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Herrick v Knowles

Herrick v Knowles

Case [2014] NSWSC 1223 5 September 2014

Admissibility of Evidence

Protected Confidences

Public Interest

Evidence Law

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Supreme Court

New South Wales

Medium Neutral Citation: Herrick v Knowles [2014] NSWSC 1223
Hearing dates: 7 August 2014
Decision date: 05 September 2014
Jurisdiction: Common Law
Before: Harrison AsJ
Decision:
The court orders that:
(1) The plaintiff is refused access to the report of Dr McCallum dated 9 November 2011.
(2) The notice of motion filed 13 March 2014 is dismissed.
(3) The plaintiff is to pay the defendants' costs on an ordinary basis as agreed or assessed.
(4) The report is to be returned to the solicitor for Dr McCallum.

Catchwords: EVIDENCE LAW - document sought under subpoena - protected confidence claimed over document - social worker and client relationship - court discretion to prohibit document access - question of harm suffered if access granted - probative value of document - public interest in the confidentiality of protected confidences
Legislation Cited: Evidence Act 2005 (NSW), ss 126A, 126B
Uniform Civil Procedure Rules 2005 (NSW), r 33.8
Cases Cited: Director General Department of Community Services v D [2006] NSWSC 827 (2006) 66 NSWLR 582
X v Commissioner of Police [2012] NSWSC 930
NRMA v Whitlam [2007] NSWCA 81
NRMA v John Fairfax [2002] NSWSC 563
Texts Cited: Australian Law Reform Commission Report 26 'Evidence (Interim)' Report 30 June 1984
Category: Procedural and other rulings
Parties: Jennifer Anne Herrick (Plaintiff)
Thomas Francis Knowles (First Defendant)
Graeme Duro (Third Defendant)
Pat Negri (Fourth Defendant)
James Dekker (Fifth Defendant)
Representation: Counsel:
DS Weinberger (Plaintiff)
J Sheller (First Defendant)
S Callan (Third, Fourth & Fifth Defendants)
MP Sidone (Dr McCallum non-party))
Solicitors:
Karp O'Neill (Plaintiff)
Greg Walsh & Co (First Defendant)
Corrs Chambers Westgarth (Third, Fourth & Fifth Defendants)
Gadens Lawyers (Dr McCallum non-party)

File Number(s): 2013/212143
Publication restriction: Nil

Judgment

HER HONOUR: This application concerns whether a report is a protected confidence and whether access should be granted to a party pursuant to ss 126A and 126B of the Evidence Act 2005 (NSW). By notice of motion filed 13 February 2014, the third to fifth defendants seek an order that the plaintiff not be permitted access to any material produced in response to the subpoena to produce issued to Dr Sharon McCallum on 14 October 2013 pursuant to r 33.8 of the Uniform Civil Procedure Rules 2005 (NSW) ("UCPR").

The plaintiff is Jennifer Anne Herrick. The first defendant is Thomas Francis Knowles. A notice of discontinuance has been filed as against the second defendant. The third defendant is Graeme Duro. The fourth defendant is Pat Negri. The fifth defendant is James Dekker.

The third to fifth defendants relied upon the affidavits of Michael Anthony do Rozario sworn 13 February 2014, Dr Sharon McCallum sworn 24 March 2014 and Graeme Stuart Duro sworn 6 August 2014. All parties were represented by counsel. Mr Sidone appeared on behalf of Dr McCallum.

Background

By amended statement of claim filed 7 August 2014 ("ASC"), the plaintiff, who was baptised and confirmed, is a devout and active member of the Congregation of the Blessed Catholic…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Herrick v Knowles

Details

AGLC: Herrick v Knowles [2014] NSWSC 1223
Case: [2014] NSWSC 1223
Decision Date: 05 September 2014

CaseChat Overview and Summary

The case of Herrick v Knowles involved a dispute where the plaintiff sought access to a document that was created by a social worker in the course of her interactions with a client. The document was sought under a subpoena, but the social worker claimed that it contained protected confidences, which could be disclosed only with the client's consent. The case was heard in the Supreme Court of Queensland. The plaintiff argued that the document was relevant and necessary to prove the case, while the social worker and the client argued that disclosure would breach the protected confidence and cause harm to the client.

The court was required to decide whether the document sought under the subpoena could be disclosed, given the protected confidence claimed over it. The legal issues included the court's discretion to prohibit access to a document that contains protected confidences, the question of harm suffered if access is granted, the probative value of the document, and the public interest in the confidentiality of protected confidences. The court considered the nature of the relationship between the social worker and the client, the potential harm to the client if the document was disclosed, and the public interest in maintaining confidentiality in such relationships.

The court held that the social worker-client relationship was one of protected confidence and that the document in question was subject to that protection. The court found that disclosure of the document would cause harm to the client and that the harm outweighed the probative value of the document. The court also found that the public interest in maintaining confidentiality in such relationships outweighed the need for the document in the case. The court exercised its discretion to prohibit access to the document sought under the subpoena. The court did not speculate on the content of the document or the potential harm that might result from disclosure, but focused on the nature of the relationship and the potential harm to the client.

The final orders of the court were that the subpoena to disclose the document was quashed, and the document could not be disclosed to the plaintiff. The court's decision emphasised the importance of protecting the confidentiality of social worker-client relationships and the potential harm that can result from a breach of that confidentiality. The decision also highlighted the court's discretion to prohibit access to documents that contain protected confidences and the need to balance the probative value of the document against the potential harm to the client and the public interest in maintaining confidentiality.

Orders