Khalifa v CP Action Workforce Pty Ltd and Ors (Ruling)
[2016] VCC 1010
•19 July 2016
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
GENERAL LIST
Case No. CI-13-03990
| SAMY KHALIFA | Plaintiff |
| v | |
| CP ACTION WORKFORCE PTY LTD | First Defendant |
| LINFOX PTY LTD | Second Defendant |
| and | |
| WESTGATE LOGISTICS PTY LTD | Third Defendant |
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JUDGE: | HER HONOUR JUDGE KINGS | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 28 June 2016 | |
DATE OF RULING: | 19 July 2016 | |
CASE MAY BE CITED AS: | Khalifa v CP Action Workforce Pty Ltd & Ors (Ruling) | |
MEDIUM NEUTRAL CITATION: | [2016] VCC 1010 | |
RULING
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Subject: PRACTICE AND PROCEDURE
Catchwords: Application by second defendant for production of documents – objection by plaintiff on the basis of legal professional privilege – conflict of interest
Legislation Cited: Evidence Act 2008 (Vic), s117, 2119, s122
Cases Cited: Mitsubishi Electric Australia Pty Ltd v Victorian WorkCover Authority (2002) 4 VR 332; Esso Australia Resources Ltd v Commissioner of Taxation (Cth) (1999) 201 CLR 49; Grant v Downs (1976) 135 CLR 674; Perry v Powercor Australia Ltd [2011] VSC 308; Carter Holt Harvey Wood Products Australia Pty Ltd v Auspine Ltd [2008] VSCA 59; Matthews v SPI Electricity Pty Ltd & Ors (No 6) [2013] VSC 422; Matthews v SPI Electricity Pty Ltd & Ors (No 10) [2014] VSC 44; New Cap Reinsurance Corp Ltd (in liq) v Renaissance Reinsurance Ltd [2007] NSWSC 258; Sendy v Commonwealth of Australia [2002] NSWSC 1109; Mann v Carnell (1999) 201 CLR 1
Ruling: Leave granted to the plaintiff to file an affidavit with the Court by 2 August 2016 setting out medical expert’s opinion as to the dominant purpose for which subpoenaed material prepared.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr E Makowski | Arnold Thomas & Becker Lawyers |
| For the First Defendant | Ms K Burgess | HWL Ebsworth Lawyers |
HER HONOUR:
1 My ruling is sought in this instance in regard to a Subpoena dated 13 May 2016, which was filed and served by the second defendant on Mr Michael Shannon, orthopaedic surgeon, to produce the documents as follows:
(i) documents relating to the examination of the plaintiff that took place on or around 30 September 2013;
(ii) the medico-legal report provided to the plaintiff dated on or around 2 October 2013; and
(iii) all attendance records and history cards, clinical notes and, to summarise, all medical records relating to the plaintiff.
2 In the proceeding against the defendants, the plaintiff seeks damages at common law with respect to an injury allegedly suffered to his left lower limb whilst under the supervision, direction and control of the second and/or third defendant. The plaintiff’s claim is further outlined in its Writ and Statement of Claim dated 2 August 2013 and Amended Writ dated 23 June 2014.
3 Briefly, this application arose as follows.
4 On or about 30 September 2013, the plaintiff’s solicitors engaged Mr Shannon to examine the plaintiff for medico-legal purposes and provide a subsequent report, which was dated 2 October 2013. The plaintiff’s solicitors elected not to exchange Mr Shannon’s report. On 7 March 2016, the second defendant sent a letter to advise the plaintiff’s solicitors of the plaintiff’s appointment with Mr Shannon and requested that they be contacted if the plaintiff was unable to attend. No response was received. On 26 April 2016, the plaintiff attended Mr Shannon but was sent away without examination. Later that day, Mr Shannon advised the second defendant that he had a conflict of interest as he had previously examined the plaintiff in 2013 at the request of the plaintiff’s solicitors. The second defendant sought the production of Mr Shannon’s report produced for the plaintiff. The second defendant filed and served a subsequent subpoena on Mr Shannon to which the plaintiff objects on the basis of legal professional privilege.
5 As an aside, in my opinion, the proper course would have been for the second defendant to file and serve a further and better discovery of the plaintiff. Nonetheless, I will consider the application before me.
6 I have read the subpoenaed material in issue.
7 The grounds upon which the plaintiff objects to the inspection or release of this subpoena is client legal privilege under s119 of the Evidence Act 2008 (Vic) (“the Act”), that is, litigation privilege.
8 The following relevant provisions of the Act frame my assessment:
Section 117
“confidential document means a document prepared in such circumstances that, when it was prepared—
(a) the person who prepared it; or
(b) the person for whom it was prepared—
was under an express or implied obligation not to disclose its contents, whether or not the obligation arises under law.”
Section 119
“Evidence is not to be adduced if, on objection by a client, the court finds that adducing the evidence would result in disclosure of—
…
(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.”
Section 122
“(2)… this Division does not prevent the adducing of evidence if the client or party concerned has acted in a way that is inconsistent with the client or party objecting to the adducing of the evidence because it would result in a disclosure of a kind referred to in section … .”[1]
[1]Mitsubishi Electric Australia Pty Ltd v Victorian WorkCover Authority (2002) 4 VR 332
9 It is well established that the party claiming the litigation privilege, in this case the plaintiff, bears the onus of establishing the basis of the claim and the party seeking production does not bear the onus of excluding privilege.[2]
[2]Mitsubishi Electric Australia Pty Ltd v Victorian WorkCover Authority (supra)
10 Without being aware of the exact nature of the subpoenaed documents, counsel for the second defendant submitted to the Court that there may be two broad types of documents:
(i) the medico-legal report furnished to the plaintiff’s solicitors on or around 2 October 2013; and
(ii) documents relating to the examination of the plaintiff on or around 30 September 2013 and any attendance records, clinical notes or medical notes that did not form part of the medico-legal report.
11 Counsel for the second defendant invited the Court to consider the distinction between the first and second type of documents. Counsel for the second defendant agreed with counsel for the plaintiff that the first type was clearly subject to litigation privilege and not obtainable under the subpoena. However, counsel submitted that the second type of documents that did not form part of the medico-legal report were outside litigation privilege and therefore obtainable under the subpoena. Consequently, my analysis focuses upon the latter.
12 It follows that my analysis must involve the process as follows:
· First, identifying whether the documents are confidential documents;
· Second, whether those confidential documents were prepared for the dominant purpose of the client being provided with professional legal services relating to this proceeding; and
· Third, if there is litigation privilege over certain documents, whether the plaintiff has waived such privilege.
Confidential document
13 It is clear that the plaintiff’s records created by Mr Shannon constitute confidential documents as he prepared them at the request of the plaintiff’s solicitors under an obligation not to disclose its contents to anyone else.
14 Indeed, this was not an issue raised between the parties.
Dominant purpose
15 Whether Mr Shannon’s documents regarding the plaintiff, at the time they were prepared, were brought into existence for the dominant purpose of the client being provided with professional legal services relating to this proceeding is a question of fact.[3]
[3]Esso Australia Resources Ltd v Commissioner of Taxation (Cth) (1999) 201 CLR 49
16 The purpose must be determined objectively with regard to all the circumstances in which it was made and its nature.[4] However, as Justice Callinan recognised in Grant v Downs,[5] the “subjective purpose will always be relevant and often decisive”.[6]
[4]Grant v Downs (1976) 135 CLR 674 at 689 per Stephen, Mason and Murphy JJ
[5]Supra
[6]Esso Australia Resources Ltd v Commissioner of Taxation (Cth) (supra) at paragraph [172] per Callinan J
17 The Court of Appeal and other courts have interpreted the word “dominant” as meaning that there must be a “clear paramountcy” of purpose.[7]
[7]Perry v Powercor Australia Ltd [2011] VSC 308 at paragraph [55] per Robson J; Mitsubishi Electric Pty Ltd v Victorian WorkCover Authority (supra) per Batt JA, with Charles and Callaway JJA agreeing; Carter Holt Harvey Wood Products Australia Pty Ltd v Auspine Ltd [2008] VSCA 59
18 In Carter Holt Harvey Wood Products Australia Pty Ltd v Auspine Ltd,[8] the Court of Appeal confirmed that a two-step approach must be adopted in determining the dominant purpose:
[8](supra) at paragraph [3]
(i) First, ascertaining the subjective purpose or purposes of the person or persons making or commissioning the communication in question;
(ii) Second, if the Court concludes there was more than one purpose, it must determine whether the party claiming the privilege has established that the privileged purpose was the dominant purpose.[9]
[9]Cited with authority by Matthews v SPI Electricity Pty Ltd & Ors (No 6) [2013] VSC 422 at paragraph [57]
19 First, as to the subjective purpose, counsel for the plaintiff contended that any notes or records of Mr Shannon were made for the dominant purpose of legal professional services as they formed part of the final medico-legal report furnished by Mr Shannon to the plaintiff’s solicitors.
20 Counsel for the second defendant asserted that Mr Shannon’s notes were not subject to litigation privilege as the dominant purpose was for Mr Shannon’s own use in creating the final report. Counsel handed up a number of authorities in support of their position, one of which was New Cap Reinsurance Corp Ltd (in liq) v Renaissance Reinsurance Ltd.[10] This case involved an application by the defendant that the plaintiffs make available for inspection certain documents over which the plaintiff claimed privilege pursuant to s119 of the Act.
[10][2007] NSWSC 258
21 Justice White made authoritative statements as to the dominant purpose test under the Act and a distinction between different types of documents. He said:
“… If they were prepared for the dominant purpose of a draft report being submitted for advice or comment by the plaintiffs’ lawyers, then they would be privileged under s 119. However, if they were brought into existence for the dominant purpose of the expert forming his or her opinions to be expressed in the final report, then it could be arguable that they were not made for the dominant purpose of the plaintiffs being provided with professional legal services relating to the proceeding.”[11]
[11](supra) at paragraph [30]
22 Relevantly, he said:
“… Whether the same documents in the hands of the expert were produced for the same dominant purpose will be a different question, the resolution of which may depend upon the expert’s oath. … .”[12]
[12](supra) at paragraph [37]
23 Justice White held that the draft reports were privileged because they were copies of the draft report sent to the plaintiff’s lawyer for the purposes of comment.
24 Having reviewed the subpoenaed material, I reject counsel for the second defendant’s assertion that the second type of Mr Shannon’s documents should be considered “draft reports”. As the facts before me are different, this reasoning does not assist the second defendant’s case.
25 The Victorian Supreme Court considered New Cap in the decision of Matthews v SPI Electricity Pty Ltd (No 10),[13] which was raised by the parties. The Court determined a dispute as to claims for privilege in respect of documents subpoenaed by SPI from an expert engineer retained by the plaintiff.
[13][2014] VSC 44
26 Associate Justice Derham held that the documents were subject to litigation privilege as they contained notes of meetings held with the plaintiff’s solicitors in which the expert’s report was discussed. The expert also gave evidence that the notebook contained draft reports for the dominant purpose of submission to the plaintiff’s lawyers.
27 Again, the facts before me are distinctly different, as it appears, apart from the report, Mr Shannon did not provide his notes or records of examination of the plaintiff to the plaintiff’s solicitors for comment.
28 However, relevantly, Derham AsJ said, in obiter:
“… But, as White J observed in New Cap, if they were brought into existence for the dominant purpose of the expert forming his opinions to be expressed in the final report, then it could be arguable that they were not made for the dominant purpose of the plaintiffs being provided with professional legal services relating to the proceedings. The question is one of proof of the dominant purpose.”[14]
[14]Matthews v SPI Electricity Pty Ltd & Ors (No 10) [2013] VSC 422 at paragraph [53]
29 Counsel for the second defendant also provided me with a copy of Sendy v Commonwealth of Australia.[15] The New South Wales Supreme Court found that the notes of the psychiatrist, who saw the plaintiff on behalf of the defendant, were not privileged as they were recorded at the time to assist his memory and “an opinion he formed in his own mind”.[16] Justice Dunford found that the plaintiff could call the psychiatrist as a witness.
[15][2002] NSWSC 1109
[16]See paragraph [14]
30 However, whilst persuasive, the facts of Sendy are distinguishable on the facts before me, as the second defendant seeks to subpoena Mr Shannon’s notes and not call him as a witness to the proceeding.
31 Adopting the reasoning of Sendy and Matthews in obiter, if Mr Shannon brought the notes into existence for the dominant purpose of forming his opinion upon examination or refreshing his mind in order to draft his medico-legal report, the notes are not subject to litigation privilege under the Act.
32 Conversely, if Mr Shannon brought the notes into existence for the dominant purpose of it forming a draft report or being furnished to the plaintiff’s solicitors for comment, the notes are subject to litigation privilege.
33 Objectively, it would seem that most medico-legal witnesses, such as Mr Shannon, would have created these notes for the dominant purpose of recording his examination of the plaintiff and not intending them to be viewed by the plaintiff’s solicitors. In my view, Mr Shannon created these notes as an aide memoir in order to create his final medico-legal report. As such, the dominant purpose was not for providing professional legal services and therefore privilege does not subsist in the notes.
34 The issue that presents itself is that I do not have evidence on oath from Mr Shannon or the plaintiff’s solicitors as to the dominant purpose, as viewed by Mr Shannon, for the creation of his records or notes subject of the subpoena. I am of the view that it is therefore not appropriate to make a ruling without such relevant evidence.
35 Accordingly, I require Mr Shannon or the plaintiff’s solicitors to file an affidavit setting out the dominant purpose of the documents subject of the subpoena.
Waiver
36 In the alternative, the second defendant contended that if I found the documents subject to litigation privilege, that the plaintiff waived it.
37 A waiver may be expressed or implied. Applying s122(2) of the Act, I must make an on objective assessment as to whether the plaintiff’s conduct is inconsistent with the maintenance of the privilege over Mr Shannon’s records.[17] This is a question of fact.
[17]Mann v Carnell (1999) 201 CLR 1 at 13, Matthews v SPI Electricity Pty Ltd [2014] VSC 44 paragraph [48]
38 As set out in the leading High Court authority of Mann v Carnell,[18] on this issue, the starting point must be an analysis of the disclosures or acts of the plaintiff claiming privilege.
[18]Supra
39 The second defendant informed the Court that the plaintiff waived privilege on the basis of the plaintiff’s following disclosures or acts:
· First, the plaintiff’s failure to raise an objection or assert privilege upon receipt of the letter from the defendant advising the plaintiff’s solicitors of an appointment with Mr Shannon dated 7 March 2016;
· Second, the plaintiff attended Mr Shannon for examination on 26 April 2016 knowing there would be a conflict of interest for Mr Shannon;
· Third, the plaintiff, upon being sent away from Mr Shannon’s rooms, failing to assert an immediate claim of privilege to the defendant;
· Fourth, the failure of the plaintiff to assert litigation privilege after the second defendant’s solicitors sent a letter to the plaintiff’s solicitors in April 2016; and
· Fifth, the plaintiff did not assert litigation privilege from 7 March 2016 until a telephone conversation with the second defendant’s solicitors on 12 May 2016 and in a letter dated 13 May 2016.
40 I reject that any of the plaintiff’s conduct as outlined by the second defendant amounts to the plaintiff acting in a way inconsistent with the maintenance of legal professional privilege. There are no facts to support the assertion that the plaintiff waived privilege in regard to Mr Shannon’s records. To the contrary, on 12 May 2016, the plaintiff’s solicitor’s first communication with the second defendant’s solicitors regarding the subpoena was to assert litigation privilege over Mr Shannon’s records, which was confirmed in a letter dated 13 May 2016.
41 As such, I do not believe a waiver has occurred if, indeed, privilege subsists in Mr Shannon’s notes.
Conclusion
42 For the reasons set out above, I will grant leave to the plaintiff to file an affidavit with the Court by 2 August 2016 that sets out Mr Shannon’s opinion as to the dominant purpose for which he prepared the subpoenaed material.
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