Leanne Best v Matthew Bardsley - [2012] ACTSC 144

LEANNE BEST v MATTHEW BARDSLEY & ANOR
[2012] ACTSC 144 (31 August 2012)

STATUTORY INTERPRETATION – Road Transport (Third-Party Insurance) Act 2008, s 139 (Procedures before compulsory conference) – requirement that each party give each other party a copy of each document that is relevant to the motor accident claim – whether requirement extends to documents protected by client legal privilege – no express abrogation of privilege – requirement does not extend to privileged documents.
PRACTICE AND PROCEDURE – privilege – client legal privilege – Road Transport (Third-Party Insurance) Act 2008, s 139 – requirement that each party give specified documents to each other party before compulsory conference – whether requirement extends to documents protected by client legal privilege – privilege not abrogated.

Road Transport (Third-Party) Insurance Act 2008, Pts 4.2, 4.3, 4.7, ss 5A, 7, 101, 104,102, 109, 139
Civil Law (Wrongs) Act 2002, Ch 5, ss 50(1), 72
Court Procedures Rules 2006
Legislation Act 2001, Ss 138, 139

Baker v Campbell (1983) 153 CLR 52

No. SC 748 of 2011

Judge: Master Harper
Supreme Court of the ACT

Date: 31 August 2012

IN THE SUPREME COURT OF THE       )
  )          No. SC 748 of 2011
AUSTRALIAN CAPITAL TERRITORY    )

BETWEEN:LEANNE BEST
Plaintiff

AND:MATTHEW BARDSLEY
First Defendant

AND:INSURANCE AUSTRALIA LIMITED
ACN 000 016 722

Second Defendant

ORDER

Judge:  Master Harper
Date:  31 August 2012
Place:  Canberra

THE COURT ORDERS THAT:

the application in proceeding dated 7 August 2012 be dismissed.
the plaintiff’s costs of the application in proceeding be paid by the second defendant.

This is an application in proceeding in an action for damages for personal injury arising out of a motor vehicle collision which occurred on 2 January 2009.
The plaintiff has sued the first defendant as driver of the vehicle at fault, and the second defendant as third-party insurer of that vehicle. The first defendant has not appeared, nor is there evidence of service upon him. The present application is made by the second defendant and seeks an order in the following terms:
That the plaintiff provide an unredacted copy of the medico-legal report obtained from Dr Durda Bacvic, occupational physician, dated 30 November 2011 within seven days.
The order is said to be sought pursuant to ss 109 and 139 of the Road Transport (Third-Party) Insurance Act 2008 (The Act). The parties to the application accept that the Act applies to the proceeding, the collision having occurred in the Territory after the Act came into force.
The Act has a number of objects, set out in s 5A. These include encouraging the speedy resolution of personal injury claims arising from motor accidents. “Personal injury” is defined in s 6, and in “motor accident” in s 7: the plaintiff’s claim is clearly a personal injury claim resulting from a motor accident, within the meaning of those terms as defined.
The dispute between the parties concerns the interplay between the obligation of a claimant to provide the respondent with documents under Pt 4.3 of the Act, and the obligations of the parties immediately before the holding of a compulsory conference under Pt 4.7. Both parts are contained within Ch 4 of the Act, which deals with motor accident claims. The plaintiff’s claim in the present action is such a claim. The plaintiff is a claimant as defined in the part, and the second defendant is a respondent as defined.
Part 4.2 requires a claimant to give a respondent written notice of a claim within a specified timeframe.
Part 4.3 has the purpose, expressed in s 101, of putting the parties to a claim in a position where they have enough information to assess liability and quantum. S 104 requires a claimant to give to a respondent, within a month of giving notice of claim, a copy of each required document in the claimant’s possession. “Required document” is defined in s 102 to include a report about the claimant’s medical condition or prospects of rehabilitation, and also a report about the claimant’s cognitive, functional or vocational capacity.
The plaintiff’s solicitors arranged an appointment for Dr Bacvic, a specialist in occupational medicine, to conduct an examination of the plaintiff and to provide a report. Dr Bacvic practises in Perth. The plaintiff has moved since the collision to Western Australia. Dr Bacvic saw the plaintiff on 21 November 2011 and provided a report to the plaintiff’s solicitors on 30 November 2011. The plaintiff’s solicitors made a photocopy of the report, upon which they blacked out with a felt pen some passages. They sent the copy report, thus amended, to the solicitors for the second defendant.
In amending the report, they relied on s 109 of the Act, which is in the following terms:
109 Exception to obligation—client legal privilege
(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.
(3)[Not relevant].
(4)If a report mentioned in subsection (2) must be given, the report may be given with the omission of passages containing only statements of opinion.
(5)[Not relevant].
Dr Bacvic’s report is a medical report, and probably also a report relevant to the claimant’s rehabilitation. It has been brought into existence for the purposes of the present litigation and is hence protected by client legal privilege under the general law. I have not seen the report in its original state but I accept for the purposes of the application that the passages blacked out are passages containing only statements of opinion.
Part 4.7 of the Act is headed “Compulsory Conferences before Court Proceedings”. S 136 provides that before a claimant brings a court proceeding, the parties must have a conference, called the compulsory conference. In the present case it seems that the plaintiff commenced proceedings without first calling for a compulsory conference, but the second defendant takes no point about that on this present application, for the purpose of which the parties accept that a compulsory conference must now take place and that the requirements of Pt 4.7 must be complied with.
The solicitors for the second defendant proposed a compulsory conference with suggested dates during May 2012. The plaintiff’s solicitors after some delay accepted the suggestion, proposing that the conference take place on 14 August 2012. The solicitors for the second defendant accepted this but argued that they were entitled to a complete copy of Dr Bacvic’s report, threatening the present application in proceeding if they did not receive one. The plaintiff’s solicitors argue that because of s 109 they are not required to provide the entire report.
Section 139 sets out a number of requirements upon both parties before the compulsory conference takes place. These include an obligation to give each other party a copy of each document that is relevant to the motor accident claim that has not yet been given to the other party. The section gives the court a discretion, on application by a party, to exempt that party from an obligation to give material to another party, if satisfied (for present purposes) that there is “some other good reason why the material should not be given”. The plaintiff does not put forward any “other good reason” not to have to provide the full report, other than the provisions of s 109(4).
Similar provisions are contained in Ch 5 of the Civil Law (Wrongs)Act 2002, which is headed “Personal injuries claims – pre-court procedures”. S 50(1) of the latter Act specifically provides that the chapter applies to all claims for damages for personal injury, including claims to which Ch 4 of the Road Transport (Third-Party) Insurance) Act 2008 applies.
Section 72 of the Civil Law (Wrongs) Act is in identical terms to s 109 of the Road Transport (Third-Party Insurance) Act. It is unclear why the legislature thought it necessary to reproduce the section in the 2008 Act when the 2002 Act specifically continued to apply to motor accident claims. S 72 of the Civil Law (Wrongs) Act does not appear to have fallen for consideration by a court, perhaps because that Act does not go on to provide for anything in the nature of a compulsory conference as is required by the 2008 Act in aspect of motor accident claims.
I must start from the position that the legislature, in 2002 and again in 2008, saw it as appropriate to remove the protection of client legal privilege from medical and certain other reports, but to leave the protection in place in relation to passages from such reports containing only statements of opinion.
The question is whether, in drafting the wording of s 139, the legislature intended to deprive parties of the protection of legal professional privilege in relation to documents required by the section to be given to other parties. Pt 4.3 (Obligations to give documents and information) is reasonably specific about what documents must be handed over, and what is seen as relevant claim information to be given. S 139 by contrast contains no definition of what is intended to be encompassed by the words “each document that is relevant to the motor accident claim that has not yet been given to the other party”. In this case, a copy of Dr Bacvic’s report has been given to the second defendant, but with deletions permitted by s 109. The legislature must be taken to have been aware that by reason of s 109(4) it would frequently be the case that one party would give to the other a medical report with statements of opinion deleted. It is something of a stretch of ordinary language to categorise Dr Bacvic’s report as a document “that has not yet been given to the other party” when the other party has since late last year had a copy of the eight-page report with only brief deletions on three of those pages. One sees from time to time a document with deletions such that what is left is barely intelligible. The amended copy of Dr Bacvic’s report is far from that extreme. It sets out the detailed history which the doctor obtained, an extensive record of findings on examination, and a diagnosis.
There is nothing to suggest that the wording “each document which is relevant to the motor accident claim” in s 139 bears any relationship to the definition of “required document” or “relevant claim information” in Pt 4.3 of the Act. It can be expected that a party to a motor accident claim will have documents in many categories which might be regarded as relevant to the claim. It may be that an appropriate analogy would be with the documents in a party’s possession or control which would be required to be disclosed on discovery under the Court Procedures Rules 2006, but that is unnecessary to decide for present purposes. It is enough to say that a party is likely to have statements of witnesses, often including the party himself or herself, relating to both liability and quantum; correspondence between the party and his or her solicitor; and, not infrequently, advices from counsel on liability, on evidence and on quantum of damages. None of these are covered by the client legal privilege exemption conferred by s 109 upon documents otherwise required to be disclosed under Pt 4.3.
I hasten to add that counsel for the defendant has not suggested that the plaintiff is required by s 139 to disclose, for example, witness statements or advices from counsel. Nevertheless the point needs only to be made for it to be obvious that the legislature could not have intended in s 139 to oblige a party to disclose such documents to the other party. Hence the expression “each document that is relevant to the motor accident claim” must be read down, in my opinion, so that it does not abrogate client legal privilege, and does not require a party to disclose privileged documents to the other parties.
If this is so as to witness statements and advices of counsel, one asks why the position should be seen as any different in relation to a medical report commissioned by a party’s solicitors for the purposes of the litigation.
I am conscious of the requirement imposed by s 139(1) of the Legislation Act 2001 that in working out the meaning of an Act, the court is to prefer the interpretation which would best achieve the purpose of the Act to any other interpretation. “Working out the meaning of an Act” includes, under s 138 of the Legislation Act, “finding the meaning of the Act when its apparent meaning leads to a result that is manifestly absurd or is unreasonable”. I am not persuaded that there is anything manifestly absurd or unreasonable about reading s 139 so that the requirement to disclose documents remains subject to the protection of client legal privilege. As Deane J said in Baker v Campbell (1983) 153 CLR 52 at page 116:
It is a settled rule of construction that general provisions of a statute should only be read as abrogating common law principles or rights to the extent made necessary by express words and necessary intendment.
In the same case at page 132, Dawson J said:
In my view, the doctrine of legal professional privilege is, in the absence of some legislative provision restricting its application, applicable to all forms of compulsory disclosure of evidence.
I recognise that s 139 does not, like s 109(1) specifically preserve client legal privilege in relation to documents otherwise required to be produced under the Act. Nor, however, does it expressly abrogate legal professional privilege in relation to documents required to be given to other parties.
If s 139 were to be read literally, it would oblige a party to disclose documents which would include solicitor-client communications and communications from barristers which it cannot have been the intention of the legislature to require. I am accordingly satisfied that s 139 is not to be read as requiring the giving by each party to each other party of documents which are protected by legal professional privilege. If it had been the intention of the legislature to abrogate such privilege in respect of certain categories of documents, one would have expected this to have been spelt out expressly.
It is accordingly unnecessary for me to decide whether the order sought in the application was one which could or should have been made. The Act does not confer a specific power on a court to make such an order. At common law a court will not generally order a party to perform an act: this is traditionally an equitable remedy. It is unclear what consequences might flow from failure to comply with such an order. A preferable course would be to seek a declaration as to the effect of the legislative provision in question, perhaps accompanied by a stay of proceedings until the party in default complied with its requirements.
The application will be refused with costs.
I certify that the preceding twenty-three (23) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Master.
Associate:
Date: 31 August 2012

Counsel for the plaintiff:  Mr AR Muller
Solicitors for the plaintiff:  Maliganis Edwards Johnson
Counsel for the second defendant:  Mr MA McDonogh
Solicitors for the second defendant:                  Moray & Agnew
Date of hearing:  24 August 2012
Date of judgment:  31 August 2012