Kelly v Transport Accident Commission (Ruling No 1)
[2020] VCC 1098
•28 July 2020
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
| SERIOUS INJURY LIST |
Case No. CI-19-01352
| BENJAMIN HAROLD KELLY | Plaintiff |
| v | |
| TRANSPORT ACCIDENT COMMISSION | Defendant |
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JUDGE: | JUDICIAL REGISTRAR GURRY | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 14 July 2020 | |
DATE OF RULING: | 28 July 2020 | |
CASE MAY BE CITED AS: | Kelly v Transport Accident Commission (Ruling No 1) | |
MEDIUM NEUTRAL CITATION: | [2020] VCC 1098 | |
RULING
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Subject:PRACTICE AND PROCEDURE
Catchwords: Discovery – production – objection – subpoenas for production – defendant issued six form 42AA subpoenas for production to registrar relating to plaintiff – objection by plaintiff to release of subpoenaed records to defendant on the basis that records may contain documents subject to privilege – not all records received by the Court
Legislation Cited: Transport Accident Act 1986, s93(17); Limitation of Actions Act 1958, s23A; County Court Civil Procedure Rules 2018
Cases Cited: Walker-Shipley v State of Victoria [2003] VSC 178; Mann v Carnell [1999] HCA 66
Ruling:Leave to the plaintiff’s solicitor for access to the material to inspect and copy records. Plaintiff’s solicitor then to remove or redact any material ordered not to be produced.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr G A Worth | Melbourne Injury Lawyers |
| For the Defendant | Ms J Frederico | Solicitor to the Transport Accident Commission |
HIS HONOUR:
1 The plaintiff issued an Originating Motion on 26 March 2019 seeking a determination pursuant to s93(17) of the Transport Accident Act 1986 that the plaintiff had suffered a “serious injury” within the meaning of paragraphs (a) and/or (c) of the definition of “serious injury” contained in s93(17) of that Act.
2 The plaintiff sought a further order granting leave to commence proceedings at common law pursuant to s93(17) of the Transport Accident Act to recover damages in respect of injuries sustained by him in a transport accident which occurred on 4 July 1997.
3 On 13 July 2020, I made orders by consent granting leave to the plaintiff to file and serve an amended originating motion. The Amended Originating Motion dated 6 July 2020 sought an additional order that the period within which the plaintiff’s action may be brought be extended pursuant to s23A(2) of the Limitation of Actions Act 1958.
4 The proceeding is set down for hearing on 4 August 2020.
5 On 16 April 2020, the defendant’s solicitors issued six Form 42AA Subpoenas for Production to the Registrar. The date for production was 7 May 2020.
6 By correspondence dated 19 May 2020, the plaintiff’s solicitors wrote to the Court referring to the subpoenas issued and noting a return date of 7 May 2020. This correspondence stated that upon inspection of Court Connect, they noted that not all records had been received by the Court. In particular, the records of Mrphysio+, Healesville Medical and Health Services, the Department of Human Services, and Maurice Blackburn Lawyers (“Maurice Blackburn”). The correspondence stated:
“Accordingly, the Plaintiff wishes to lodge an objection to the release of these records to the Defendant until we have had the opportunity of inspecting these records. The basis for this objection is that these records may contain documents subject to privilege.”
7 The objection hearing was listed before me on 14 July 2020. I was informed by the plaintiff’s counsel that the objection was now confined solely to the material provided in response to the subpoena issued to Maurice Blackburn.
8 I informed both counsel that the objection taken was outside the time period prescribed pursuant to Order 42A.08 of the County Court Civil Procedure Rules. As the defendant consented to the plaintiff’s late notification of the objection, the objection hearing proceeded.
9 For the s93 and s23A applications, the plaintiff intends to rely upon his affidavit sworn on 24 June 2020.
10 The plaintiff was aged fourteen years at the time of the transport accident.
11 The plaintiff maintains privilege over the Maurice Blackburn file, save for correspondence dated 22 June 2006 from Maurice Blackburn to the plaintiff, and communication from the plaintiff to Maurice Blackburn concerning the circumstances of that firm’s ceasing to act for him in relation to the relevant time limit for the expiration of the limitation period. The plaintiff submits the waiver was not at large but is confined to the singular issue identified.
12 Counsel for the plaintiff submitted that if I rule in the plaintiff’s favour, then I should look at the material provided by Maurice Blackburn and extract from that file the relevant waiver material, and otherwise make an order sealing the remainder of the file.
13 The defendant’s submission is that the waiver is broader than that proposed by the plaintiff. Specifically, the plaintiff, in his affidavit, has put in issue his state of mind and his knowledge of common law entitlements. I was referred to relevant paragraphs of that affidavit, specifically paragraphs 25-30 inclusive.
14 Neither party submitted affidavits for the purpose of this hearing.
15 From the plaintiff’s affidavit in support of the application, the following matters are deposed to:
(i) On 4 July 1997, the plaintiff was with a friend, Clinton Day, riding pushbikes, when he was struck by a motor vehicle driven by Maria Penzes at a point where Glenice Avenue intersected with Eley Road, Blackburn South;
(ii) After having been struck by the motor vehicle, the plaintiff deposed he remembered lying on the roadway till everything went black;
(iii) The plaintiff deposed his next recollection was waking up in the Royal Children’s Hospital, and that he understood his GCS was 9;
(iv) The plaintiff deposed to having undergone several operative procedures;
(v) The plaintiff deposed to having suffered a head injury, and the investigation of that head injury;
(vi) The plaintiff deposed to suffering significant psychiatric injury over the years and having had a chequered work history, which he attributed to his transport accident-related injuries;
(vii) The plaintiff deposed to having an understanding there was a limitation period within which to bring proceedings which expired in 2006, six years after his 18th birthday.
16 At paragraphs 26-30 inclusive of the plaintiff’s affidavit, he deposed to his relationship with Maurice Blackburn. At paragraph 26, he states:
“Years ago, I retained Maurice Blackburn as solicitors to represent me and they did so by submitting an impairment benefit claim which was finalised in about June 2004.”
17 At paragraph 27 of his affidavit, the plaintiff deposed to Maurice Blackburn submitting a serious injury application on his behalf, but deposed to having no recollection of the application being submitted, and believed that this was “due to my acquired brain injury and consequent psychiatric injury”. However, he noted that the serious injury application had been rejected by the Transport Accident Commission by letter of 31 July 2003.
18 At paragraph 28 of his affidavit, the plaintiff deposed that he consulted his current solicitors, Melbourne Injury Lawyers, in February 2018, for the reasons for what he said was “I thought that Maurice Blackburn were not adequately representing my interests”. Importantly, he also said:
“… My solicitors began investigating my case obtaining the TAC file, the Victoria Police file and the Maurice Blackburn file which I understand was received in October 2018.”
19 The plaintiff, in his affidavit, deposes as to his understanding of what the Maurice Blackburn file contains. This includes reference to a telephone conversation with the plaintiff in or about June 2006 requesting cancellation of any further medical examinations, and a letter dated 22 June 2006 sent to him advising him of the need to initiate court proceedings by 3 August 2006. The plaintiff exhibits as BHK 1 a true copy of the Maurice Blackburn letter dated 22 June 2006.
20 At paragraph 30 of his affidavit, the plaintiff deposed:
“I have no recollection of receiving that letter or of giving any instructions not to proceed with further medical examinations in support of a serious injury application. My belief is that by reason of my acquired brain injury and psychiatric condition that I was not in a frame of mind which enabled me to understand what was being suggested or to make decisions in relation to my claim. As I have earlier indicated, I only sought further legal advice because of my belief that Maurice Blackburn had continued to act on my behalf but had done nothing to assist me in prosecuting a claim with respect to my injuries.”
21 I understand the plaintiff’s solicitors have not examined what has been provided to the Court by Maurice Blackburn. The plaintiff, in his affidavit, does refer to a file sent to his solicitors by Maurice Blackburn; however, when referencing any content of that file, he does so by deposing to what he understands the file contains.
22 There are several matters regarding the conduct of this objection hearing which indicate the difficulty I have had with the material before me. I refer to the following:
(i) After the subpoena was served on Maurice Blackburn, they wrote to the Court on 7 May 2020 advising:
“We advise that our office no longer holds any documents in relation to this matter. The file was destroyed 7 years after closure in accordance with our office policy.”
(ii) On 29 May 2020, Maurice Blackburn wrote again to the Court, stating their file had been destroyed, but stated that:
“However, by chance an assistant in a branch office with some knowledge of this matter and the subpoena was tidying up her PC’s desktop and came across some documents relative to this matter saved on her PC.”
23 Maurice Blackburn provided a copy of the documents they held, and stated:
“We confirm we do not act for the Plaintiff and the Client legal privilege is not waived.
Accordingly, we submit that the documents ought not be made available for inspection by any party unless ordered by the Court, or the privilege is waived by the holder of the privilege.
We have spoken with the representatives of the Plaintiff and the Defendant to advise that documents have now been located and are being forwarded to the Court.
We have also provided a copy of this correspondence to the parties.”
24 On 13 July 2020, an email was sent to the Judicial Registrar’s chambers inbox from Malcolm Cumming of Maurice Blackburn. In that email, Mr Cumming stated that Maurice Blackburn were not objecting to the release of the material subpoenaed, and said:
“… Our concern was to ensure the Plaintiff’s current solicitors had the opportunity to object prior to the release of the material given the privilege is the Plaintiff’s.”
25 The email stated they had been advised by the plaintiff’s solicitors that they would be objecting to the release of the material, and, as Maurice Blackburn were not objecting and had no submissions to be made, they asked to be excused from attending the objection hearing.
26 The plaintiff, in his affidavit, deposed, at paragraph 26, on when Maurice Blackburn were instructed to represent him, when he said:
“Years ago, I retained Maurice Blackburn as solicitors to represent me and they did so by submitting an impairment benefit claim which was finalised in about June 2004.”
27 I note that from the material exhibited to the plaintiff’s affidavit are medical reports obtained by Maurice Blackburn as early as 5 August 1998.
28 In a print-out from the Transport Accident Commission of payments made is a record of payments made to Maurice Blackburn in 1998 onwards for medico-legal reports.
29 It is clear Maurice Blackburn were instructed to act, although presumably on instructions from a litigation guardian, from at least 1998. The plaintiff, in his own right, was able to provide instructions upon turning eighteen years of age in 2000.
30 From the Transport Accident Commission’s payment summary I note payment of no fault benefits from 1998 to 2004. There appears to be no further payments made until 2013. In that year, payments were made to the Yarra Valley Community Medical Service and to MIA Victoria Pty Ltd.
31 The plaintiff, in his affidavit at paragraph 36, refers to the availability of his longstanding medical practitioner records from the Yarra Valley Community Medical Service. At paragraph 37, he deposed that whilst he was not apprised of all decisions made by the Transport Accident Commission relevant to his claim, his understanding was that on 20 March 2012, they had approved further neuropsychological assessments and an MRI scan in August 2013. The plaintiff was therefore, in 2012 and 2013, receiving medical treatment funded by the Transport Accident Commission.
32 Unfortunately, what is not evident is:
(a)What has been produced by Maurice Blackburn; is it a copy of their file or parts only? The plaintiff deposed that he understood his solicitors had a copy of his file which is inconsistent with the correspondence from Maurice Blackburn;
(b)When and by whom and on what occasions Maurice Blackburn were instructed to act is unclear.
33 In Walker-Shipley v State of Victoria,[1] Bongiorno J said, at paragraph [7]:
“Recently there have been a number of judgments of various courts concerning the question of the waiver of legal professional privilege, particularly on the question of imputed waiver and the extent to which the law will impose such imputation in various factual situations.”
[1][2003] VSC 178
34 At paragraph [8], his Honour noted there was some difference of approach to the criteria to be applied to determine whether waiver of privilege ought to be imputed. His Honour stated:
“… Having regard to the fact that the plaintiff’s state of mind with respect to her knowledge of the facts which give rise to her alleged cause of action is central to her application, it matters not whether the approach taken by the Full Federal Court in Telstra or the more limited approach favoured by Byrne J in Liquorland and Allsop J in DSE (Holdings) is correct. The application of either to the problem in this case will yield the same result.”
35 At paragraph [9], his Honour stated:
“In my view the principle to be applied in this case can be adequately expressed by reference to [28] and [29] of Mann v Carnell[2] where the majority (Gleeson CJ, Gaudron, Gummow and Callinan JJ) said:-
‘Waiver of privilege at common law
28At common law, a person who would otherwise be entitled to the benefit of legal professional privilege may waive the privilege. It has been observed that ‘waiver’ is a vague term, used in many senses, and that it often requires further definition according to the context. (Ross T Smyth & Co Ltd v T D Bailey Son & Co [1940] 3 All ER 60 at 70; Larratt v Bankers & Traders Insurance Co Ltd (1941) 41 SR (NSW) 215 at 226; The Commonwealth v Verwayen (1990) 170 CLR 394 at 406, 422, 467, 472.) Legal professional privilege exists to protect the confidentiality of communications between lawyer and client. It is the client who is entitled to the benefit of such confidentiality, and who may relinquish that entitlement. It is inconsistency between the conduct of the client and maintenance of the confidentiality which effects a waiver of the privilege. (Cross on Evidence, 5th Aust ed (1996), par 25005; Attorney-General (NT) v Maurice (1986) 161 CLR 475 at 497-498.) Examples include disclosure by a client of the client’s version of a communication with a lawyer, which entitles the lawyer to give his or her account of the communication (Benecke v National Australia Bank (1993) 35 NSWLR 110), or the institution of proceedings for professional negligence against a lawyer, in which the lawyer’s evidence as to advice given to the client will be received (Lillicrop v Nalder & Son (a firm) [1993] 1 WLR 94; [1993] 1 All ER 724).
29Waiver 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’ (eg. Goldberg v Ng (1995) 185 CLR 83 at 95). 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. Thus, in Benecke v National Australia Bank ((1993) 35 NSWLR 110), the client was held to have waived privilege by giving evidence, in legal proceedings, concerning her instructions to a barrister in related proceedings, even though she apparently believed she could prevent the barrister from giving the barrister’s version of those instructions. She did not subjectively intend to abandon the privilege. She may not even have turned her mind to the question. However, her intentional act was inconsistent with the maintenance of the confidentiality of the communication. What brings about the waiver is the inconsistency, which the courts, where necessary informed by considerations of fairness, perceive, between the conduct of the client and maintenance of the confidentiality, not some overriding principle of fairness operating at large.’ ”
[2][1999] HCA 66
36 Bongiorno J said, at paragraph [10]:
“There is a basic inconsistency between maintaining legal professional privilege in respect of communications between a lawyer and a client and the client’s obtaining much of the information which informs her state of mind from that lawyer when that state of mind is central to the litigation being pursued. A client in that position cannot, as a matter of fairness, selectively report such communications for the purpose of demonstrating ignorance of certain facts at a particular time whilst maintaining the confidentiality of the rest of her communication with her lawyer.”
37 This ruling in relation to the waiver is limited to the issue of the s23A application. In that regard, counsel for the defendant referred me to s23A(3)(e) and (f) of the Limitation of Actions Act 1958. Subsection (3) states:
“In exercising the powers conferred on it by subsection (2) a court shall have regard to all the circumstances of the case including (without derogating from the generality of the foregoing) the following—
...
(e)the extent to which the plaintiff acted promptly and reasonably once he knew that the act or omission of the defendant, to which the injury of the plaintiff was attributable, might be capable at that time of giving rise to an action for damages;
(f)the steps, if any, taken by the plaintiff to obtain medical, legal or other expert advice and the nature of any such advice he may have received.”
38 The plaintiff has expressly waived privilege over correspondence to him from Maurice Blackburn of 22 June 2006, and communication from him to Maurice Blackburn concerning the circumstances of their ceasing to act in relation to the expiration period. The letter of 22 June 2006 is exhibit BHK 9 of the plaintiff’s affidavit, and I refer to the following paragraphs:
“We refer to our letter to you dated 2 June 2006 and to our subsequent telephone conversation with you.
We confirm that in accordance with your instructions, we have cancelled the remaining medico-legal examinations we had arranged for you.
We confirm that your instructions are for our office not to take any further action with respect to this matter. … .”
39 There is no evidence before me as to the plaintiff’s state of mind at that time upon which I could make any decision relevant to his knowledge, and this is a matter more pertinent to the trial judge of the s23A application.
40 I am not prepared to make a finding that the plaintiff has waived privilege to the contents of the file at large. The file may very well contain advices to the plaintiff on the merit of a case on liability or damages. Those communications would be covered by privilege and there has been no expressed or implied waiver of that communication. The file may also contain medical and other records, many of which may already be in the defendant’s possession.
41 Central to the issues is the state of knowledge the plaintiff had of the limitation period. I consider that the plaintiff, in bringing this application, has impliedly waved privilege in respect of communication passing between him and his solicitors on the limitation period. He cannot selectively choose what communication is waived on this issue when it is central to his knowledge of that communication. Included must be any file notes of attendances on the plaintiff on this issue. However, if that for material also contains advices on damages and liability, those parts of the material should be redacted and not made available to the defendant.
42 The issue of promptness with which the plaintiff acted is also relevant to matters to be considered for the s23A application so communication from the plaintiff to his solicitors by way of instructions relevant to the limitation issue must also be produced.
43 I do not propose to examine the material. Rather I will make an order granting leave to the plaintiff’s solicitor for access to the material to inspect and copy it. The solicitor is then to remove or redact any material I have ordered not to be produced. The removed material is to be placed in an envelope and marked “Not to be opened other than by Order of the Court”. If the material was produced in electronic form, it is to be flagged as being “Confidential and is not to be opened unless ordered by the Court”.
44 I will make the appropriate orders and hear the parties on costs.
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