HUNT & ATKINS
[2012] FamCA 911
FAMILY COURT OF AUSTRALIA
| HUNT & ATKINS | [2012] FamCA 911 |
| FAMILY LAW - PRACTICE AND PROCEDURE – subpoena – where wife objected to leave being granted to inspect documents produced under subpoena by her treating medical practitioner – whether the wife is entitled to claim client legal privilege in relation to her communications with her treating medical practitioner – whether the wife acted in a way that is inconsistent with the maintenance of the privilege at common law or as set out in s 122 of the Evidence Act – whether the husband established that the documents sought to be examined relate to a matter in issue and therefore establish a legitimate forensic purpose – where it was not established that the contentious portions of the documents either related to a fact in issue or that the Court could conclude that there was a legitimate forensic purpose – leave to inspect refused to the extent that the material contained records discussions by the wife about legal advice given to her by her legal representatives. |
| Family Law Act 1975 (Cth) Evidence Act 1995 (Cth): ss 118, 119, 122 |
| Baker v Campbell (1983) 153 CLR 52 Esso Australia Resources Ltd v Federal Commissioner of Taxation (1999) 201 CLR 49 Liberty Funding Pty Ltd v Phoenix Capital Ltd (2005) 218 ALR 283 Mann v Carnell (1999) 168 ALR 86 National Employers’ Mutual General Insurance Association Ltd v Waind & Hill [1978] 1 NSWLR 372 Parry-Jones v Law Society [1969] 1 Ch 1 Pratt Holdings Pty Ltd v Commissioner of Taxation (2004) 136 FCR 357 |
| APPLICANT: | Mr Hunt |
| RESPONDENT: | Ms Atkins |
| FILE NUMBER: | SYC | 425 | of | 2012 |
| DATE DELIVERED: | 6 November 2012 |
| PLACE DELIVERED: | Sydney |
| PLACE HEARD: | Sydney |
| JUDGMENT OF: | Ryan J |
| HEARING DATE: | 30 October 2012 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Ms Gillies |
| SOLICITOR FOR THE APPLICANT: | Robyn Sexton & Associates |
| SOLICITOR FOR THE RESPONDENT: | Paltos Briggs |
Orders
That leave to inspect documents produced by Dr CC in answer to subpoena dated 25 June 2012 is refused in relation to:
(a) Card no. 305;
(b) Card no. 306;
(c) Card no. 307;
(d) Card no. 308;
(e) Card no. 309;
(f) Card no. 310;
(g) Card no. 312;
(h) Card no. 313;
(i) Card no. 314;
(j) Card no. 316;
(k) Card no. 317;
(l) Card no. 318;
(m) Card no. 319;
(n) Card no. 273;
(o) Card no. 280;
(p) Card no. 281.
to the extent that the material contained thereon records discussions by the wife about legal advice given to her by her legal representatives.
That the Docket Registrar inspects the cards referred to in Order 1 and on a copy redacts the material excluded by Order 1.
Leave is granted to the parties and their legal representatives to inspect the copy redacted cards referred to in Orders 1 and 2 above.
The Docket Registrar is to place the original documents produced by Dr CC into a sealed envelope and marked “unable to be inspected”.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Hunt & Atkins has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
| FAMILY COURT OF AUSTRALIA AT SYDNEY |
FILE NUMBER: SYC 425 of 2012
| Mr Hunt |
Applicant
And
| Ms Atkins |
Respondent
REASONS FOR JUDGMENT
Introduction
In the context of property settlement proceedings commenced by Mr Hunt (“the husband”), at his behest, a subpoena for the production of documents was issued to Dr CC. Dr CC is a psychiatrist whom Ms Atkins (“the wife”) has consulted since 2001.
Reliant upon r 15.26 of the Family Law Rules 2004 (“the Rules”) the wife (as a person having sufficient interest in a subpoena) objects to leave being granted to inspect some of the produced documents. Leave to inspect was given in the first instance to the wife’s solicitors so that they could ascertain whether the doctor’s documents contained details of legal advice given to the wife in relation to these proceedings which she relayed to him. It is asserted that the consultations recorded on card numbers identified at paragraph 1 of the wife’s Notice of Objection filed 1 August 2012 contain “confidential communications between [the wife] and her treating medical practitioner in which she discusses legal advice given to her by her legal representatives”.
Issues
A number of questions arise. First, is the wife entitled to claim client legal privilege: pursuant to either the common law or ss 118 and 119 of the Evidence Act 1995 (Cth) (“the Evidence Act”) in relation to her communications with her psychiatrist? Secondly, if she is so entitled whether she has acted in a way that is inconsistent with the maintenance of the privilege at common law or as set out in s 122 of the Evidence Act. Thirdly, whether the husband has established that the documents sought to be examined relate to a matter in issue and therefore establish a legitimate forensic purpose.
In Baker v Campbell (1983) 153 CLR 52 (per Dawson J at 128) it was explained that:
The restriction of the privilege to the legal profession serves to emphasise that the relationship between a client and his legal advisor has a special significance because it is part of the functioning of the law itself. Communications which establish and arise out of that relationship are of their very nature of legal significance, something which would be coincidental in the case of other confidential relationships.
So that it is clear, although there is a clear expectation that a person’s relationship with his or her doctor is cloaked with confidentiality (Australian Medical Code of Ethics 2004 (as revised 2006) neither the Evidence Act nor the common law establishes that the doctor and patient relationship entitles those involved to withhold from a court material which would otherwise be admissible in evidence or from a party to litigation provided inspection was sought for a legitimate forensic purpose. See Parry-Jones v Law Society [1969] 1 Ch 1, National Employers’ Mutual General Insurance Association Ltd v Waind & Hill [1978] 1 NSWLR 372.
The background to this litigation is set out in my reasons for decision delivered on 15 June 2012. They provide additional context by which this issue is determined.
Statutory Provisions
Section 118 of the Evidence Act is set out below:
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.
Section 119 of the Evidence Act provides:
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. (my emphasis)
Discussion
The gravamen of s 118 of the Evidence Act is that it creates a statutory privilege that means confidential communications made and confidential documents prepared for “the dominant purpose of the lawyer, or one or more of the lawyers, providing legal advice to the client” cannot be adduced in evidence. Reference in s 118(c) to “another person” extends the privilege to documents prepared by a third party for a client with the intention that the documents would be provided to a lawyer for the purpose of obtaining legal advice. Pratt Holdings Pty Ltd v Commissioner of Taxation (2004) 136 FCR 357.
The words in s 118 “cannot be adduced” and s 119 “not to be adduced” are significant and limit the application of those sections to the admission of evidence. Here, however, the claim to client legal privilege is not made in relation to the admission of evidence but to processes ancillary thereto; namely disclosure and inspection of documents in pending litigation. In Mann v Carnell (1999) 168 ALR 86 and Esso Australia Resources Ltd v Federal Commissioner of Taxation (1999) 201 CLR 49 the High Court explained that s 118 of the Evidence Act does not govern such ancillary processes and that whether client legal privilege is attached in that setting is to be determined in accordance with the common law.
In Esso the plurality determined that the common law test for client legal privilege is also the dominant purpose test.
Dr CC is to be called as a witness in the wife’s case in relation to two issues. Namely, the impact of alleged domestic violence attributed to the husband and her capacity for paid work. To this end Dr CC swore an affidavit on 30 May 2012 which was filed the following day in which he provides an overview of his professional relationship with the wife. It is his evidence the wife first consulted him in September 2001 and that he has treated her “for adjustment disorder and depression since that time”. The doctor and patient relationship was thus established long before the parties separated. It is not suggested that the wife’s lawyers were involved in her decision to consult Dr CC or that he was retained for the purpose of her ultimately obtaining legal advice or legal services. Plainly he was not.
By letter dated 27 February 2012 the wife’s solicitors sought a report from Dr CC that addressed:
1.The history obtained by you from our client concerning her medical issues that relate to your field.
2.Your findings on examination.
3.The progress of ongoing therapy.
4.Whether our client has the capacity to work going forward, having regard to her medical issues.
Attached to Dr CC’s affidavit are reports dated 27 February 2012 and 20 April 2012. These reports address the matters requested and do not touch upon his discussions with the wife in relation to her legal advice. It is apparent from Dr CC’s affidavit that he was retained by the wife for purposes unrelated to the provision of legal advice or professional legal services, if indeed there is a difference between those terms. It follows that the wife’s communication with Dr CC is not protected by client legal privilege.
Again it is appropriate to observe that s 122 of the Evidence Act is also concerned with whether or not evidence may be adduced. As was made clear in Mann v Carnell waiver of client legal privilege in the context of ancillary litigation processes is determined by reference to the common law. As the High Court in Mann v Carnell explained, the test for waiver is whether there is an inconsistency between the relevant act of the holder of the privilege and the maintenance of the confidence. So that it is clear, it is not a broad balancing act based on fairness, albeit fairness may play a part in determining inconsistency. Liberty Funding Pty Ltd v Phoenix Capital Ltd (2005) 218 ALR 283.
Conclusion
Consistent with Mann v Carnell by calling Dr CC as a witness in her case, had that relationship been cloaked with client legal privilege, the wife’s privilege would have been lost.
However, that is not the end of the matter. For inspection to be given the documents must relate to a fact in issue. Unless this is established not only would production of the documents fail to meet a test of relevance, there is no basis upon which the Court could conclude that there is a legitimate forensic purpose which, in light of the wife’s objection, would warrant leave to inspect being given. (National Employers’ Mutual General Insurance Association Ltd v Waind & Hill). In short, it was not established that the contentious portions of the documents either related to a fact in issue or that the Court could conclude that there was a legitimate forensic purpose which justified inspection. It follows that leave to inspect will be refused.
Because the documents under objection also contain material to which no objection is taken, in the event that the wife was successful, it is agreed that the Court (a Registrar) should examine the documents referred to in paragraph 1 of the wife’s Notice of Objection and redact those parts that disclose the wife’s legal advice. For the avoidance of doubt, leave will be given to inspect the redacted documents whereas the original documents will be placed in a sealed envelope retained by the Court and identified as unable to be inspected.
I certify that the preceding eighteen (18) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Ryan delivered on 6 November 2012.
Associate:
Date: 6 November 2012