Jefferson-Taite v Lewis
[2016] ACTCA 19
•17 June 2016
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
COURT OF APPEAL
Case Title: | Jefferson-Taite v Lewis |
Citation: | [2016] ACTCA 19 |
Hearing Date: | 11 May 2016 |
DecisionDate: | 17 June 2016 |
Before: | Penfold, Burns and Jagot JJ |
Decision: | 1. The appeal be allowed. 2. The order of the Court below dated 26 February 2016 be set aside and in lieu thereof it be ordered that the application in proceedings dated 3 April 2014 be dismissed. 3. The respondent to the appeal (the plaintiff in the Court below) pay the appellants’ (the defendants’ in the Court below) costs of the appeal and of the application in the Court below, as agreed or assessed. |
Catchwords: | STATUTORY INTERPRETATION – Appeal from interlocutory judgment – client legal privilege – express abrogation of client legal privilege prior to commencement of court proceedings by s 109(2) of Road Transport (Third Party Insurance) Act 2008 (ACT) – whether pt 4.3 of Road Transport (Third Party Insurance) Act 2008 (ACT) operates following commencement of court proceedings – appeal allowed. |
Legislation Cited: | 1 Civil Law (Wrongs) Act 2002 (ACT), ss 68, 75; ch 5 2 Court Procedures Rules 2006 (ACT), rr 601, 609, 673; pt 2.8 3 Evidence Act 2011 (ACT), ss 118, 128, 130; pt 3.10 4 Legislation Act 2001 (ACT), ss 6, 6(2), 16, 126, 139, 139(1), 140, 141, 142, 171(1), 171(3) 5 Road Transport (Third-Party Insurance) Act 2008 (ACT), ss 5A(e), 76, 77, 84, 84(1), 97, 97(2), 101, 102, 102(b), 104, 105, 105(2)(a), 105(2)(b), 109, 109(2), 112, 113, 113(2), 114, 115, 115(2), 136(1), 137, 146, 147, 148, 149; pts 4.1, 4.2, 4.3, 4.4, 4.5, 4.6, 4.7, 4.8, 4.9; ch 4 6 Supreme Court Rules 1937 (ACT) |
Cases Cited: | Best v Bardsley and Insurance Australia Ltd (2013) 278 FLR 134 Cleary v Rinaudo (2013) 8 ACTLR 71 Lewis v Jefferson-Taite [2016] ACTSC 29 |
Parties: | Benjamin Jefferson-Taite (First Appellant) Insurance Australia Limited t/as NRMA Insurance ACN 000 016 722 (Second Appellant) Edward Lewis (Respondent) |
Representation: | Counsel Mr K Rewell SC (Appellants) Mr R Crowe SC with Mr D Crowe (Respondent) |
| Solicitors Sparke Helmore (Appellants) Maliganis Edwards (Respondent) | |
File Number: | ACTCA 8 of 2016 |
Decision under appeal: | Court: ACT Supreme Court Before: Mossop AsJ Date of Decision: 26 February 2016 Case Title: Lewis v Jefferson-Taite Citation: [2016] ACTSC 29 |
PENFOLD J:
I have had the advantage of reading in draft the reasons of Burns and Jagot JJ. I agree with their conclusions, with the reasons for those conclusions, and with the orders they propose. I would add to their Honours’ reasons some further comments about interpreting the Road Transport(Third-Party Insurance) Act 2008 (ACT) (the TPI Act).
The primary judge made the following comments as one of his reasons for concluding that s 105 of the TPI Act continued to operate after court proceedings had been commenced (at [14]):
The structure of the Act and Ch 4 as a whole: The structure of the Act and ch 4 is not such as to indicate that the provisions of ch 4 or pt 4.3 only apply to the period prior to the commencement of court proceedings. There is some temporal logic in the structure of ch 4, in ... that it is only in pt 4.7 that the requirement for a compulsory conference is reached, in pt 4.8 mandatory final offers are dealt with and pt 4.9 addresses court proceedings. There is, therefore, a structure which is consistent with the earlier provisions, in particular pt 4.3, applying only prior to the commencement of court proceedings. However, there is no indication in, for example, the heading to ch 4 or any of the parts of ch 4 that indicates (as it did in Cleary) that the parts are confined to a particular period. Further, any temporal cascade within ch 4 is undermined by the fact that some obligations that appear prior to pts 4.7, 4.8 and 4.9 apply both before and after the commencement of court proceedings. For example, the provisions of pt 4.6 which impose obligations on a respondent to pay for medical expenses and rehabilitation services are neither expressly, nor by any implication confined to the period prior to the commencement of court proceedings and it would be inconsistent with the purposes of the TPI Act if they were so confined.
His Honour later said:
18.Consistency with the CLW Act: Counsel for the plaintiff usefully summarised the similarities between the provisions of the CLW Act and the provisions of the TPI Act in particular, the similarity in the terms of ss 101, 104 105 and 109 of the TPI Act with ss 63, 64, 68 and 72 of the CLW Act.
19.Section 50 of the CLW Act provides that ch 5 of that Act applies to claims to which ch 4 of the TPI Act applies. There are a number of points that arise from this. First, it might be argued that the provisions in the two Acts should be interpreted so as to have similar scope. However, if that was the case, it is not clear why the provisions in the TPI Act were included if their effect was simply to repeat the effect of the existing provisions in the CLW Act. Second, the TPI Act is a subsequent Act and, in contrast to the CLW Act, it has been drafted without any express confinement to the “pre-court” period. There is nothing in the text or relevant extrinsic materials that indicates an intention that the Acts should have the same effect over the same field.
20.Because of the lack of a clear legislative intention arising from relationship between the provisions in these parts of the two Acts I do not think it is possible to interpret ch 4 of the TPI Act on the basis that it was intended to cover the same period as ch 5 of the CLW Act. Instead, in my view, the TPI Act should be interpreted based on the text and structure of the legislation as it is drafted, but having regard to the desirability of avoiding anomalies arising from the operation of the two overlapping legislative schemes.
His Honour’s consideration of the structure of the TPI Act and of ch 4 of that Act was appropriate, but in my view it did not go far enough. A higher-level examination of the structure of that Act and the Civil Law (Wrongs) Act 2002 (ACT) (the CLW Act), most readily achieved by comparing the respective tables of contents, reveals:
(a)the differences in the structures of the two Acts, and a reason for those differences (in particular, that the TPI Act deals with one kind of negligence claim, whereas the CLW Act deals with all negligence claims and many other kinds of civil wrongs that require different kinds of specific provisions); and
(b)the underlying similarity in the structures of the relevant parts of the two Acts, despite differences in the way different units of the Acts are titled.
The relevant aspects of the structure of each Act are compared below:
Road Transport (Third-Party Insurance) Act Civil Law (Wrongs) Act Chapter 4 Motor accident claims Chapter 5 Personal injuries claims—pre-court procedures Part 4.1 Preliminary—ch 4 Part 5.1 Preliminary—ch 5 Part 4.2 Motor accident claims procedures Part 5.2 Claims procedures Part 4.3 Obligations to give documents and information Part 5.3 Obligations of parties to give documents and information Part 4.4 Enforcement of pt 4.2 and pt 4.3 Part 5.4 Other provisions—pre-court procedures Part 4.5 Expert reports Part 4.6 Respondent to pay for medical expenses and rehabilitation services Part 4.7 Compulsory conferences before court proceedings Part 4.8 Mandatory final offers Part 4.9 Court proceedings Part 4.9A Damages for non‑economic loss Chapter 7 Damages
In each Act, pre-court procedures are clearly separated from procedures after action is commenced.
Chapter 5 of the CLW Act is specified to apply to pre-court procedures in personal injuries claims.
The TPI Act has no heading referring to “pre-court procedures”, but instead it has pt 4.2 (which requires claims to be made before action may be brought), and pts 4.3 to 4.8, which deal with essentially the same matters as are provided for in ch 5 of the CLW Act. The application of those parts to pre-court procedures is not identified by any mention of pre-court procedures as such, but it is in my view almost as explicitly indicated by the heading to pt 4.9, “Court proceedings”. That is, only in pt 4.9 does the legislation move from providing for pre-court procedures into making provisions about actions brought in the court.
Accordingly, in saying that the TPI Act “has been drafted without any express confinement to the ‘pre-court’ period”, his Honour has overlooked the express indication in the heading to pt 4.9 that the following provisions are about court proceedings, and the clear implication that the previous provisions related to the pre-court period.
It is also apparent from a comparison of the tables of contents that the drafter of the TPI Act decided to deal with motor vehicle claims in a single chapter (perhaps because that Act also deals with several other related but very different aspects of motor vehicle accident regulation, such as the requirement for vehicles to carry third party insurance and the regulation of third party insurers). That excluded the possibility of using “Pre-court procedures” as a chapter heading (as was done in the CLW Act), although it would not have prevented the drafter combining pts 4.2 to 4.8 into a single part headed “Pre-court procedures” followed by the current pt 4.9 (re-numbered appropriately). On the other hand, the use of the heading “Court proceedings” for pt 4.9 could fairly have been seen as adequate to clarify that the preceding six parts were equivalent to the CLW Act provisions contained in ch 5.
| I certify that the preceding ten [10] numbered paragraphs are a true copy of the Reasons for Judgment of her Honour Justice Penfold. Associate: David Hoitink Date: 17 June 2016 |
BURNS AND JAGOT JJ:
The issue in this appeal is whether the primary judge’s decision, that the appellants should be ordered to give to the respondent a copy of a medical report under s 115(2) of the Road Transport (Third-Party Insurance) Act 2008 (ACT) (the TPI Act), was correct (see Lewis v Jefferson-Taite [2016] ACTSC 29). The primary judge was satisfied that s 105 of the TPI Act, which imposes an obligation on a party to a motor accident claim to give certain documents to another party, operates irrespective of the commencement of court proceedings. In the words of the primary judge at [24]:
While the matter appears to me to be relatively finely balanced, ultimately, the text of ss 102, 104 and 105 is sufficient to impose an obligation that extends beyond the commencement of proceedings and there are not sufficient matters in the context in which those provisions appear, the structure of the Act generally, or its relationship with the CLW Act [Civil Law (Wrongs) Act 2002 (ACT)], to warrant an implication confining their operation to the period before court proceedings are commenced.
We consider that the contrary construction is to be preferred. As a result, we consider that the appeal should be allowed, the order of the primary judge that:
Within 14 days the second defendant disclose to the plaintiff the report of Dr Uthum Dias prepared following his appointment with the plaintiff on 21 April 2015, but the second defendant may redact passages in that report containing only statements of opinion.
should be set aside and, in lieu thereof, an order should be made that the application in the proceeding dated 3 April 2014 be dismissed. We also consider that the respondent to the appeal (the plaintiff in the Court below) should pay the appellants’ (the defendants’ in the Court below) costs of the appeal and of the application in the Court below, as agreed or assessed.
Our reasons follow.
The facts are uncontentious. On 7 September 2010 the respondent was involved in a motor vehicle accident. On 3 April 2014 the respondent commenced these proceedings. On 21 April 2015, as required by the second appellant, the respondent attended a medical examination by Dr Uthum Dias, who subsequently prepared a medical report for the second appellant. The appellants do not propose to rely on the report in the proceedings. The respondent sought a copy of the report which the appellants refused on the grounds of client legal privilege. The respondent applied for an order that that the second appellant be required to give him the report relying on s 115(2) of the TPI Act.
The objects of the TPI Act include encouraging the speedy resolution of personal injury claims resulting from motor accidents (s 5A(e)).
Chapter 4 of the TPI Act concerns motor accident claims. Relevant definitions in s 76 include:
complying notice of claim means a notice of claim, under section 84 (Notice of claim) or section 91 (Claimant may add later respondents), that is given as required under this part.
…
court, for a motor accident claim, means—
(a) if a proceeding based on a motor accident claim has been started—the court hearing the proceeding; or
(b) if no proceeding based on the motor accident claim has been started—a court with jurisdiction to hear the motor accident claim.
By s 77 “motor accident claim”, for a motor accident, means a claim for damages for personal injury caused by the motor accident and includes, for a fatal injury, a claim by the dead person's dependants or estate.
Also in ch 4 is s 84(1), which provides that:
Before a claimant for a motor accident claim brings a court proceeding based on the claim against a respondent for the claim, the claimant must give the respondent written notice of the claim (the notice of claim).
Section 97 imposes obligations on a respondent who receives a motor accident claim, within six months of receipt, (amongst other things) to take any reasonable steps necessary to find out about the motor accident for the motor accident claim, tell the claimant whether liability is admitted or denied, make a fair and reasonable estimate of the damages to which the claimant would be entitled in a proceeding for the motor accident claim against the respondent, and either make a written offer, or counteroffer, of settlement to the claimant setting out in detail the basis on which the offer, or counteroffer, is made or settle the motor accident claim by accepting an offer made by the claimant. By s 97(2) an offer, or counteroffer, of settlement must be accompanied by a copy of medical reports, assessments of cognitive, functional or vocational capacity and all other material, including documents relevant to assessing economic loss, in the offerer’s possession or control that may help the person to whom the offer is made make a proper assessment of the offer.
Key provisions for the present appeal which form part of ch 4 are contained in pt 4.3 which is headed “Obligations to give documents and information”. In pt 4.3, s 101 provides that:
The purpose of this part is to put the parties for a motor accident claim in a position where they have enough information to assess liability and quantum for the motor accident claim.
Section 102 defines a “required document”. The definition includes “a report, or surveillance film, about the claimant’s medical condition or prospects of rehabilitation” (s 102(b)).
Sections 104 and 105 are mirroring provisions for claimants and respondents. Because the report of Dr Dias was obtained by the appellant, the respondent to the motor accident claim, it is s 105 that is relevant. Section 105 is in these terms:
(1)A respondent for a motor accident claim must give the claimant for the motor accident claim–
(a)a copy of each required document that is–
(i)in the respondent’s possession; and
(ii)directly relevant to a matter in issue in the motor accident claim; and
(b)if the claimant asks the respondent for any of the following information–the following information:
(i)if the information is in the respondent’s possession—the circumstances of, or the reasons for, the motor accident for the motor accident claim; or
(ii)if the respondent is the insurer for the motor accident claim–information that can be found out from the insured person about the circumstances of, or the reasons for, the motor accident for the motor accident claim.
(2)The respondent must give the copies mentioned in subsection (1) (a)—
(a)not later than 1 month after the day the respondent received, or is taken to have received, the claimant's complying notice of claim; or
(b)if a required document comes into the respondent's possession later—not later than 7 days after the day the required document comes into the respondent's possession.
(3)The respondent must respond to a request under subsection (1) (b) not later than 1 month after the day the respondent receives the request.
(4)If a claimant requires information given by a respondent under this section to be verified, the respondent must give the claimant a statement verifying the information.
...
(5)If a respondent fails, without proper reason, to comply fully with this section, the respondent is liable for costs to the claimant resulting from the failure.
Section 109, to the extent relevant, provides that:
(1)A party is not obliged to give a document or information to another party under this part if the document or information is protected by client legal privilege.
(2)However, an investigative report, medical report or report relevant to the claimant’s rehabilitation must be given even though otherwise protected by client legal privilege.
By s 112 a person commits an offence if they are obliged to give a document under pt 4.3 but do not do so.
Section 113 provides that:
(1)This section applies if a party for a motor accident claim fails to comply with a provision of this part requiring the party to disclose a document or information to another party.
(2)The document or information cannot be used by the party in a later court proceeding based on the motor accident claim, or the deciding of the claim, unless the court orders otherwise.
(3)If the document or information comes to the other party’s knowledge, the document or information may be used by the other party.
By s 114:
The documents and information given under this part are protected by the same privileges as if disclosed in a proceeding in the Supreme Court.
Part 4.4 deals with the enforcement of pts 4.2 and 4.3. By s 115:
(1)This section applies if a party (the first party) fails to comply with a duty imposed under—
(a)part 4.2 (Motor accident claims procedures); or
(b)part 4.3 (Obligations to give documents and information).
(2)The court may, on the application of a party to whom the duty is owed, order the first party to take stated action to remedy the noncompliance not later than a day stated by the court.
(3)The court may make consequential or ancillary orders, including orders about costs.
Part 4.5 concerns expert reports.
Part 4.6 deals with payment of medical expenses and the costs of rehabilitation.
Part 4.7 is headed “Compulsory conferences before court proceedings”. By s 136(1):
Before a claimant for a motor accident claim brings a court proceeding based on the motor accident claim, the parties for the motor accident claim must have a conference (the compulsory conference).
Part 4.8 concerns mandatory final offers which must be given if the compulsory conference has been dispensed with under s 137 or the motor accident claim is not settled at the compulsory conference.
Part 4.9 is headed “Court proceedings”. Sections 147, 148 and 149 identify the time limits in which a claimant may begin a court proceeding based on the motor accident claim depending on whether there has or has not been a compulsory conference or mandatory offer made. Section 146 permits court proceedings to be brought outside those time limits but provides that:
…
(2)The claimant may still begin the proceeding but the court may order the claimant to pay the respondent's costs caused by the delay.
(3)The respondent may apply to the court for an order deciding a time by which the claimant must begin the proceeding.
(4)If the claimant does not begin a proceeding in accordance with a court order made on application under subsection (3), the motor accident claim is barred.
Also relevant is the Legislation Act 2001 (ACT) (the Legislation Act). Section 171(1) of that Act provides that:
An Act or statutory instrument must be interpreted to preserve the common law privilege in relation to client legal privilege (also known as legal professional privilege).
Section 171(3) provides that:
This section is a determinative provision.
Section 6 of the Legislation Act is in these terms:
(1)A provision of this Act must be applied to an Act or statutory instrument, in accordance with the terms of the provision, except so far as it is displaced.
(2)A determinative provision may be displaced expressly or by a manifest contrary intention.
(3)A non-determinative provision may be displaced expressly or by a contrary intention.
NoteFor the distinction between a ‘manifest contrary intention’ (see s (2)) and ‘contrary intention’ (see s (3)), see the examples in this section.
(4)The declaration of a provision as ‘determinative' indicates that it is the intention of the Legislative Assembly that, if the provision is to be displaced at all in a particular case, a more deliberate displacement is required than if the provision were a non-determinative provision.
(5)This section applies despite any presumption or rule of interpretation.
By s 139(1) of the Legislation Act:
In working out the meaning of an Act, the interpretation that would best achieve the purpose of the Act is to be preferred to any other interpretation.
By s 140 of the Legislation Act, in working out the meaning of an Act, the provisions of the Act are to be read in the context of the Act as a whole. By ss 141 and 142, material not forming part of the Act may be considered in working out the meaning of an Act.
The appellant placed substantial weight on the operation of s 171(1) of the Legislation Act, and contended that the primary judge’s approach to the construction of the TPI Act was inconsistent with s 171(1) as a determinative provision. According to the appellant the primary judge erred by not recognising that what was required was an express provision in or manifest contrary intention exhibited by the TPI Act to the effect that client legal professional privilege should be abrogated after a court proceeding has been brought.
Although we have difficulty with this approach to construction (explained below), we accept the appellants’ ultimate position that the obligation imposed on them by s 105(2)(b) does not apply to Dr Dias’s report because that report was prepared and came into the appellants’ possession after the respondent brought court proceedings.
The difficulty we have with some of the submissions for the appellants is that they do not confront s 109(2) of the TPI Act. Section 109(2) expressly abrogates the common law privilege in relation to client legal privilege for a required document which is an investigative report, medical report or report relevant to the claimant’s rehabilitation. Accordingly, s 6(2) of the Legislation Act, which provides that s 171(1), as a determinative provision, may be displaced expressly or by a manifest contrary intention, is satisfied. As a result, if any document is a required document subject to the obligations imposed by pt 4.3 of the TPI Act, s 109(2) operates according to its terms – if the required document is an investigative report, medical report or report relevant to the claimant’s rehabilitation, the document must be given even though otherwise protected by client legal privilege.
The issue in the present case is whether the report of Dr Dias is subject to any obligation under pt 4.3 of the TPI Act given that the report was prepared and came into the appellants’ possession after the respondent brought a court proceeding. This issue is not resolved by asking whether there is an express provision in or manifest contrary intention exhibited by the TPI Act abrogating client legal privilege insofar as it applies to Dr Dias’s report. This is because if the report is subject to an obligation under pt 4.3, then there is an express provision abrogating client legal privilege – s 109(2) – which it is not in dispute would apply. If the report is not subject to an obligation under pt 4.3, then s 109(2) does not apply and, it is also not in dispute, no other provision otherwise would abrogate client legal privilege. The issue, accordingly, is whether pt 4.3 of the TPI Act applies to Dr Dias’s report at all.
The best argument in favour of pt 4.3 applying to Dr Dias’s report is that s 105(2)(b) of the TPI Act expressly contemplates that a required document may come into a party’s possession “later” (that is, later than the time at which the complying notice of claim is received) and does not expressly state that the obligation ceases at any time, let alone on the bringing of court proceedings. Otherwise, the respondent’s argument was that construing pt 4.3 to impose a continuing obligation after the bringing of court proceedings would best achieve the purpose of the TPI and thus is the construction to be preferred under s 139 of the Legislation Act.
We consider that the contrary arguments carry more weight.
It is apparent from the structure of the TPI Act that it provides for a sequence of events to enable the resolution of motor accident claims. While pt 4.3 is not expressly stated to impose obligations which apply before court proceedings are brought, there are a number of indicators to that effect.
The first indicator is the structure of the legislation. Under this structure, the relevant initiating step is notice of a claim (s 84). Another, necessarily subsequent step, is compliance by the insurer with the obligations imposed by s 97. We note that, given the content of the obligations under s 97, it is likely that medical reports will be brought into existence for the purpose of the insurer making a fair and reasonable estimate of the damages to which the claimant would be entitled so that the necessary written offer, or counteroffer, of settlement may be made. So much is apparent from s 97(2) which requires any relevant medical report to be given at the time the offer is made to “help the person to whom the offer is made make a proper assessment of the offer”. Another necessarily subsequent step is the compulsory conference in pt 4.7. As the heading to pt 4.7 discloses, the compulsory conference must occur before a claimant may bring a court proceeding. Then there must be a mandatory final offer. As pt 4.9 makes plain, the time limits for bringing court proceedings are determined by the occurrence (or not) of the compulsory conference and mandatory offer.
This statutory sequence indicates a scheme by which obligations are imposed relevant to each stage of the resolution of the motor accident claim. It also indicates that the obligations imposed by pt 4.3 of the TPI Act apply to the stages before court proceedings are brought. In particular, the TPI Act, unsurprisingly, pre-supposes the existence of courts of relevant jurisdiction to deal with motor accident claims in accordance with their own procedures and practices. This is apparent from the definition of “court” in s 76 and the terms of s 114 (to the effect that documents given under pt 4.3 are protected by the same privilege as if disclosed in a proceeding in the Supreme Court).
The existence of courts with their own practices and procedures is necessarily part of the context in which the TPI Act is to be construed. But for pts 4.1 to 4.8 of the TPI Act, there would be no obligation on any motor vehicle accident claimant or the insurer to disclose documents, or to take any other step not prescribed by the insurance policy, before the commencement of court proceedings. Once court proceedings are commenced, however, the TPI Act operates against the background of existing court practices and procedure, as well as legislation. This context includes multiple procedures by which documents must be disclosed as between parties, including notices to produce, discovery, and the issue of subpoenas. Since 2006 those procedures have been regulated by the Court Procedures Rules 2006 (ACT) (the Court Procedures Rules), pt 2.8 of which concerns “Disclosure”. Rule 601, within pt 2.8, provides that a document is privileged from production under pt 2.8 if it is a document of which evidence could not be adduced, or could not be adduced over the objection of a person, because of the Evidence Act 2011 (ACT) pt 3.10 (“Privileges”) other than under ss 128 and 130 (which deal with the privilege against self-incrimination and matters of state). Client legal privilege is provided for in pt 3.10 of the Evidence Act, s 118.
Rule 673 of the Court Procedures Rules provides that a person must not, without leave of the court or other lawful authority, make use of a document received in accordance with pt 2.8 otherwise than for the proper purposes of the proceeding. This provision reflects the common law in that a party who receives a document in court proceedings must not use the document for any ulterior purpose (referred to as the Harman undertaking, following Harman v Secretary of State for the Home Department [1983] 1 AC 280; [1982] 2 WLR 338). It is the existence of this obligation which is recognised and relied upon by s 114 of the TPI Act. But for s 114, a person given a document under pt 4.3 of the TPI Act would not be subject to a duty, as applies in a court proceeding, to use documents received in the proceedings only for the purpose of the proceedings. As Burns J observed in Best v Bardsley and Insurance Australia Ltd [2013] ACTSC 141; (2013) 278 FLR 134 (Best) at [38]:
The purpose of s 114 is to ensure that documents or information provided under the compulsion of s 109 are afforded the same protections as documents disclosed to this Court in the course of proceedings, so that, for example, the party receiving the documents would not be at liberty to use them except in the claim in which they are produced: see Hearne v Street [2008] HCA 36; (2008) 235 CLR 125.
In other words, pt 4.3 establishes a scheme by which documents are required to be disclosed as between parties against the background of the practices, procedures and legislative provisions by which courts require disclosure once court proceedings are commenced. Under this scheme client legal privilege, to the extent specified in s 109(2), is abrogated. Given that the TPI Act operates against the background of the practices, procedures and legislative provisions by which courts require disclosure once court proceedings are commenced it is unlikely that it was intended that pt 4.3 of the TPI Act should continue to operate after court proceedings have been commenced. If this were the case, there would be two systems operating concurrently requiring the disclosure of documents, one (the court system) which expressly preserves the operation of client legal privilege for all documents disclosed (by operation of r 609 of the Court Procedures Rules) and one (pt 4.3 of the TPI Act) which abrogates client legal privilege for certain documents (by operation of s 109(2)).
The second indicator is that the words “before court proceedings” appear in the heading to pt 4.7 and “Court proceedings” is the heading to pt 4.9. This is express recognition of the sequential nature of the scheme established by pts 4.2 to 4.9 of the TPI Act. The respondent submitted that no significance could be attributed to this reference because it does not appear in pt 4.3 and there is no suggestion that pts 4.5 and 4.6 are similarly confined in their operation. The difficulty with the latter submission is that the substance of pts 4.5 and 4.6, of their nature, are unconnected with court proceedings. Part 4.5 concerns the convening of panels of experts by the Compulsory Third-Party Insurance Regulator. Part 4.6, relating to medical expenses, applies only if the insurer admits liability. The difficulty with the former submission is that the headings are a provision of an Act (ss 16 and 126 of the Legislation Act). The respondent’s submission accords no meaning to the heading to pt 4.9 or the reference to “before court proceedings” in the heading to pt 4.7.
The third indicator is that the word “later” in s 105(2)(b) of the TPI Act is not necessarily supportive of the respondent’s case. In context, it means merely “later” than the receipt of the complying notice of claim referred to in s 105(2)(a). The obligation is thus to give documents in the party’s possession when the claim is made and which come into the party’s possession at a later time. The respondent’s submission, that “later” means at any later time irrespective of whether court proceedings have been commenced, fails to recognise that there must be some temporal limitation on “later”. Read literally, the obligation would continue after a claim had been settled or court proceedings determined. Accordingly, the choice is not between imposing a temporal limitation on the provision or not. It is between imposing one temporal limitation (before court proceedings are commenced) and another (before final determination of court proceedings). The matters referred to above indicate that the former limitation is to be preferred.
The fourth indicator, also in support of the former temporal limitation, is that s 113(2) explicitly recognises that court proceedings are a later step in the statutory sequence than the operation of pt 4.3. Accordingly, s 113(2) refers to “a later court proceeding”. While the provision also refers to “or the deciding of the claim”, we do not consider that assists the respondent. In context, the deciding of the claim is the deciding by the court of the claim in the later court proceedings. In other words, if a party does not comply with pt 4.3 then the consequences prescribed by s 113(2) are that the party cannot use the document in the later court proceedings and the court cannot use it in deciding the claim, unless the court otherwise orders. The respondent suggested that it was difficult to conceive of circumstances where a party might contravene pt 4.3 yet a court would be aware of and wish to use the document. This is not so. A party may be obliged to disclose a document under pt 2.8 of the Court Procedures Rules which ought to have been, but was not, disclosed under pt 4.3 of the TPI Act. In any such case, the party in contravention is precluded from using the document, as is the court even if the other party wishes to use it, unless the court otherwise orders.
In terms of s 139(1) of the Legislation Act, and contrary to the primary judge’s reasoning at [22] – [23], we are not persuaded that the interpretation he preferred would best achieve the purpose of the TPI Act. In particular, given the terms of s 97 of the TPI Act we can see no incentive for (or real possibility of) a party making a forensic decision not to obtain expert advice until after court proceedings have commenced. Further, court proceedings can only be commenced after compliance with s 97, pt 4.3, pt 4.7 (compulsory conferences) and pt 4.8 (mandatory final offers), and within the relatively narrow time constraints imposed by ss 146 to 149 of the TPI Act. These provisions encourage the speedy resolution of personal injuries claims. The provisions of pt 4.9, which operate against a raft of practices, procedures and provisions relevant to a court’s determination of claims, and apply specifically to motor accident claims, also facilitate that purpose. In our view they do so, however, recognising the continued operation of those practices, procedures and provisions, including those which apply to disclosure of documents (now to be found in pt 2.8 of the Court Procedures Rules).
This conclusion, we note, is consistent with the reasoning in Cleary v Rinaudo [2013] ACTCA 32; (2013) 8 ACTLR 71 (Cleary) and Best.
The primary judge considered that the result in Cleary depended on the effect that was to be given to the heading to the part in which s 68 of the Civil Law (Wrongs) Act 2002 (ACT) (the CLW Act) appeared, when there is no equivalent heading in the TPI Act (at [11]). This is a reference to the fact that the equivalent provisions to pt 4.3 of the TPI Act are contained in ch 5 of the CLW Act which is headed “Personal injuries claims–pre-court procedures”. We disagree.
In Cleary Katzmann J, with whom Burns J and Nield AJ agreed, considered that “the purpose of ch 5 [of the CLW Act] is to promote the resolution of disputes without recourse to the courts” (at [47]). While her Honour reasoned that the heading to ch 5 “evinces an intention that the disclosure obligations arise before legal proceedings are instituted” (at [54]), she turned to other factors to decide that the intention so evinced did not extend to the time after court proceedings had been commenced. At [57] Katzmann J observed that s 75 of the CLW Act, the equivalent provision to s 113 of the TPI Act (discussed above), implicitly suggests that the disclosure obligations “apply only in respect of documents that come into the parties’ possession before a proceeding is launched”. At [60], and also consistently with the reasoning above about the TPI Act, her Honour said:
…the purpose of ch 5 is to promote the settlement of claims without litigation. To that end Parliament established a set of protocols for the exchange of information and means of enforcing compliance with them. In my view, these protocols were not intended to apply to parties during litigation. Different protocols operate at that stage. This conclusion is supported by reference to the state of the law when the relevant provisions were introduced. At the time ch 5 was inserted into the [CLW Act], there were other provisions dealing with the settlement of litigation and facilitating the exchange of documents during litigation.
The other provisions which her Honour had in mind, as explained in [61], were the Supreme Court Rules 1937 (ACT), which pre-date the Court Procedures Rules.
In Best Burns J held that the compulsory conference provision, s 139, did not abrogate any privilege. His Honour observed:
35.In coming to this conclusion I am conscious of the general legislative intention with respect to the [TPI Act], of encouraging speedy resolution of claims: s 5A(e) of the Act. It is part of the legislative scheme to achieve this object that parties are required to provide certain documents and information to other parties, so as to facilitate the resolution of claims arising from motor vehicle accidents expeditiously. But the legislature has done so in a structured way, setting limits on the extent to which the rights of parties are abrogated in pursuit of the objects of the Act. A claimant for a motor vehicle accident is obliged to provide to the other party certain documents early in the process of making a claim: s 104 of the Act. This includes some documents that would otherwise be the subject of client legal privilege: s 109(2). The fact that the Act does not require the production of all documents or information otherwise protected by client legal privilege at this early stage demonstrates that the legislature has set limits to the extent that parties are obliged to provide material to achieve the objects of the Act.
36.By the time a compulsory conference takes place, the process of early provision of information concerning the claim contemplated by Pt 4.3 has occurred, and has not resolved the claim. The parties are moving towards an adversarial process of litigation, in which maintenance of client legal privilege is generally considered essential for the proper conduct of proceedings. The second defendant acknowledges as much by its concession that, on its proposed interpretation of s 139, the section would have to be read down so as not to require the production of witness statements, counsel’s advice and the like. There is nothing surprising, absurd or unreasonable in the proposition that the legislature has not, in s 139, abrogated the privilege any further than it did in s 109.
37.It must be accepted that the exclusion of documents protected by client legal privilege from those documents required to be produced under s 139 will potentially reduce the effectiveness of the compulsory conference, and the process of making final mandatory offers provided for in s 141 of the Act….
While addressing a different issue, these observations are consistent with the approach to the construction of the TPI Act which we consider is to be preferred.
For these reasons we conclude that pt 4.3 of the TPI Act, consistently with ch 5 of the CLW Act, applies to documents that come into the possession of a party before court proceedings are commenced but does not apply to documents coming into the possession of a party after court proceedings are commenced. Disclosure of documents within the latter category is regulated by pt 2.8 of the Court Procedures Rules.
| I certify that the preceding fifty paragraphs numbered [11]-[60] are a true copy of the Reasons for Judgment of their Honours Justice Burns and Justice Jagot. Associate: Aaron Moss Date: 17 June 2016 |
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