conclusions lead to the consideration of whether that privilege should be treated as having been waived, either simpliciter, or by way of an argued issue waiver.

54. On the question of whether or not there has been a waiver of legal professional client privilege, I find that the respondent plaintiff has never been in a position whereby she had a right or a capacity to waive legal professional or client privilege over any part of the contents of Ms Leckie’s file in relation to the deceased’s Family Law proceedings. This is because the respondent plaintiff was never Ms Leckie’s client. She therefore has no standing to waive that privilege. She has no power or right to require Ms Leckie to authorise disclosure of those materials. Ms Leckie has justifiably and correctly claimed privilege over that material.

55. In that regard, I respectfully adopt the reasoning of Slattery J, in Lisa Kaye O’Donoghue v Jet Fighter Flights Pty Ltd (in liq) [2013] NSWSC 781, at [11]:

“The fiduciary character of [the plaintiff’s] role is clear. Compensation to Relatives Act s 6B is a machinery provision which allows a member of a class to sue to enforce rights to compensation vested in himself or herself and others, not a provision which vests the substantive rights of the whole class in whoever happens to be the plaintiff: Erwin v Shannon's Brick, Tile and Pottery Co. Limited (1938) 38 SR (NSW) 555, at 563 ("Erwin") per Jordan CJ. A member of a class, such as [the plaintiff], commencing action on behalf of class members, stands in a fiduciary position to these class members, and may be liable for improper performance of his or her fiduciary duty: Erwin at 561 per Jordan CJ. And once judgment is entered each dependent relative has a personal right to the amount apportioned (by the Court) to that dependant: Haigh v State Government Insurance Office (Queensland) [1962] Qd. R. 534 and Pobezin v Insurance Commissioner of the State Motor Car Insurance Office (1969) VR 682, at 691, per Menhennit J.”

56. In this case the applicant defendant has not adduced any admissible evidence of any actions or statements made by or on behalf of any person, living or deceased, that could reasonably be said to persuasively demonstrate or compel the view that there has been conduct that was relevantly inconsistent with the claim for legal professional or client privilege over any part of the content of Ms Leckie’s file so as to lead to a conclusion that such privilege has been waived: s 122(5)(a)(i) and (ii) of the Evidence Act 1995 (NSW).

57. In that regard, the deceased’s disclosure to the defendant of the substance of her reason for requiring a controlled blood test comes directly within the exclusions provided by s 122(5)(a)(iii), if not (i) and (ii), of the Evidence Act as she necessarily did so in furtherance of her need to comply with orders made by the Family Court where the applicant defendant needed to be provided with a good reason for arranging a drug test before undertaking an intrusive medical procedure.

58. It was plainly necessary for the deceased to convey the substance of the advice of Ms Leckie to Dr Avila because the effect of the consent orders in the Family Court (which are already in evidence as referred to at [10] above), provided the compulsion of law which indicated the disclosure was involuntary, and that the deceased had not acted in a manner that was inconsistent with a claim of client privilege: s 122(4) and (5) of the Evidence Act.

59. Since I have concluded that legal professional or client privilege over Ms Leckie’s materials has never been relevantly waived, it follows that the applicant defendant’s notice of motion seeking to defeat that claim of client privilege cannot succeed. Therefore, the first motion filed by the applicant defendant must be dismissed.

Determination – Second notice of motion – Family Court files

60. For the purpose of determining the second notice of motion, the applicant defendant seems to have assumed that there is a legitimate forensic purpose in seeking access to the Family Court files as distinct from a fishing expedition because the content of such files may have some bearing on the reasoning of the deceased in agreeing to undergo drug testing, and also, as to the deceased’s likely state of mind on being informed of the wrong test results. The evidence for that view is scant if not non-existent.

61. Initially, the applicant defendant’s proposed subpoena to the Family Court was problematic because the proper procedure was for that party to invoke the procedure set out in UCPR r 13(3) to obtain the records of another court. The Registrar of this Court recognised that problem and invoked the procedure contemplated by UCPR r 13(3) through inter-Court correspondence, the result of which was that the Family Court files were sent on loan to this Court.

62. The events giving rise to that loan arrangement appear in the correspondence addressed to the Family Court from the Principal Registrar of this Court, following procedural orders made in this Court. The substance of the letter from the Registrar of this Court to the Registrar of the Family Court, omitting formal parts, was as follows:

“On 12 November 2018 the following orders (and/or directions) were made:

Pursuant to Uniform Civil Procedure Rule 33.13 (NSW) I am writing to the Family Court of Australia to ask if the Family Court could please supply the relevant Family Court file to the District Court of New South Wales Sydney Registrar. If provided the parties could then seek access orders to the file from a Judicial Registrar.

Name of party in the Family Court Ms [name suppressed] (now deceased).

Ms [name suppressed]'s date of birth was [redacted]. This is the only information I have been provided at this stage.

To assist the Family Court in its deliberations as to whether or not to supply the file I have attached the email from the Solicitor for the Plaintiff [name suppressed] and a copy of the District Court Statement of Claim.

I have also attached a copy of the relevant NSW regulation. This is in part to ensure that a court of inferior jurisdiction does not issue a subpoena to a court of superior jurisdiction. It would be deemed inappropriate for the District Court to subpoena a file from the Family Court of Australia.”

63. On 13 November 2018, in answer to the applicant defendant’s subpoena, the Family Court produced to the Registrar of this Court its files relating to the deceased’s custody litigation under a covering letter which included certain conditions. The letter setting out those conditions, omitting formal parts, was as follows:

“The file is sent herewith on loan to your Registry on the basis that:

1. it will not be released from the custody of your Court;

2. it will be returned immediately on conclusion of the relevant proceedings in your Court, or forthwith upon request by this Court;

3. permission for it to be inspected by the parties or their legal representatives will be given only by order of your court;

4. that the correspondence section of the file is not for inspection by persons other than officers of the Court; and

5. your Court will not grant permission to copy any part of this Court's file. Your Court's attention is respectfully drawn to the provisions of section 121 of the Family Law Act, and this Court's obligations under the Commonwealth Privacy Act 1988 and related legislation.”

64. The Family Court file produced on loan to this Court comprised a series of files housed in an archive box. I have inspected the contents of that archive box delivered by the Registrar of the Family Court to the Registrar of this Court.

65. Having regard to the purpose of those files, and having due regard to the content and object of the provisions of s 121 of the Family Law Act, consistent with the conditions set out in the cited letter from the Registrar of the Family Court, I consider that the present application by the applicant defendant to inspect the Family Court file, must be refused because the pathway to inspection of that material is insurmountably blocked by the provisions of s 121 of the Family Law Act.

66. It is difficult to conceive how the applicant defendant could have rationally considered there was any reasonable prospect of gaining access to those files in order to inspect them in light of the mandatory prohibition residing in s 121 of the Family Law Act. The applicant defendant’s second notice of motion should therefore be dismissed.

Submissions concerning the subpoena to Leckie Law

67. The respondent plaintiff referred to the Court’s power to set aside subpoenas as an abuse of process if a subpoena is not served bona fide for the purpose of obtaining relevant evidence: A v Z [2007] NSWSC 899, at [3], applying Botany Bay Instrumentation & Control Pty Limited v Stewart [1984] 3 NSWLR 98, at 100; Portal Software v Bodsworth [2005] NSWSC 1179, at [19]; TheCommissioner for Railways v Small (1938) 38 SR (NSW) 564, 573-575.

68. The affidavit evidence from the solicitor for the applicant defendant demonstrates that the applicant defendant already has a copy of the consent orders which required the deceased to undergo drug testing. That evidence provides adequate context for the deceased’s attendances upon Dr Avila and the context of her actions in taking her own life.

69. In my view, any further quest for information to be obtained along those lines from Ms Leckie’s files amounts to what the authorities refer to as a “fishing expedition”: The Commissioner for Railways v Small (1938) 38 SR (NSW) 564, cited in NSW Commissioner of Police v Tuxford [2002] NSWCA 139, at [19]-[20].

70. The test of legitimate forensic purpose has already been served and satisfied with the evidence of the consent orders in the Family Court where those orders are already in the possession of the applicant defendant. Furthermore, the applicant defendant is able to give evidence of what the deceased told him to be the reason for the drug testing she had requested, namely, the issues in the Family Court litigation.

71. Whilst it may be “on the cards” that the documents sought by the subpoenas might throw light on the issues in the main case, to possibly make the documents pertinent to a resolution of the issues, as was held in R v Saleam (1989) 16 NSWLR 14; [1999] NSWCCA 86, at [11], those considerations cannot overwhelm or defeat client legal privilege. Accordingly, if there had been a motion to set aside the subpoena that was served on Ms Leckie, on the evidence adduced, the subpoena would have been set aside.

Disposition

72. For the above reasons, each of the applicant defendant’s notices of motion filed on 27 February 2019 should be dismissed.

Costs

73. Consequently, the applicant defendant should pay the respondent plaintiff’s costs of the dismissed motions on the ordinary basis unless a party can show an entitlement to some other costs order, for which there should be liberty to apply.

Orders

74. I make the following orders:

1. The two notices of motion filed by the applicant defendant on 27 February 2019 seeking access to the client files of Leckie Law and the files of the Family Court of Australia are dismissed;

2. The applicant defendant is to pay the respondent plaintiff’s costs of each of the dismissed motions on the ordinary basis unless otherwise ordered;

3. After the expiry of 28 days the Registrar is to return all files produced by the Family Court of Australia to that Court and notify that Court of these orders;

4. After the expiry of 28 days the Registrar is to return all files produced by Leckie Law to that firm and notify that firm of these orders;

5. Liberty to apply on 7 days notice if further or other orders are required.

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Appendix

A. Section 117 of the Evidence Act 1995 (NSW) provides as follows:

117 Definitions

(1) In this Division:

client includes the following:

(a) a person or body who engages a lawyer to provide legal services or who employs a lawyer (including under a contract of service),

(b) an employee or agent of a client,

(c) an employer of a lawyer if the employer is:

(i) the Commonwealth or a State or Territory, or

(ii) a body established by a law of the Commonwealth or a State or Territory,

(d) if, under a law of a State or Territory relating to persons of unsound mind, a manager, committee or person (however described) is for the time being acting in respect of the person, estate or property of a client—a manager, committee or person so acting,

(e) if a client has died—a personal representative of the client,

(f) a successor to the rights and obligations of a client, being rights and obligations in respect of which a confidential communication was made.

confidential communication means a communication made in such circumstances that, when it was made:

(a) the person who made it, or

(b) the person to whom it was made,

was under an express or implied obligation not to disclose its contents, whether or not the obligation arises under law.

confidential document means a document prepared in such circumstances that, when it was prepared:

(a) the person who prepared it, or

(b) the person for whom it was prepared,

was under an express or implied obligation not to disclose its contents, whether or not the obligation arises under law.

lawyer means an Australian lawyer, a foreign lawyer, or an employee or agent of either of them.

party includes the following:

(a) an employee or agent of a party,

(b) if, under a law of a State or Territory relating to persons of unsound mind, a manager, committee or person (however described) is for the time being acting in respect of the person, estate or property of a party—a manager, committee or person so acting,

(c) if a party has died—a personal representative of the party,

(d) a successor to the rights and obligations of a party, being rights and obligations in respect of which a confidential communication was made.

(2) A reference in this Division to the commission of an act includes a reference to a failure to act.

B. Section 118 of the Evidence Act 1995 (NSW) provides as follows:

118 Legal advice

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, lawyer or another person,

for the dominant purpose of the lawyer, or one or more of the lawyers, providing legal advice to the client.

C. Section 119 of the Evidence Act 1995 (NSW) provides as follows:

119 Litigation

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.

D. Section 122 of the Evidence Act 1995 (NSW) provides as follows:

122 Loss of client legal privilege: consent and related matters

(1) This Division does not prevent the adducing of evidence given with the consent of the client or party concerned.

(2) Subject to subsection (5), this Division does not prevent the adducing of evidence if the client or party concerned has acted in a way that is inconsistent with the client or party objecting to the adducing of the evidence because it would result in a disclosure of a kind referred to in section 118, 119 or 120.

(3) Without limiting subsection (2), a client or party is taken to have so acted if:

(a) the client or party knowingly and voluntarily disclosed the substance of the evidence to another person, or

(b) the substance of the evidence has been disclosed with the express or implied consent of the client or party.

(4) The reference in subsection (3) (a) to a knowing and voluntary disclosure does not include a reference to a disclosure by a person who was, at the time of the disclosure, an employee or agent of the client or party, or of a lawyer of the client or party, unless the employee or agent was authorised by the client, party or lawyer to make the disclosure.

(5) A client or party is not taken to have acted in a manner inconsistent with the client or party objecting to the adducing of the evidence merely because:

(a) the substance of the evidence has been disclosed:

(i) in the course of making a confidential communication or preparing a confidential document, or

(ii) as a result of duress or deception, or

(iii) under compulsion of law, or

(iv) if the client or party is a body established by, or a person holding an office under, an Australian law—to the Minister, or the Minister of the Commonwealth, the State or Territory, administering the law, or part of the law, under which the body is established or the office is held, or

(b) of a disclosure by a client to another person if the disclosure concerns a matter in relation to which the same lawyer is providing, or is to provide, professional legal services to both the client and the other person, or

(c) of a disclosure to a person with whom the client or party had, at the time of the disclosure, a common interest relating to the proceeding or an anticipated or pending proceeding in an Australian court or a foreign court.

(6) This Division does not prevent the adducing of evidence of a document that a witness has used to try to revive the witness’s memory about a fact or opinion or has used as mentioned in section 32 (Attempts to revive memory in court) or 33 (Evidence given by police officers).

E. UCPR r 1.8 provides as follows:

1.8 Determination of questions arising under these rules

The court may determine any question arising under these rules (including any question of privilege) and, for that purpose:

(a) may inspect any document in relation to which such a question arises, and

(b) if the document is not before the court, may order that the document be produced to the court for inspection.

F. UCPR r 33.4 provides as follows:

33.4 Setting aside or other relief

(1) The court may, on the application of a party or any person having a sufficient interest, set aside a subpoena in whole or in part, or grant other relief in respect of it.

(2) An application under subrule (1) must be made on notice to the issuing party.

(3) The court may order that the applicant give notice of the application to any other party or to any other person having a sufficient interest.

G. UCPR r 33.9 provides as follows:

33.9 Inspection of, and dealing with, documents and things produced otherwise than on attendance

(1) This rule applies if an addressee produces a document or thing in accordance with rule 33.6 (4) (b).

(2) On the request in writing of a party, the registrar must inform the party whether production in response to a subpoena has occurred, and, if so, include a description, in general terms, of the documents and things produced.

(3) Subject to this rule, no person may inspect a document or thing produced unless the court has granted leave and the inspection is in accordance with that leave.

(4) Unless the court orders otherwise, the registrar may permit the parties to inspect at the office of the registrar any document or thing produced unless the addressee, a party or any person having sufficient interest objects to the inspection under this rule.

(5) If the addressee objects to a document or thing being inspected by any party to the proceeding, the addressee must, at the time of production, notify the registrar in writing of the objection and of the grounds of the objection.

(6) If a party or person having a sufficient interest objects to a document or thing being inspected by a party to the proceeding, the objector may notify the registrar in writing of the objection and of the grounds of the objection.

(7) On receiving notice of an objection under this rule, the registrar:

(a) must not permit any, or any further, inspection of the document or thing the subject of the objection, and

(b) must refer the objection to the court for hearing and determination.

(8) The registrar must notify the issuing party of the objection and of the date, time and place at which the objection will be heard, and the issuing party must notify the addressee, the objector and each other party accordingly.

(9) The registrar must not permit any document or thing produced to be removed from the office of the registrar except on application in writing signed by the solicitor for a party.

Note. See rule 1.3 (2) with respect to the meaning of the reference to a solicitor for a party.

(10) A solicitor who signs an application under subrule (9) and removes a document or thing from the office of the registrar, undertakes to the court by force of this rule that:

(a) the document or thing will be kept in the personal custody of the solicitor or a barrister briefed by the solicitor in the proceeding, and

(b) the document or thing will be returned to the registry in the same condition, order and packaging in which it was removed, as and when directed by the registrar.

Note. See rule 1.3 (3) with respect to the meaning of the reference to a solicitor who removes a document or thing from the office of the registrar and the reference to the personal custody of the solicitor.

(11) The registrar may, in the registrar’s discretion, grant an application under subrule (9) subject to conditions or refuse to grant the application.

H. Section 121 of the Family Law Act 1995 (Cth) provides as follows:

FAMILY LAW ACT 1975 - SECT 121

Restriction on publication of court proceedings

(1) A person who publishes in a newspaper or periodical publication, by radio broadcast or television or by other electronic means, or otherwise disseminates to the public or to a section of the public by any means, any account of any proceedings, or of any part of any proceedings, under this Act that identifies:

(a) a party to the proceedings;

(b) a person who is related to, or associated with, a party to the proceedings or is, or is alleged to be, in any other way concerned in the matter to which the proceedings relate; or

(c) a witness in the proceedings;

commits an offence punishable, upon conviction by imprisonment for a period not exceeding one year.

(2) A person who, except as permitted by the applicable Rules of Court, publishes in a newspaper or periodical publication, by radio broadcast or television or by other electronic means, or otherwise disseminates to the public or to a section of the public by any means (otherwise than by the display of a notice in the premises of the court), a list of proceedings under this Act, identified by reference to the names of the parties to the proceedings, that are to be dealt with by a court commits an offence punishable, upon conviction by imprisonment for a period not exceeding one year.

(3) Without limiting the generality of subsection (1), an account of proceedings, or of any part of proceedings, referred to in that subsection shall be taken to identify a person if:

(a) it contains any particulars of:

(i) the name, title, pseudonym or alias of the person;

(ii) the address of any premises at which the person resides or works, or the locality in which any such premises are situated;

(iii) the physical description or the style of dress of the person;

(iv) any employment or occupation engaged in, profession practised or calling pursued, by the person or any official or honorary position held by the person;

(v) the relationship of the person to identified relatives of the person or the association of the person with identified friends or identified business, official or professional acquaintances of the person;

(vi) the recreational interests, or the political, philosophical or religious beliefs or interests, of the person; or

(vii) any real or personal property in which the person has an interest or with which the person is otherwise associated;

being particulars that are sufficient to identify that person to a member of the public, or to a member of the section of the public to which the account is disseminated, as the case requires;

(b) in the case of a written or televised account or an account by other electronic means--it is accompanied by a picture of the person; or

(c) in the case of a broadcast or televised account or an account by other electronic means--it is spoken in whole or in part by the person and the person's voice is sufficient to identify that person to a member of the public, or to a member of the section of the public to which the account is disseminated, as the case requires.

(4) A reference in subsection (1) or (2) to proceedings shall be construed as including a reference to proceedings commenced before the commencement of section 72 of the Family Law Amendment Act 1983 .

(5) An offence against this section is an indictable offence.

(8) Proceedings for an offence against this section shall not be commenced except by, or with the written consent of, the Director of Public Prosecutions.

(9) The preceding provisions of this section do not apply to or in relation to:

(a) the communication, to persons concerned in proceedings in any court, of any pleading, transcript of evidence or other document for use in connection with those proceedings; or

(aa) the communication of any pleading, transcript of evidence or other document to authorities of States and Territories that have responsibilities relating to the welfare of children and are prescribed by the regulations for the purposes of this paragraph; or

(b) the communication of any pleading, transcript of evidence or other document to:

(i) a body that is responsible for disciplining members of the legal profession in a State or Territory; or

(ii) persons concerned in disciplinary proceedings against a member of the legal profession of a State or Territory, being proceedings before a body that is responsible for disciplining members of the legal profession in that State or Territory; or

(c) the communication, to a body that grants assistance by way of legal aid, of any pleading, transcript of evidence or other document for the purpose of facilitating the making of a decision as to whether assistance by way of legal aid should be granted, continued or provided in a particular case; or

(d) the publishing of a notice or report in pursuance of the direction of a court; or

(da) the publication by the court of lists of proceedings under this Act, identified by reference to the names of the parties, that are to be dealt with by the court; or

(e) the publishing of any publication bona fide intended primarily for use by the members of any profession, being:

(i) a separate volume or part of a series of law reports; or

(ii) any other publication of a technical character; or

(f) the publication or other dissemination of an account of proceedings or of any part of proceedings:

(i) to a person who is a member of a profession, in connection with the practice by that person of that profession or in the course of any form of professional training in which that person is involved; or

(ia) to an individual who is a party to any proceedings under this Act, in connection with the conduct of those proceedings; or

(ii) to a person who is a student, in connection with the studies of that person; or

(g) publication of accounts of proceedings, where those accounts have been approved by the court.

(10) Applicable Rules of Court made for the purposes of subsection (2) may be of general or specially limited application or may differ according to differences in time, locality, place or circumstance.

Note: Powers to make Rules of Court are also contained in sections 26B, 37A, 109A and 123.

(11) In this section:

"court" includes:

(a) an officer of a court investigating or dealing with a matter in accordance with this Act, the regulations or the Rules of Court; and

(b) a tribunal established by or under a law of the Commonwealth, of a State or of a Territory.

"electronic means" includes:

(a) in the form of data, text or images by means of guided and/or unguided electromagnetic energy; or

(b) in the form of speech by means of guided and/or unguided electromagnetic energy, where the speech is processed at its destination by an automated voice recognition system.

Decision last updated: 17 April 2019