Hassan Heidari v Commonwealth of Australia - [2024] SADC 24

DISTRICT COURT OF SOUTH AUSTRALIA
(Civil: Interlocutory Application)
HASSAN HEIDARI v COMMONWEALTH OF AUSTRALIA
[2024] SADC 24
Judgment of his Honour Judge Burnett
6 March 2024
PROCEDURE - CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS - PROCEDURAL ASPECTS OF EVIDENCE - EXPERT REPORTS AND EXPERT EVIDENCE
PROCEDURE - CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS - DISCOVERY AND INTERROGATORIES - DISCOVERY AND INSPECTION OF DOCUMENTS - PRODUCTION AND INSPECTION OF DOCUMENTS - GROUNDS FOR RESISTING PRODUCTION
The applicant has brought a claim against the respondent, the Commonwealth of Australia, in relation to his detention at the Baxter Immigration Reception and Processing Centre. The claim is primarily for damages for psychiatric injuries.
During the course of the proceedings, the applicant engaged Dr Craig Raeside, a psychiatrist, to prepare expert medical reports in relation to his mental health. Dr Raeside has prepared 5 such reports.
On 27 August 2021, the matter was listed for trial to commence on 8 August 2022 for 8 weeks. As the trial approached, the applicant’s mental health declined such that he indicated that he would harm himself if his lawyers continued to contact him.
A further report was obtained from Dr Raeside on 17 May 2022 for the purpose of vacating the trial date. That report was not provided to the respondent or the third parties. The applicant contends that he should not have to provide the report as it was not produced for the claim and further contained material concerning the relationship between the applicant and his solicitors and communications between the applicant and his solicitors. Subsequently, the respondent and third parties were provided with a revised report of Dr Raeside dated 7 July 2022 in support of the application of the adjournment of the trial. On 16 March 2023, Mr Simeon Vipond was appointed litigation guardian of the applicant.
The applicant has brought an interlocutory application seeking an order that he need not discover the May 2022 report of Dr Raeside.
Held:
1.      The application is dismissed.
2.      The May 2022 report of Dr Raeside deals directly with issues that relate to the mental health of the applicant. It deals with the applicant’s mental state at the time of the report and how some of the communications and interactions that he had with his lawyers impacted on his mental health.
3.      In those circumstances it cannot be said that the report neither supports nor adversely affects the case of the applicant such that it does not have to be produced pursuant to Uniform Civil Rules (UCR) 73(3).
4.      UCR 73.14(2)(e) is not applicable as that rule enables the Court to make an order modifying the operation of the rules relating to discovery but does not provide a power to modify the rules requiring production of expert reports.
5. Part 14 of the UCR (which deals with expert reports) requires production of the report and also communications between the expert and the party or its representatives. Further, there had been waiver of any privilege attached to the report: AWB Limited v Cole (No 5) (2006) 234 ALR 651; Ampolex Ltd v Perpetual Trustee Co (Canberra) Ltd (1996) 40 NSWLR 12 applied.
6.      UCR 12 provides for a general power to dispense with an obligation under the rules. That power should not be exercised in the present case as the matters contained in the report are relevant to the dispute and in fact central to the determinations that the Court will be required to make about the continuing nature of the applicant’s mental health. The respondent and third party would suffer prejudice by not being able to see the report.
7. The report should be redacted to exclude reference to the quantum of costs incurred by the applicant and instructions given to his lawyers about the progress of the matter which were unrelated to his mental health condition: Integral Energy Australia v EDS (Australia) Pty Ltd and Ors [2006] NSWSC 971 applied.
Migration Act 1958 (Cth), referred to.
Integral Energy Australia v EDS (Australia) Pty Ltd [2006] NSWSC 971; Bradman & Ors v Allens Arthur Robinson (No 2) [2009] SASC 180; Mann v Carnell (1999) 201 CLR 1; AWB Limited v Cole (No 5) (2006) 234 ALR 651; Ampolex Ltd v Perpetual Trustee Co (Canberra) Ltd (1996) 40 NSWLR 12; Australian Securities and Investments Commission v Southcorp Limited (2003) 46 ACSR 438, considered.

HASSAN HEIDARI v COMMONWEALTH OF AUSTRALIA
[2024] SADC 24

The applicant has brought an interlocutory application seeking an order that he need not discover the report of Dr Craig Raeside dated 17 May 2022 (the May 2022 Raeside Report) or alternatively that he produce a redacted version of that report. The applicant engaged Dr Raeside, a psychiatrist, to provide various expert reports in support of his claim that he suffered personal injuries, in particular to his mental health, as a result of his detention by the respondent at the immigration detention centres at Curtin and Baxter. The May 2022 Raeside Report was obtained not directly for the purpose of his claim, but for the purpose ascertaining the fitness of the applicant to proceed to trial which had been listed to commence in August 2022.
The applicant had earlier sought that this application, not to discover the report, be heard ex parte. That application was opposed by the respondent and the third parties. I heard argument on that application and on 30 May 2023 handed down my decision dismissing the application that the substantive application be heard ex parte.
For the reasons that I now express, I also dismiss the substantive application that the applicant need not discover Dr Raeside’s report. I order that a copy of the report be produced to the respondent and third parties, save that the applicant be permitted to redact a particular passage in the report.
Background
The applicant has brought a claim against the respondent, the Commonwealth of Australia (the respondent), in relation to his detention in the immigration detention facilities at Curtin and Baxter.
The applicant was a refugee and left Iran and arrived at Ashmore Reef in Australia on 27 September 2000. The applicant had been imprisoned and tortured in Iran before he came to Australia as a refugee. Upon his arrival in Australia, the applicant was detained in immigration detention centres pursuant to the provisions of the Migration Act 1958 (Cth). The applicant was detained at Curtin Immigration Reception and Processing Centre (Curtin) from 27 September 2000 to 22 September 2002, a period of almost two years and at Baxter Immigration Reception and Processing Centre (Baxter) from 22 September 2002 to 1 May 2005, a period of 2 years and 7 months. The applicant was released from immigration detention on 2 May 2005 on a temporary protection visa.
The applicant pleads that upon his arrival at Baxter he was suffering from a mental illness and was exhibiting signs and suffering symptoms of mental illness or alternatively was vulnerable to suffering a mental illness. The applicant pleads that the respondent knew or ought to have known of these matters and breached its duty of care to him by failing to assess him on his arrival at Baxter for mental illness or vulnerability to mental illness. The applicant further pleads that the respondent breached its duty of care in relation to a failure to treat him for his mental illness and his vulnerability to mental illness. The applicant also alleges that the respondent breached its duty of care to him in relation to the conditions in which he was held at Baxter. The applicant alleges that he suffered psychiatric injuries as a result of the breaches of duty by the respondent and in particular suffered a major depressive illness or in the alternative aggravation of an existing adjustment disorder. The applicant pleads that his major depressive disorder continues to cause him pain and suffering and loss of amenity and enjoyment of life and that he will continue to suffer a diminished earning capacity as a result. The applicant also claims he suffered some physical injuries.
The respondent denies the claim of the applicant. The respondent has issued a third party notice against four third parties. The first third party and the third third party (who I will refer to as ACS and ACM respectively) are related companies. The second and fourth third parties (who I will refer to as G4S and Group 4 Falck) are also related to each other. In its cross claim, the respondent pleads that all times during the period from 27 September 2000 to 22 September 2002, ACM operated Curtin on behalf of ACS and from 22 September 2002 to 19 January 2004, ACM on behalf of ACS operated Baxter. The respondent pleads that from 19 January 2004 to 2 May 2005, G4S operated Baxter.
The respondent pleads that pursuant to various agreements that it entered into with the third party operators, the third parties were required to provide services to specified immigration detention standards. In respect of the time that the applicant was in detention centres managed by the third parties, the respondent pleads that if it is liable to the applicant, it is entitled to an indemnity from the third parties in that any liability of the respondent arose out of breaches by the third parties of their respective agreements with the respondent or breaches of duty of care owed by the third parties to the respondent. Alternatively, the respondent claims that it was entitled to a contribution from the third parties in respect of their responsibility for the alleged harm that was suffered by the applicant. The claims against ACM and Group 4 Falck arose through guarantees those companies gave to the respondent in which they guaranteed the performance of ACS and G4S respectively.
The applicant’s solicitors have engaged Dr Raeside, a psychiatrist, to examine the applicant and prepare reports for the purpose of the applicant’s claim. For this purpose, Dr Raeside prepared reports on the applicant’s condition on 13 April 2011, 7 August 2014, 31 January 2016, 3 April 2021 and 15 March 2022. It is fair to describe Dr Raeside, as the respondent has done, as the principal diagnostic psychiatrist expert retained by the applicant.
On 27 August 2021, the matter was listed for trial to commence on 8 August 2022 for 8 weeks. The applicant’s mental health declined as the trial approached. The applicant indicated that he would harm himself if his lawyers continued to contact him. The May 2022 Raeside Report was obtained for the purpose of ascertaining whether the applicant was fit to finalise his affidavit, to progress the matter to trial and to give evidence at trial. The applicant agreed to see Dr Raeside for the purpose of the report. In his report, Dr Raeside expressed an opinion on the mental health of the applicant and his ability to instruct his lawyers. That report was not provided to the respondent and the third parties. Subsequently, the respondent and third parties were provided with a revised report of Dr Raeside dated 7 July 2022 in support of the application for an adjournment of the trial.
On 20 June 2022, an order was made that the trial be vacated. The applicant’s solicitors found themselves in the impossible position in that they could not obtain the necessary instructions or prepare the matter for trial without potentially causing harm to the applicant by contacting him. Further, the applicant’s position was such that he was not in a fit state to conduct the trial.
Mr Simeon Vipond was appointed litigation guardian of the applicant on 16 March 2023 pursuant to Uniform Civil Rules 2020 (UCR) 23.7(1)(d).
Relevant provisions of the Uniform Civil Rules
The applicant brought the application pursuant to UCR 73.14 which provides:
(1)The Court may order that the operation of the rules in this Part [Part 13-Discovery] be modified in a manner specified in the order.
(2) For example, the Court may order that-
(a)-(d) …
(e) a document, or class of documents, need not be discovered, or be discovered separately.
During the course of the hearing, the applicant also placed reliance on UCR 73.16(3) which provides:
(1)The Court has a discretion, on objection to the production of a document, to relive the objector from the obligation to produce the document if satisfied that the document neither supports nor adversely affects the case of any party to the proceeding.
Also relevant as a possible source of power to make the order is UCR 12.1 which provides:
(1)The Court may on its own initiative, or on an application by any person, make any order that it considers appropriate in the interests of justice.
(2)For example, the Court may-
(a)Order that a provision of these Rules not apply or apply in a modified way or dispense with compliance (whether before or after compliance is or was required);
(b) Make an order that is inconsistent with or in lieu of a provision of these Rules.
The rules relating to the provisions of expert reports are also relevant to the determination of this application. UCR 74.3 provides:
(3)Subject to rule 74.13 [which deals with shadow experts and is not relevant to the current application] a party must, by the due date serve on each party to the proceeding a copy of each expert report in the party’s possession, custody or power relevant to the subject matter of the proceeding not previous served on that party (whether or not the party intends to rely on it at the trial).
UCR 74.1 defines an expert report as a report relevant to issues in the proceeding in question including a summary expert report. Pursuant to UCR 74.4 a part may request the other party who had discovered an expert report to provide:
(a)A copy of written communications and records of communications between the party or a representative of the party and the expert or between the expert and another expert relevant to the content of the report (relevant communications);
(b)Details (date, parties and substantive content) of relevant communications if they were oral and not recorded;
Determination
The Court was provided with a copy of the report and an unredacted version of the affidavit in support of the application. The respondent and third parties received a redacted version of the affidavit which did not disclose the report.
The applicant submitted that certain passages in the May 2022 Raeside Report (highlighted in yellow in a copy of the report produced to me) concern the relationship between the applicant and the applicant’s solicitors. Further, the applicant submitted that the passages highlighted in orange identify communications that constitute advice or instructions between the applicant and the applicant’s solicitors.
At the request of the application and without objection from the respondent and the third parties, I inspected the report.[1]
[1] In accordance with the approach undertaken by Einstein J in Integral Energy Australia v EDS (Australia) Pty Ltd [2006] NSWSC 971 at [4].
The applicant seeks an order that he be excused from producing the report or alternatively that he only be required to produce a redacted report excising the highlighted passages.
The applicant advanced four factual bases in support of his application that the report was not required to be produced under the rules or that he should be excused from any requirement for production. They were:
(1)the report was not produced to advance the applicant’s case but was produced to determine whether he was in sufficient a mental state that he would be able to proceed with the matter and would be able to give evidence and instruct at trial and in particular whether, if the matter proceeded to trial, the health, and perhaps life, of the applicant would be endangered;
(2)the report was irrelevant to the issues at trial;
(3)the report neither supported nor adversely affected the case of either party to the proceeding;
(4)the report referred to the impaired judgment of the applicant and his paranoid views of his relationship with his solicitors and detailed incompetent instructions that he would provide to his solicitors. In the circumstances, the applicant submitted that it would be unfair to take advantage of a person in the vulnerable state in which the applicant found himself.
The respondent and the third parties disputed these contentions. The respondent submitted that the May 2022 Raeside Report concerns matters that are directly relevant to the issues in the proceedings and indeed critical to the consideration by the Court of the applicant’s mental health condition, which is one of the central issues in the case.
The first two matters require a determination of factual matters. The third and fourth matters are consequences that flow from the factual matters and the circumstances in which the report was obtained.
I make the following factual findings for the purposes of this application.
It is clear on the evidence that the May 2022 Raeside Report was produced for the purpose of ascertaining whether the applicant was in a fit mental state such that the matter could proceed to trial and whether his health and perhaps life would be endangered if the trial proceeded. That was not in dispute. The issue that arises is whether that purpose provides, in all of the circumstances, justification for an order that the applicant not produce the report.
The second factual issue that requires determination is the relevance of the May 2022 Raeside Report. The opinion of Dr Raeside was that the applicant had a severe psychiatric illness and did not have the capacity to instruct his lawyers, that his judgment was severely impacted by his illness and that he was paranoid. The applicant has put in issue in his pleadings his mental health condition and said that he has a mental health condition that continues to exist and for which he should be compensated. The May 2022 Raeside Report deals with issues which relate to his mental health condition. It deals with his mental state at the time of the report and details some of the communications and interactions that he has had with his lawyers that he says have impacted on his mental health. These were matters that informed the conclusions reached by Dr Raeside in his report.
In these circumstances, I consider the report to be relevant and directly relevant to the issues in dispute in the proceedings.
I consider the fact that the report was obtained for another purpose, namely to ascertain the fitness of the applicant to proceed to trial and not for the purpose of an expert report relating directly to is claim for compensation, to be of little weight. The report was, on my findings, directly relevant to the issues in dispute and in particular to the mental health of the applicant. The report contains matters that are relevant to the progress of the matter to trial and the trial. Indeed it would be difficult to see how Dr Raeside could be cross examined without reference to the report. The report could be used to examine the opinions he has expressed in earlier reports. The report expands upon the matters on which he previously provided an opinion.
Uniform Civil Rule 73.16(3)-neither supports nor adversely affects the case of any party to the proceeding
Given the content of the report and the opinions expressed by Dr Raeside, I have reached the conclusion that I am not satisfied that the report neither supported nor adversely affected the case of the applicant. In reaching this conclusion, it is important to observe that UCR 73.16(3) places the onus on the party resisting production to satisfy the Court of these matters. In the case of a document that is directly relevant (as I have found), it is difficult for the applicant seeking relief from production to discharge that onus. The fact that the report was not commissioned to support the substance of his case, but for the purpose of ascertaining the fitness of the applicant to proceed to trial does not assist in satisfying that onus.

In the present case, I was not taken by the applicant (nor were such reports in evidence in the application before me) to the earlier reports of Dr Raeside to support a submission that the May 2002 Raeside Report neither supported nor adversely affected the case of either party. Having read the report, I consider (for the purposes of this application) that it adversely affects the case of applicant. Without at this point going into the detail of the report, it is clear that the report records matters relevant to an assessment of the cause of the applicant’s mental health condition and the extent to which the detention played a part in his condition. The report also addresses his current condition and the role that detention, but also other factors, have had on his mental health. All of those matters will be examined in detail at trial. In those circumstances, it could not be said that the report neither supports nor adversely affects the case of the applicant.
It follows that UCR 73.16(3) does not provide a basis for the applicant to resist an order for production of the report.
Uniform Civil Rule 73.14(2)(e)-order a document need not be discovered
The applicant relied upon UCR 73.14(2)(e) which provides that the Court may make an order modifying the operation of the rules in this Part [ie Part 13 which dealt with discovery] and may make an order that certain documents or classes of document may not be discovered.
The applicant referred to the decision in Bradman & Ors v Allens Arthur Robinson (No 2)[2] where in relation to a strike out application, Kourakis J, as he then was, held that the Supreme Court Civil Rule 2006 117(2)(a) permitted part of a document to be struck out, even though the rules did not provide for the power to strike out part of a document. The applicant relied upon that case for the proposition that, by analogy, the rules permitted obligations to be modified and permitted, by implication, that an order could be made in relation to part of a document.
[2] [2009] SASC 180.
I do not consider that that case assists the court in determining this application. That case involved striking out a pleading which is very different from the obligation to give discovery and the reasons why an order might be made for the production of a document. There is no doubt that UCR 12 enables the court to make any order that it considers appropriate in the interests of justice and can make an order dispensing with compliance of a rule or an order that the rules do not apply in respect to a particular application. UCR 73.14 itself makes clear that the rules relating to discovery can also be modified. That would include, I presume, without finding, discovery of part of a document or more accurately, a redacted version of a document.
However, the rules relating to the production of expert reports require production of the expert report. These rules are contained in Part 14 of the UCR. Under UCR 74.3, expert reports must be provided to the other parties. I have already found that the report was relevant and therefore under UCR 74.3, must be produced to the other parties. UCR 73.14(e), which provides for modification of the operation of the rules relating to discovery, only applies to modification of the rules contained in Part 13 and has no application to the rules relating to expert reports contained in Part 14.
Not only must the party produce the expert report, pursuant to UCR 74.4, the party providing the report must also provide a copy of written communications and records between the party or representatives of the party and the expert and if oral, the substance of such communications. The operation of UCR 74.4 therefore would require the applicant to disclose the substance of his instructions to the expert, even if they were not recorded in the report itself.
Legal professional privilege
There is some suggestion in the written material before the Court that the applicant was asserting that the May 2022 Raeside Report was the subject of legal professional privilege. Such a contention cannot be sustained. The UCR expressly rejects any proposition that the expert report or the material provided to the expert, including by way of instructions, can be the subject of legal professional privilege.
I also accept the submission of the respondent that legal professional privilege was waived by the disclosure of the further report of Dr Raeside in his report dated 7 July 2022. In that report, Dr Raeside made reference to his earlier reports including the following:
My response to your specific questions should be viewed in light of the greater detail in my report of 17/5/22.
As indicated in my previous reports, Mr Heidari has been diagnosed with a Chronic Major Depressive Disorder with ongoing permanent psychiatric impairment.
As detailed in my report of 17/5/22, Mr Heidari is at increased risk of self harm and suicide if he feels he is being forced to continue with the claim. The wight of those thoughts and feelings prevents him from being able to consider the implications or other options in a rational way.
Gleeson CJ, Gaudron, Gummow and Callinan JJ in Mann v Carnell[3] expressed the doctrine of implied waiver in the following terms:
Waiver may be express or implied. Disputes as to implied waiver usually arise from the need to decide whether particular conduct is inconsistent with the maintenance of the confidentiality which the privilege is intended to protect. When an affirmative answer is given to such a question, it is sometimes said that waiver is "imputed by operation of law". This means that the law recognises the inconsistency and determines its consequences, even though such consequences may not reflect the subjective intention of the party who has lost the privilege. Thus, in Benecke v National Australia Bank, the client was held to have waived privilege by giving evidence, in legal proceedings, concerning her instructions to a barrister in related proceedings, even though she apparently believed she could prevent the barrister from giving the barrister's version of those instructions. She did not subjectively intend to abandon the privilege. She may not even have turned her mind to the question. However, her intentional act was inconsistent with the maintenance of the confidentiality of the communication. What brings about the waiver is the inconsistency, which the courts, where necessary informed by considerations of fairness, perceive, between the conduct of the client and maintenance of the confidentiality; not some overriding principle of fairness operating at large (citations omitted).
[3] [1999] HCA 66; (1999) 201 CLR 1 at [29].
In AWB Limited v Cole (No 5),[4] Young J held that the authorities drew a distinction between a mere reference to the existence of legal advice and cases in which the gist or substance of the advice was disclosed. One of the cases referred to by Young J was Ampolex Ltd v Perpetual Trustee Co (Canberra) Ltd.[5] In that case, Rolfe J (at first instance) held that substance in the case of disclosure meant “the essential nature or part of a thing, the essence”.[6] Rolfe J held that:[7]
In my opinion the substance of the advice may well be disclosed if the ultimate conclusion, without the supporting reasoning process, is revealed. At that stage there has been, in my opinion, a disclosure of the substance of the advice, that is, what the advice is. Further the ultimate conclusion, whilst it may be a “result” or “consequence” of the reasoning is more than that: in its own right it is the essence or vital part of the advice. Some advices may be very short and answer the question with a minimum of reasoning or, in some circumstances, without any.
[4] AWB Limited v Cole (No 5) (2006) 234 ALR 651; [2006] FCA 1234 at [158].
[5] (1996) 40 NSWLR 12; [1996] NSWSC 7 and on appeal (1996) 70 ALJR 603; [1996] HCA 15.
[6] (1996) 40 NSWLR 12 at 17.
[7] Ibid at 18.
The passages that I have referred to in the 7 July 2022 report of Dr Raeside indicate that he has disclosed the substance of his earlier May 2002 report. The 7 July 2022 report has been deployed by the applicant.
If the May 2022 Raeside Report has been waived, it would also follow that the instructions given to Dr Raeside have also been waived, under the doctrine of associated material or implied waiver. In Australian Securities and Investments Commission v Southcorp Limited,[8] Lindgren J held that ordinarily the disclosure of the expert report will result in the implied waiver of the privilege in respect of the brief or instructions or communications between the expert and the lawyers, at least if the appropriate inference was that they were used in a way that could be said to influence the content of the report such that it could be said to be unfair for the client to rely on the report without disclosure of such documents.
[8] (2003) 46 ACSR 438; [2003] FCA 804 at [21].
In the present case, the content of the May 2022 Raeside Report demonstrates that Dr Raeside has used the matters communicated by the applicant to him about his relationship with his lawyers and the future progress of the proceedings so as to form a view about the mental health.
I do not consider therefore that legal professional privilege provides any basis for the applicant not producing the report and in fact the UCR provisions relating to expert reports and the waiver of privilege both require production of the report.
Uniform Civil Rule 12-general power to dispense with an obligation under the rules
The next matter that requires determination is whether the applicant can be relieved of the requirement that he produce the report. The applicant submitted that I should exercise the power under UCR 12 to dispense with the requirements of the rules that the applicant produce the expert report on the basis of unfairness to the applicant. That unfairness arises, it is submitted because:
1.The applicant was in a vulnerable state and did not have capacity to provide rational instructions;
2.The report was produced for the purpose of ascertaining whether the applicant’s mental health was such that the trial could proceed and, consequent upon that, for the purpose of seeking vacation of the trial;
3.The applicant provided oral instructions to the expert which were of a privileged nature and irrelevant to the matters in dispute;
4.The applicant provided irrelevant comments in relation to his opinions about his lawyers; and
5.It would be unfair in all the circumstances to require the applicant to produce a report or not to modify the rules.
I accept that the applicant was and remains in a vulnerable state and that some of the matters recorded as instructions or matters upon which he seeks to provide instructions, were irrational. However, that vulnerable state and his mental health are central aspects of his claim. The circumstances relating to his ability to provide instructions and whether he was in a fit state for the trial to proceed, cannot be divorced from his claim as a whole. I have already set out in these reasons why I consider that the matters contained in the report are relevant to the issues in dispute and are in fact central to the determinations that the Court will be required to make about the continuing nature of the applicant’s mental health. Further, for the reasons which I have already expressed, I do not consider that the fact that the report was prepared for a different purpose, rather than the claim itself, provides any basis for not producing the report in circumstances where the report deals with matters that are central to the claim and the trial.
The respondents and third parties will suffer prejudice by not being able to see the report which deals directly with matters relevant to the psychiatric illness of the applicant and expresses opinions about the mental health and prognosis of the applicant. The respondent and third parties submitted, which I accept, that an order that the report not be produced, would result in the exclusion of an expression of an opinion on psychiatric illness published by the applicant’s diagnostic expert where that expert had produced a number of other reports that had been provided. The respondent further submitted that in a preliminary hearing, I would be making a ruling as to what evidence would be presented at trial and how cross examination would proceed at trial.
In an application to be relived of an obligation under the rules, I have to conduct an evaluative exercise in which I balance, in this case, the disadvantage to the applicant if it were required to produce the report against the disadvantage to the respondent and third parties if the report is not produced. I then have to consider whether once undertaking that balancing exercise, the applicant should be relieved of his obligation under the rules to produce the report. A party might be relieved of an obligation under the rules if the Court determined that the rules operated in an unintended way that created a particular unfairness or prejudice to that party.
The prejudice to the respondent and the third parties if the report is not produced and the trial proceeded without reference to it is in my view significant and outweighs the disadvantage that the applicant may suffer from the production of the report. The disadvantage to the respondent and third parties arises because the report is one of a number of reports produced by Dr Raeside that deals with the mental health of the applicant. It deals with some new issues (the continuance of the proceedings and the interactions between the lawyers and the applicant) and how they issues affected his mental health. It would be unfair if the respondent and third parties were unable to test those matters and their impact at trial.
The matters relied upon by the applicant do not prevent or interfere with the applicant’s right to a fair trial. The yellow highlighted passages in the report relate to the applicant’s opinion of his legal advisors but they are relevant to his paranoia. Apart from perhaps some embarrassment, there is no unfairness in their production if they relate to his mental health. No unfair advantage ensues to the respondent and third parties if they are released. The applicant submitted that the orange highlighted passages relate to instructions given by the applicant to his lawyers and in some cases to advice provided by his lawyers. While there be some aspects of those matters in the highlighted passages, the passages predominantly deal with the impact of the applicant’s relationship with his lawyers on his mental health. As such, in my opinion the unfairness to the respondent and the third parties if the report is not produced outweighs the disadvantage to the applicant if the report is produced.
I do not consider that the rules have acted in some unintended way that has caused an unfairness to the applicant. The applicant obtained the report to form a view about his mental health.
There is one exception to this where I consider that the report includes reference to advice given by his lawyers about the quantum of costs and instructions given by him to his lawyers about the progress of the matter that was unrelated to his mental health condition. That passage is the second sentence of the paragraph commencing at line 13 of page 3 of the report. That passage should be redacted from the copy of the report to be produced. Einstein J in Integral Energy Australia v EDS (Australia) Pty Ltd & Ors[9] adopted a similar approach when he considered whether there had been waiver of material that was subject to legal professional privilege by the letter of instruction given by the applicant’s lawyers to the expert in that case. Einstein J held that the sections of the letter which have influenced the content of the report were waived and could not be redacted but that the balance of the letter which contained privileged material had not been waived and could remain redacted.[10] Einstein J referred to ASIC v Southcorp Ltd[11] where Lindgren J held that privilege cannot be maintained in respect of documents used by an expert to form an opinion or write a report, regardless as to how the expert came by the documents. Lindgren J went on to observe that it may be difficult at an early stage to determine whether documents which were before an expert influenced the content of that report in the absence of any reference to them in his report. No such difficulty arises in the present case as Dr Raeside has referred to the disputed communications (which were oral) in his report.
[9] [2006] NSWSC 971.
[10] Ibid at [6] and [7].
[11] [2003] 46 ACSR 438; [2003] FCA 804.
Conclusion
For the reasons which I have expressed, I dismiss the application of the applicant not to produce the May 2022 Raeside Report in full save for the passage which I permit the applicant to redact. Subject to the issue of timing, which I discuss below, I order that the copy of the report, with the redaction of the second sentence of the paragraph commencing at line 13 of page 3, be produced to the respondent and the third parties.
The question then arises as to when the report should be produced. I am concerned with the applicant’s health conditions and it would appear that there is no utility in an order that requires production of the report at present.
An order might be made that the report be produced:
(1)following the determination of the stay application (in the event that the stay application is dismissed);
(2)if a stay is granted, at such time the stay is lifted; and
(3)at such time that the parties engage in settlement negotiations
whichever is the earlier.
However, I will hear the parties on the timing of production as no submissions were made by either party on this issue.