Leanne Best v Matthew Bardsley and Insurance Australia Limited
[2013] ACTSC 141
•26 July 2013
LEANNE BEST v MATTHEW BARDSLEY AND INSURANCE AUSTRALIA LIMITED
[2013] ACTSC 141 (26 July 2013)
STATUTORY INTERPRETATION – appeal from interlocutory decision of the Master – Client Legal Privilege – Road Transport (Third-Party Insurance) Act2008 (ACT), s 139 – procedures before compulsory conference – whether requirement to provide relevant documents extends to documents protected by client legal privilege – s 171 Legislation Act2001 (ACT) applies: Act must be interpreted to preserve the common law privilege in relation to client legal privilege – no express displacement of privilege or s 171 – no “manifest contrary intention” or clear contradiction of s 171 – maintenance of client legal privilege in s 139 not contrary to legislative intention of Act – appeal dismissed
Legislation Act2001 (ACT), ss 6, 126, 139, 171
Road Transport (Third-Party Insurance) Act2008 (ACT), ss 5A, 104, 105, 109, 114, 139, 141; Pts 4.3, 4.7
Road Transport (Third Party Insurance) Amendment Bill 2011, cl 12-14
Road Transport (Third Party Insurance) Bill 2007, cl 133
Baker v Campbell (1983) 153 CLR 52
Carmody v MacKellar (1997) 148 ALR 210
Hearne v Street (2008) 235 CLR 125
O’Donnell v Environment Protection Authority [2012] ACTSC 140
No. SC 748 of 2011
Judge: Burns J
Supreme Court of the ACT
Date: 26 July 2013
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
Second Defendant
ORDER
Judge: Burns J
Date: 26 July 2013
Place: Canberra
THE COURT ORDERS THAT:
The appeal is dismissed.
The second defendant is to pay the plaintiff’s costs of the appeal.
The plaintiff has commenced proceedings against the defendants claiming damages for personal injury she sustained by reason of the first defendant’s negligent use of a motor vehicle. The second defendant is the first defendant’s compulsory third party insurer.
As part of the preparation of the plaintiff’s case, she was examined by Dr Durda Bacvic, an occupational physician, who prepared a report dated 30 November 2011. A copy of that report, with redactions made by the plaintiff’s lawyers, was provided to the lawyers for the defendants on 7 December 2011. The redactions were made in reliance on s 109(4) of the Road Transport (Third-Party Insurance) Act2008 (ACT) (“the Act”).
Subsequently, a compulsory conference pursuant to s 136 of the Act was proposed. Despite s 136(1) providing that such a conference must be held before a claimant brings court proceedings based on a motor accident claim, the conference in this claim was called after the commencement of the plaintiff’s proceedings in this Court. No issue has been taken by either party about this failure to comply with s 136(1).
Prior to the holding of the compulsory conference the lawyers for the second defendant claimed entitlement to an unredacted copy of Dr Bacvic’s report, citing the provisions of s 139 of the Act. The plaintiff’s lawyers disputed the defendant’s right to an unredacted copy of the report, claiming that the document sought was subject to legal professional privilege, also referred to as client legal privilege.
By an application dated 6 August 2012, the lawyers for the second defendant sought an order pursuant to ss 109 and 139 of the Act that the plaintiff provide an unredacted copy of the report to it prior to the proposed compulsory conference.
On 31 August 2012, the Master dismissed the application, and ordered the second defendant to pay the plaintiff’s costs of the application.
The second defendant now appeals from those orders. The grounds of appeal are:
a) His Honour erred in construing the operation of s 139 of the Act; and
b) His Honour erred in holding that the plaintiff is not obliged to provide to the second defendant a complete copy of the report of Dr Bacvic.
THE MASTER’S DECISION
Before the Master the second defendant relied upon the provisions of ss 109 and 139 of the Act as the source of its entitlement to an unredacted copy of the report. The Master considered the objects of the Act, as set out in s 5A, including encouraging the speedy resolution of personal injury claims arising from motor vehicle accidents. His Honour correctly, with respect, identified the question to be answered as to whether in passing s 139 the legislature intended to deprive parties of the protection of legal professional privilege with respect to documents that are otherwise within the ambit of those that must be produced by reason of that provision. At this point it is convenient to set out ss 109 and 139, so far as is relevant to this appeal:
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)A regulation may prescribe exceptions to subsection (2).
(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) In this section:
"investigative reports" does not include a document prepared for an application for, an opinion on or a decision about indemnity against the motor accident claim from the Territory.
139 Procedures before compulsory conference
(1)At least 7 days before the compulsory conference is to be held, each party for the motor accident claim must give each other party for the motor accident claim the following:
(a)a copy of each document that is relevant to the motor accident claim that has not yet been given to the other party;
(b)a statement verifying that all relevant documents in the possession of the party or the party’s lawyer have been given as required;
(c) details of the party’s legal representation;
(d)if the party has legal representation – a certificate of readiness signed by the party’s lawyer.
(2)However, on application by a party, the court may exempt the party from an obligation to give material to another party before trial if satisfied that –
(a)giving the material would alert a person reasonably suspected of fraud to the suspicion; or
(b)there is some other good reason why the material should not be given.
The Master noted that, if read literally, the requirement of s 139(1)(a) for a party to a claim to give the other party a copy of “each document that is relevant to the motor accident claim” that has not previously been provided to the other party would require parties to provide copies of witness statements and counsel’s advice. Recognising this as a problem, the Master determined that the expression “each document that is relevant to the motor accident claim” must be “read down” so as not to abrogate client legal privilege.
In coming to that view, the Master was cognisant of the requirements of s 139(1) of the Legislation Act2001 that in working out the meaning of an Act, a court is to prefer the interpretation that would best achieve the purpose of the Act to any other interpretation. After referring to Dawson J’s statement in Baker v Campbell (1983) 153 CLR 52 at 132 that “...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”, the Master said at [20]:
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.
SECOND DEFENDANT’S ARGUMENTS ON APPEAL
On appeal, the second defendant abandoned any suggestion that s 109(4) of the Act was directly relevant to determining whether it was entitled to the relief it seeks. This concession was properly made. Section 109 only applies to an obligation to give a document to another party arising under Pt 4.3 of the Act, while s 139, with its obligation to provide documents prior to a compulsory conference, is found in Pt 4.7.
Nevertheless, the second defendant submitted that s 139 abrogated any claim for the client legal privilege and required the production of the unredacted copy of the report. The second defendant accepted that a clear legislative intention is required to conclude that a legislative provision is intended to abrogate a common law right, such as client legal privilege. The second defendant referred to Baker v Campbell, where Deane J said at 116–117:
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. As has been seen, the underlying principle that a person should be entitled to preserve the confidentiality of relevant communications between himself and his attorney is regarded of such importance by the common law that the courts themselves do not require disclosure of the content of such communications even if it appears that such disclosure would be conducive to justice in a particular case and even if the proceedings be between parties neither of whom is entitled to claim the protection of the privilege as regards the relevant documents or information. Both logic and authority support the present-day acceptance of the preservation of that confidentiality as a fundamental and general principle of the common law. It is to be presumed that if the Parliament intended to authorise the impairment or destruction of that confidentiality by administrative action it would frame the relevant statutory mandate in express unambiguous terms.
The second defendant submitted that the presumption against statutory interference with fundamental rights may be displaced by implication, citing Carmody v MacKellar (1997) 148 ALR 210. It submitted that, on a proper analysis of the Act, s 139 manifested a clear intention to abrogate a client legal privilege in a document “relevant to the motor vehicle claim”.
The second defendant referred to the explanatory statement of the relevant Minister on the introduction of the Road Transport (Third Party Insurance) Bill 2007 concerning clause 133 of the Bill (now s 139 of the Act):
Before the [compulsory] conference parties must exchange a copy of the relevant documents, details of legal representation and a certificate of readiness (if represented).
It also sought to rely upon the explanatory statement of the relevant Minister to the Road Transport (Third Party Insurance) Amendment Bill 2011, which made amendments to s 139 in relation to compulsory conference procedures (clause 12–14):
The procedures under the [RTA] were designed to ensure that the compulsory conference does not occur until all relevant information has been disclosed to both parties under part 4.3 of the Act. The intention this (sic) is to mandate full and open disclosure between the parties given this is a compulsory statutory insurance scheme. Accordingly, holding a compulsory conference prior to this would be premature. While the parties are free to and may settle a claim at any stage, a full and open disclosure is one of the key principles in the [RTA]. Further, as all the information will have been disclosed prior to the compulsory conference, the claim will be ready for litigation in accordance with the intentions of the Act, should it not be settled at the compulsory conference (i.e there should be few circumstances in which new information arises, such as the deterioration of an injury).
The second defendant sought to elucidate the meaning of s 139 by comparison with other provisions of the Act. Unlike s 109, it says, in s 139 there is no express provision permitting the redaction of documents, with s 139(2)(a) only permitting a party to apply for exemption from production. The second defendant submitted that
s 139(2) does not exempt a party from the obligation to give the other party a copy of a relevant document on the basis of client legal privilege, nor does it provide for the omission of any parts of the relevant documents.
Further, the second defendant noted that Pt 4.7, containing s 139, does not contain a provision in terms of s 114 which provides, with respect to documents and information given under Pt 4.3, that they are protected by the same privileges as if disclosed in a proceeding in this Court. It submitted that the omission of any provision the equivalent to s 114 from Pt 4.7 of the Act was a deliberate act of the legislature, consistent with the second defendant’s asserted interpretation of s 139.
In addition, the second defendant contended that whilst s 139 would not become inoperative or meaningless if the Master’s decision was upheld, it would not operate effectively or without frustrating the legislative intent. In addition, if s 139 were found not to abrogate client legal privilege, at least to the extent of privilege attaching to medical reports, the intended operation of s 141 of the Act, dealing with mandatory find offers, would be undermined.
Finally, and most basically, the second defendant contended that whilst s 139 contains no express provisions abrogating client legal privilege, it prescribes the giving of all relevant documents to the other party. By implication, it says, s 139 does abrogate client legal privilege.
THE PLAINTIFF’S SUBMISSIONS ON APPEAL
The plaintiff submitted that the particular document in question, the report of Dr Bacvic, is not a document to which s 139 applies, as it has already been provided to the second defendant, albeit in redacted form, in accordance with s 109. The plaintiff submitted that s 139 contemplated the existence of earlier (within the framework of the Act) disclosure provisions, and only required production of documents not disclosed under s 109.
In addition, the plaintiff contended that there was no provision in the Act giving the Court power to make the order sought by the second defendant. In response to this submission, the second defendant indicated that, if necessary, it would seek to amend its notice of appeal to seek a declaration that s 139 required an unredacted copy of the report to be provided.
CONSIDERATION
I am satisfied that the appeal should be dismissed, as s 139 does not abrogate client legal privilege with respect to documents that would otherwise fall within its operation.
I reject the plaintiff’s submission that s 139 does not apply to the document in question as a redacted copy has already been given to the second defendant pursuant to s 109. The document the second defendant now seeks is not the same document as that already provided, although both documents will have a great deal in common.
The issue for resolution is essentially one of statutory construction, and in particular the interpretation of s 139. However, there are important provisions of the Legislation Act2001 that were apparently overlooked by the parties, and to which the Master was apparently not taken. Section 171 of the Legislation Act provides:
171 Client legal privilege
(1) 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).
(2) However, this section does not affect the operation of the Evidence Act 2011.
NoteThe Evidence Act 2011, div 3.10.1 contains provisions about client legal privilege.
(3) This section is a determinative provision.
Note See s 5 for the meaning of determinative provisions, and s 6 for their displacement.
Section 6 of the Legislation Act provides:
6 Legislation Act provisions must be applied
(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.
Note For the distinction between a ‘manifest contrary intention’ (see s (2)) and ‘contrary intention’ (see (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.
(6) A provision of this Act must not be taken to be displaced by a provision of an Act or statutory instrument so far as the provisions can operate concurrently.
(7) In particular and without limiting subsection (5), a provision of this Act is not displaced by a provision of an Act or statutory instrument because the provisions deal with the same or a similar subject matter.
(8) This section is a determinative provision.
The Legislation Act provides examples following s 6 of the different kinds of displacement required by the section with respect to determinative provisions:
Examples – different kinds of displacement
1 Determinative provision – express displacement
The Collections Regulation Act 1999 (hypothetical), s 83 contains the following provision:
(2) The Legislation Act, section 47 (3) does not apply to a regulation under this Act.
Section 83 (2) illustrates a provision expressly displacing this Act, s 47 (3), a determinative provision.
2 Determinative provision – manifest contrary intention
The Motor Repairers Act 2001 (hypothetical) does not contain a provision like the Collections Regulation Act 1999, s 83, but s 79 contains the following provision:
(3) A regulation may apply, adopt or incorporate an instrument or provision of an instrument as in force from time to time. [emphasis added]
Section 79 (3) illustrates a provision displacing this Act, s 47 (3), a determinative provision, by a manifest contrary intention because s 79 (3) clearly contradicts s 47.
Section 47(3) of the Legislation Act states: The relevant instrument may make provision about the matter by applying a law of another jurisdiction, or an instrument, as in force only at a particular time. [emphasis added]
The terms of s 171(1) of the Legislation Act are mandatory, and the Court is required to interpret the relevant provisions of the Road Transport (Third-Party Insurance) Act2008 so as to preserve client legal privilege: see also s 146 of the Legislation Act. That is not to say that a statutory provision can never be interpreted as abrogating that privilege; clearly it can. Section 109(2) of the Act is an example of such a provision.
What, then, does one make of the inclusion of s 109 in Pt 4.3, and the omission of any like provision from Pt 4.7? The provisions of the Legislation Act to which I refer apply equally to the interpretation of those provisions requiring disclosure of documents in Pt 4.3 of the Act. In my opinion, the inclusion of s 109(1) in the Act, providing that a party is not required to give a document to another party under
Pt 4.3 if it is protected by client legal privilege, is not an indication that without that provision, ss 104 and 105 would require the production of documents protected by the privilege. Section 109 was drafted to make it clear that privilege remained, albeit that it is abrogated with respect to some documents. The section is drafted so as to restate the general proposition, and then to set out the exceptions to the general proposition. The reason that Pt 4.7 of the Act contains no provision the equivalent to s 109 is that the Act does not contemplate any exceptions to the general application of the privilege with respect to the obligation to give documents under that Part of the Act.
As s 171 of the Legislation Act is a determinative provision, its application to the interpretation of s 139 of the Act may only be displaced expressly or by a manifest contrary intention. This is to be contrasted with the application of a non-determinative provision, which may be displaced expressly or by a contrary intention.
It is quite clear that there is no express displacement of the application of s 171 of the Legislation Act to the interpretation of s 139 of the Act. An express displacement may take the form of a provision specifically providing that s 171 of the Legislation Act does not apply, or it may take other forms, such as that found in s 109(2) of the Act. The form of the provision is not crucial, so long as it expressly displaces the operation of s 171: see O’Donnell v Environment Protection Authority [2012] ACTSC 140 at [143].
As the application of s 171 of the Legislation Act to the interpretation of s 139 of the Act has not been expressly displaced, it may only be displaced by a manifest contrary intention. After referring to example 2 to s 6 of the Legislation Act (which is part of the Act by virtue of s 126(4) of that Act) Penfold J in O’Donnell v Environment Protection Authority said at [140]:
Although examples are not exhaustive, and may extend but do not limit the meaning of a relevant provision (s 132(1), Legislation Act), it is useful, in considering whether a determinative provision has been displaced by a manifest contrary intention, to ask whether the amending law “clearly contradicts” the determinative provision concerned.
A manifest contrary intention must differ, clearly enough, from a contrary intention. The difference is that the intention must be manifest. In my opinion, the word “manifest” when used in s 6 of the Legislation Act means to “put beyond doubt or question”: see Macquarie Dictionary 5th edition. This is consistent with the approach taken by Penfold J.
When approached in this way, there can be no suggestion that the application of s 171 of the Legislation Act to the interpretation of s 139 of the Act has been displaced by manifest contrary intention. Section 139 of the Act does not “clearly contradict”
s 171 of the Legislation Act.
It is accepted by the second defendant that client legal privilege is a substantive common law right, and that a clear legislative intention must be shown in order to displace the privilege. Section 171 of the Legislation Act makes it clear that in interpreting an ACT statute the privilege is only to be abrogated if the provisions being construed clearly contradict s 171 of the Legislation Act. In my opinion, the provisions of the Act, and in particular s 139, do not have this effect.
In coming to this conclusion I am conscious of the general legislative intention with respect to the 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.
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, counsels 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.
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, but the same may be said with respect to those documents or that information which the second defendant accepts should remain outside the obligation to produce found in s 139, as read down in accordance with the second defendant’s submissions.
The second defendant’s reference to s 114 of the Act in support of its submission is misconceived. 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) 235 CLR 125.
As s 139(1) is to be interpreted as retaining client legal privilege with respect to documents that would otherwise come within its ambit, it is unnecessary to consider the exception provision, s 139(2).
As there was no challenge to the proposition that the unredacted copy of Dr Bacvic’s report was subject to client legal privilege, the Master was correct to refuse the second defendant’s application. The appeal is dismissed.
I certify that the preceding forty (40) numbered paragraphs are a true copy of the Reasons for Judgment herein of his Honour, Justice Burns.
Associate:
Date: 26 July 2013
Counsel for the Plaintiff: Mr A R Muller
Solicitor for the Plaintiff: Maliganis Edwards Johnson
Counsel for the Second Defendant: Mr J Sexton SC
Solicitor for the Second Defendant: Moray & Agnew Lawyers
Date of Hearing: 5 April 2013
Date of Judgment: 26 July 2013
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