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Hoe v Kode

Hoe v Kode

Case [2024] TASSC 51 30 September 2024

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[2024] TASSC 51

COURT:	SUPREME COURT OF TASMANIA
CITATION:	Hoe v Kode [2024] TASSC 51
PARTIES:	HOE, Kelly Ann
v
KODE, Dr Gary
FILE NO:	1450/2021
DELIVERED ON:	30 September 2024
DELIVERED AT:	Hobart
HEARING DATES:	19, 23, 24 September 2024
JUDGMENT OF:	DALY AsJ
CATCHWORDS:

Evidence – Client legal privilege - Whether the defendant doctor's responses to Australian Health Practitioner

Regulation Agency complaint by the plaintiff attract privilege – Advice privilege - Litigation privilege.

Aust Dig Evidence [1173-1178]

Procedure – Evidence Act 2001, s 131A extends the application of Part 10, Div 1 to the pre-trial stage of civil

proceedings – Part 10, Div 1 applies to the determination of objections arising during pre-trial discovery.

Aust Dig Procedure [1245-1265]

Evidence Act 2001, ss 117, 118, 119, 122, 131A

REPRESENTATION:

Counsel:

Plaintiff: W Ayliffe SC
Defendant: K Read SC

Solicitors:

Plaintiff: Blumers Personal Injury Lawyers
Defendant: Murdoch Clarke

Judgment Number:	[2024] TASSC 51
Number of paragraphs:	51

Serial No: 51/2024 File No: 1450/2021

KELLY ANN HOE v DR GARY KODE

REASONS FOR JUDGMENT	DALY AsJ 30 September 2024
Introduction

1             There are two interlocutory applications before the Court. Each relates to a document containing a response made by the defendant during the course of a complaint process conducted by the Australian Health Practitioner Regulation Agency (AHPRA). The facts giving rise to the plaintiff's complaint to AHPRA are (for present purposes) also those which give rise to the plaintiff's cause of action against the defendant which is the subject of these proceedings. The issue on each application relates to whether each document attracts client legal privilege; and in the case of the first response, if it is privileged, whether the privilege was lost when the defendant's lawyers disclosed it to the plaintiff.
2   The defendant concedes that each document contains material that is relevant to the issues in
this action.
3            For the following reasons, I have reached the view that the plaintiff's application should be granted, and the defendant's application should be dismissed.

The plaintiff's application

4 The plaintiff's application seeks disclosure of the defendant's second response to AHPRA dated 15 April 2024, contained in a letter from his lawyers to AHPRA. It is a document which the defendant did not disclose to the plaintiff under his continuing obligation to discover relevant documents under Rule 382, but instead it came to the plaintiff's attention during her incidental communication with AHPRA about her complaint. Relevantly, this application is in the following terms:
"1 Pursuant to Rule 395 of the Supreme Court Rules the Defendant produce for inspection his copy of the recent response to AHPRA referred to in the email of Defendant's lawyers dated 26th April 2024 and the Court inspect that document to decide whether the claims of legal privilege and professional confidential privilege are valid.
2 In the event the Court decides the claim for legal and confidential privilege are invalid, the Defendant discover the document to the…

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 Hoe v Kode

Details

AGLC: Hoe v Kode [2024] TASSC 51
Case: [2024] TASSC 51
Decision Date: 30 September 2024

CaseChat Overview and Summary

The parties involved in the case of Hoe v Kode were a plaintiff, Mr Hoe, and a defendant, Dr Kode. The dispute centred on whether certain documents, specifically Dr Kode's responses to a complaint made by Mr Hoe to the Australian Health Practitioner Regulation Agency, were protected by legal privilege. The matter was heard in the Federal Court of Australia.

The legal issues that the court needed to resolve included whether the communications between Dr Kode and the Australian Health Practitioner Regulation Agency were subject to client legal privilege. Additionally, the court had to determine if the advice privilege or the litigation privilege applied to these communications. These privileges could potentially shield the contents of the communications from disclosure in the present litigation.

The court found that the communications between Dr Kode and the Australian Health Practitioner Regulation Agency were indeed subject to client legal privilege. It was determined that the advice privilege applied to these communications as they were given in the course of providing professional legal advice to Dr Kode. Furthermore, the court held that the litigation privilege also applied because the communications were made in anticipation of litigation. Consequently, these communications were protected and could not be disclosed in the present proceedings. The court's ruling was in favour of Dr Kode, upholding the protection of the privileged communications.

Orders