Jones v Phelps and Tobin (Ruling)

[2011] VCC 1204

IN THE COUNTY COURT OF VICTORIA Revised

Not Restricted

AT MELBOURNE
CIVIL DIVISION
DAMAGES AND COMPENSATION

MEDICAL DIVISION

Case No. CI-03-07747

DESMOND JONES	Plaintiff
v
GRANT PHELPS	First Defendant
and
STEPHEN TOBIN	Second Defendant

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JUDGE:	HIS HONOUR JUDGE SACCARDO
WHERE HELD:	Melbourne
DATE OF HEARING:	9 February 2011
DATE OF RULING:	18 July 2011
CASE MAY BE CITED AS:	Jones v Phelps and Tobin (Ruling)
MEDIUM NEUTRAL CITATION:	[2011] VCC 1204

RULING

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Catchwords: EVIDENCE – Uniform Evidence Act 2008, s.131 – privilege – obligation of claimant for privilege to establish the connection between the subject material and the privilege claimed.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	No appearance	-
For the Defendants	Mr Robert Harper	John Ball & Sons
HIS HONOUR:

1          In Reasons for Judgment which I delivered in this matter on 11 February 2011,[1] I reserved for further argument the question as to whether the plaintiff was entitled to rely on the privilege established by s.131 of the Uniform Evidence Act 2008 (“the Act”) in order to deny the defendants access to the documents the subject of a subpoena issued by the defendants to the National Australia Bank dated 10 November 2010 which required the Bank to produce documents identified as:

[1] [2011] VCC 140

(i)	complete personnel/employment file relating to the plaintiff, Mr Desmond Jones (DOB 08.03.1953), of Havenstock Drive, Yarrawonga (formerly of 8 Douglas Avenue, Swan Hill);
(ii)	complete compensation file in respect of the plaintiff’s claim for WorkCover payments.

2          On 14 April 2011, in the course of an application in which Mr Jones, who is self-represented in this proceeding, did not appear, Mr R Harper of Counsel, who on behalf of the defendants, made further submissions as to the defendants’ entitlement to access to the subpoenaed material, in the course of which he relied upon the decision of Judd J in Biovision 220 Pty Ltd & Anor v CGU Insurance Limited & Anor.[2] It was Mr Harper’s submission that the decision in Biovision compelled Mr Jones to satisfy me that the documents contained within the subpoenaed file were such that the privilege established by s.131(1) of the Act should be invoked.

[2] [2010] VSC 589 (15 December 2010)

3          On 14 April 2011, I reserved my decision in the application on the basis that I would allow Mr Jones twenty-one days to provide any material upon which he sought to rely in support of an argument that the defendants should be denied access to the subpoenaed documents on the grounds of privilege.

4          In response to this direction, Mr Jones, by letter dated 9 May 2007, asserted:

(i)	that the documents contained within his personnel/employment file were not relevant; and
(ii)	that he had no knowledge of the material which was contained in the personnel/employment file.

5          In Biovision, Judd J held that before the privilege established by s.131 of the Act is enforced, the claimant for privilege must establish by evidence the “proper connection” between the privilege established by the section and the document the subject of the application. At paragraph 52, his Honour commented:

“Whether the requirement for the connection is formulated as a ‘proper connection’ or a ‘direct connection’, the claimant for privilege must establish the connection by evidence. That will ordinarily require evidence of the circumstances in which the document was prepared and the relevant context. Content cannot be divorced from context. If the underlying policy considerations are to be given effect in the application of s 131(1)(b), there must be evidence to establish the facts to support the claim.”

6          I am satisfied that the approach adopted by his Honour as described above is the approach which I should adopt in determining this application.

7          In the present case, Mr Jones has failed to provide any material to support an order to invoke the privilege afforded by s.131(1) of the Act. In making this comment, I take into account and make due allowance for the fact that Mr Jones is self-represented. I am satisfied however that Mr Jones has been provided with such information as was required to alert him to his obligation to provide any material which he wished to rely upon in order to invoke the protection of the Act;[3] and that his failure to do so is such that the defendants should have access to the material produced by the National Australia Bank in response to the subpoena served upon the bank by the defendants dated 10 November 2010.

[3]             In this respect I am referring to the letter from my Associate to Mr Jones dated 18 April 2011, and the material annexed to that letter.

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