Illman v Victorian WorkCover Authority (Ruling)
[2021] VCC 80
•11 February 2021
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
| SERIOUS INJURY LIST |
Case No. CI-20-02779
| JEFFREY ILLMAN | Plaintiff |
| v | |
| VICTORIAN WORKCOVER AUTHORITY | Defendant |
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JUDGE: | JUDICIAL REGISTRAR J B GURRY | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 30 November 2020 (via Zoom hearing) | |
DATE OF RULING: | 11 February 2021 | |
CASE MAY BE CITED AS: | Illman v Victorian WorkCover Authority (Ruling) | |
MEDIUM NEUTRAL CITATION: | [2021] VCC 80 | |
RULING
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Subject: PRACTICE AND PROCEDURE
Catchwords: Discovery – application by defendant for further discovery from plaintiff
Legislation Cited: Civil Procedure Act 2010 (Vic), s47(1)(e); Accident Compensation Act 1985 (Vic), s134AB; Evidence (Miscellaneous Provisions) Act 1958 (Vic), s42E(1)
Cases Cited:Harman v Secretary of State for the Home Department [1983] 1 AC 280; Mann v Carnell [1999] HCA 66; Hearne v Street (2008) 235 CLR 125; Fotopolous v Commonwealth Bank of Australia & Anor [2017] VSC 461; Rowe v Silverstein [2009] VSC 157; Uniflex (Australia) Pty Ltd v Hannybel [2001] WASC 138; Davey v Silverstein [2019] VSC 724; Esso Australia Resources & Ors v Plowman (Minister for Energy and Minerals) & Ors (1995) 128 ALR 391; Volunteer Fire Brigades Victoria v CFA (Discovery Ruling) [2016] VSC 573; Bergman & Bergman (No 4) [2008] FamCA 525; Banks & Loffler [2015] FamCA 380; Miller & Murphy [2016] FCCA 974
Ruling:Defendant’s application for further discovery in relation to carer documents and medical reports granted.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr B Johnson | Maurice Blackburn |
| For the Defendant | Mr M Clarke | Wisewould Mahony |
HIS HONOUR:
1 This is an application by the defendant for further discovery from the plaintiff. In particular, to produce three types of documents:
(a) medical reports by Dr Helene Roberts dated 15 March 2018, and Dr Brian Long dated 1 May 2018 (“medical reports”);
(b) the plaintiff’s family law affidavits (“affidavits”); and
(c) documents and records relating to the plaintiff being the carer of his parents, including formal application forms and payments received (“carer documents”).
2 The specific documents the plaintiff objected to, as referenced above, were requested in an email from the defendant’s solicitor to the plaintiff’s solicitor dated 1 September 2020.
3 The plaintiff issued proceedings by way of Originating Motion dated 24 June 2020.
4 The plaintiff seeks leave to bring proceedings for personal injuries arising out of and during the course of employment from an incident alleged to have occurred on or about 16 October 2012, in accordance with s134AB of the Accident Compensation Act 1985.
5 The defendant filed a Notice of Appearance on 5 August 2020.
6 I made timetabling Orders on 11 August 2020, setting the proceeding down for hearing on 17 March 2021.
7 The hearing of this interlocutory application proceeded by way of audio-visual link on 30 November 2020 by consent of the parties and I made an Order pursuant to s42E(1) of the Evidence (Miscellaneous Provisions) Act 1958 (Vic) and s47(1)(e) of the Civil Procedure Act 2010.
8 At paragraphs 7 and 8 of the affidavit of the plaintiff’s solicitor, Aleksander Calic, affirmed 27 November 2020, it was stated that the grounds were that the defendant’s request::
(a) is vexatious;
(b) is oppressive;
(c) constitutes a “fishing expedition”;
(d) has no legitimate forensic purpose; and
(e) is a breach of the implied undertaking that documents used in one proceeding are not to be used for an ulterior purpose.
9 Central to the plaintiff’s objections is that the plaintiff had been involved in recent Family Court proceedings, and material sought by the defendant was obtained or used in those proceedings.
10 I asked Counsel to provide written submissions in support of their arguments regarding the Harman undertaking, after Harman v Secretary of State for the Home Department,[1] and its application to the release of any material. I thank Counsel for their assistance in providing those submissions.
[1][1983] 1 AC 280
11 I propose to consider each class of documents separately.
Medical reports
12 In the defendant’s solicitor’s email of 1 September 2020, a request was made for the discovery of medical reports of Dr Helene Roberts dated 15 March 2018, Dr Brian Long dated 1 May 2018, a referral email from Sally Tyers and letter of instruction to Monica Blizzard.
13 I am satisfied that the material sought is relevant to the proceedings. The request cannot be considered vexatious or oppressive. Nor do I consider the request as “fishing” and consider a legitimate forensic purpose has been established.
14 The plaintiff claims under paragraph (c) and a psychological injury is claimed. The medical evidence which I have read exhibited in the affidavit material suggests causation is very much in issue. There is evidence of other factors which have impacted on the plaintiff’s mental state and some of that material has already been discovered by the plaintiff. Privilege therefore cannot be claimed, as I consider the plaintiff waived privilege by choosing to discover some material and not to disclose other material. That inconsistency I consider amounts to a waiver.
15 As the High Court said in Mann v Carnell[2] at paragraph [29]:
“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.”
[2][1999] HCA 66
Affidavits
16 The plaintiff’s objection is based upon the submission that the Harman undertaking should operate in this instance to prevent the production and/or use of the plaintiff’s family law affidavits.
17 The relevant law, as identified by both parties, is summarised by the High Court in Hearne v Street[3] at paragraph [96] as follows:
“Where one party to litigation is compelled, either by reason of a rule of court, or by reason of a specific order of the court, or otherwise, to disclose documents or information, the party obtaining disclosure cannot, without leave of the court, use it for any other purpose other than that which it was given unless it is received into evidence”.
[3](2008) 235 CLR 125
18 I set out paragraphs 10-15 of the plaintiff’s submissions dated 2 December 2020 to summarise the plaintiff’s arguments:
“10.The plaintiff submits that the Affidavit material sought by the defendant remains subject to the Harman undertaking, and is a classic circumstance in which the type of ‘collateral or ulterior’ use of documents in a different proceeding ought be avoided.
11. The nature of contested family Court litigation is highly personal, emotive, confined to the particular facts of the matter, and necessarily involves persons who are not parties and have no involvement in this case.
12. The plaintiff has sought to accommodate the Defendant’s request by the provision of the following material:
(a) letter from Karen Bird with report dated 26 June 2018;
(b) letter from Karen Bird with report dated 18 October 2018.
13. The plaintiff provided this material before being in possession of the entire family law file, and to the extent necessary the plaintiff respectfully seeks an order from this court releasing him from the Harman undertaking and granting him leave to use the material referred to in paragraph 8 above for the purposes of evidence in this matter.
14. The plaintiff further submits that there is no inconsistency in him seeking a release from his Harman obligations concerning the reports of Karen Bird dated 26 June 2018 and 18 October 2018 whilst opposing the full release of the material sought by the Defendant. The issue is not analogous to a partial waiver of privilege, but rather is concerned with the ‘use’ to which documents can be put. The reports concern the plaintiff’s cognitive capacity from a medicolegal perspective and are different in character and substance to affidavit material that traverses the marital discord.
15. The plaintiff submits that the context of family court proceedings should strongly mitigate against the release of material as sought by the Defendant as the material is not in the ‘public domain’.”
19 I set out paragraphs 6 and 7 of the defendant’s submissions dated 30 November 2020:
“6. Plainly, the Harman obligation is focused on documents obtained by a party in the course of litigation, from another party, that it would not have gained access to but for the court’s coercive powers.
7. This is not the case in the present proceeding. The documents sought by the defendant are the plaintiff’s own documents, being his own Affidavit or Affidavits and his own medical reports. They are not documents obtained from another party by reason of the court’s coercive powers. Accordingly, the defendant submits that no implied undertaking arises such that an order of the court is required allowing the plaintiff to provide the defendant with his own documents.”
20 It has been submitted by the plaintiff that affidavits, as a class of documents, have been held to fall within the implied undertaking. I was referred to the decision of Fotopolous v Commonwealth Bank of Australia & Anor.[4] In particular, paragraph [32], where Derham AsJ said:
[4][2017] VSC 461
“The types of material disclosed to which this principle [the Harman undertaking] applies include:
a) documents inspected after discovery;
b) answers to interrogatories;
…
h) affidavits.”
21 However, there are a number of authorities which would suggest that when an affidavit is produced to a court on a voluntary basis and not by court order or rule, then it should not be subject to the implied undertaking.[5] In particular, I refer to what his Honour Justice J Forrest J said in Rowe v Silverstein,[6] when he held that affidavits filed in support of an application for a Mareva injunction were not covered by the implied undertaking:
“These affidavits were not filed in the course of a compulsory process such as witness statements or answers to interrogatories where rules of a Court or orders of a Court require the production of such material. In this case, the affidavits were filed voluntarily by the Commissioner to obtain the injunction. In Uniflex (Australia) Pty Ltd v Hannybel,[7] Hasluck J held that the implied undertaking did not operate in relation to documents provided in the course of a Mareva injunction as they had been provided voluntarily to support the application in open Court. I agree and apply that proposition here.”
[5]Rowe v Silverstein [2009] VSC 157
[6]Ibid
[7][2001] WASC 138 at paragraphs [141]-[155]
22 Further, in Davey v Silverstein,[8] Richards J found that even where rules of the court require that interlocutory applications be supported by accompanying affidavits, such affidavits were not to be protected by the implied undertaking, because the court does not compel the making of such interlocutory applications.
[8][2019] VSC 724
23 Similarly, the need for the material to have been produced under compulsion was stated by Mason CJ in Esso Australia Resources & Ors v Plowman (Minister for Energy and Minerals) & Ors[9] when he said, at paragraph [403]:
“Because an undertaking is implied, it has not been the practice to condition the making of orders in that way. The implied undertaking is subject to the qualification that once material is adduced in evidence in court proceedings it becomes part of the public domain, unless the court restrains publication of it.
It would be inequitable if a party were compelled by court process to produce private documents for the purposes of the litigation yet be exposed to publication of them for other purposes. No doubt the implied obligation must yield to inconsistent statutory provisions and to the requirements of curial process in other litigation, e.g. discovery and inspection, but that circumstance is not a reason for denying the existence of the implied obligation.”
[9](1995) 128 ALR 391
24 The defendant, in its submissions, argued that the implied undertaking does not apply because the plaintiff’s own affidavits and medical reports were not being obtained as a result of the Court’s coercive powers.
25 The issue for my determination is whether I can make an order granting leave to use the affidavit material from the Family Court proceedings in this matter. I do not believe I can make such an order as I consider such an order should be made by the Family Court. The affidavits were subject to an implied undertaking that they would not be used for any other purpose than the conduct of the Family Court proceedings.
26 In examining a number of decisions where leave was granted for material from Family Court proceedings to be provided in proceedings other than in the Family Court, such leave was granted by the Family Court. Those authorities were:
(a) Bergman & Bergman (No 4),[10] wherein the Family Court authorised a husband to disclose specific material to various relevant police services;
[10][2008] FamCA 525
(b) Banks & Loffler,[11] where the Family Court made Orders permitting the father to provide copies of Court documents and subpoena material to the Director of Public Prosecutions, his criminal law barristers and solicitors, the South Australian Police and the District Court of South Australia;
(c) Miller & Murphy,[12] where the Federal Circuit Court made Orders permitting the husband to use the S11F report in his intervention order proceedings.
[11][2015] FamCA 380
[12][2016] FCCA 974
27 All those decisions reinforce to me that the correct Court to make an order is the Family Court as the affidavits would be used for another purpose for which they were given.
28 Any application by the defendant seeking the affidavit material from the plaintiff should be brought at the Family Court.
Carer Documents
29 I was informed that the plaintiff is in receipt of a government benefit for the purpose of providing care to his parents. The defendant has sought discovery of documents relating to the application for the benefit and payments received. I consider those documents should be discovered. As was said by J Forrest J in Volunteer Fire Brigades Victoria v CFA (Discovery Ruling)[13] at paragraph [41]:
“As long as the document in the possession of a party goes to a real (and not peripheral) issue to be determined at the trial then, absent any proportionality consideration, it is relevant and ought to be discovered.”
[13][2016] VSC 573
30 The capacity of the plaintiff to undertake activities of daily life will be a matter for evidence. The application for the government benefit must contain material relevant to what assistance is provided to the parents and what activities the plaintiff would perform in providing that assistance.
31 In those circumstances, that material goes to the real issue to be determined at the trial and is relevant and ought to be discovered.
32 I will therefore grant the defendant’s application for further discovery in relation to:
(i) the medical reports of Dr Helene Roberts dated 15 March 2018, and Dr Brian Long dated 1 May 2018;
(ii) the documents and records relating to the plaintiff, being the carer of his parents, including formal application forms and payments received.
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