McKenna bhnf Upton v Australian Capital Territory
[2012] ACTSC 115
•July 27, 2012
JENNIFER MCKENNA BY HER NEXT FRIEND DAVID UPTON v AUSTRALIAN CAPITAL TERRITORY AND OTHERS
[2012] ACTSC 115 (27 July 2012)
PROCEDURE – discovery and interrogatories – whether witness statements form part of an investigator’s report – witness statements were obtained at the same time and prepared by the same person as the investigator’s report – witness statements are the basis for the investigator’s report – found that the witness statements are part of the investigator’s report
Civil Law (Wrongs) Act 2002 (ACT), Ch 5, ss 68, 72
Evidence Act 2011 (ACT), s 118
Motor Accident Insurance Act1994 (QLD), s 48
Personal Injuries Proceedings Act2002 (QLD), s 30
WorkCover Queensland Act1996 (QLD) (repealed), s 288
Mahoney v Salt [2012] QSC 43
State of Queensland v Allen [2011] QCA 311
James v Workcover Queensland [2001] 2 Qd R 626
Turpin v Allianz Australia Insurance Ltd [2002] 1 Qd R 692
Shorter Oxford English Dictionary (2002, 5th ed, Oxford)
No. SC 556 of 2009
Judge: Burns J
Supreme Court of the ACT
Date: 27 July 2012
IN THE SUPREME COURT OF THE )
) No. SC 556 of 2009
AUSTRALIAN CAPITAL TERRITORY )
BETWEEN:JENNIFER MCKENNA BY HER NEXT FRIEND DAVID UPTON
Plaintiff
AND:AUSTRALIAN CAPITAL TERRITORY
First Defendant
AND:COMMONWEALTH OF AUSTRALIA
Second Defendant
AND:CANBERRA CYCLING CLUB INCORPORATED
Third Defendant
AND:ACT CYCLING FEDERATION INCORPORATED
Fourth Defendant
AND:AUSTRALIAN CYCLING FEDERATION INCORPORATED T/AS CYCLING AUSTRALIA
Fifth Defendant
ORDER
Judge: Burns J
Date: 27 July 2012
Place: Canberra
THE COURT ORDERS THAT:
the third, fourth and fifth defendants give to the plaintiff copies of the report prepared by Michael Maher and Associates consisting of letters dated 18 March 2008, 12 May 2008, 18 June 2008, 17 April 2009 and 19 May 2009 addressed to Curwoods Lawyers, together with all annexures to those letters including witness statements and draft witness statements.
By an application dated 13 June 2012 the plaintiff seeks production from the third, fourth and fifth defendants (the defendants) of reports by Michael Maher Associates Pty Ltd dated 18 March 2008, 12 May 2008, 18 June 2008, 17 April 2009 and 19 May 2009, together with an order that the reports are not the subject of client legal privilege. These documents were produced to the Court pursuant to an order of the Chief Justice made on 6 July this year. The defendants are prepared to release part of the material sought by the plaintiff, but claim client legal privilege with respect to witness statements that form part of the material. The plaintiff submits that she is entitled to the entirety of the material by virtue of the provisions of s 68 of the Civil Law (Wrongs) Act2002 (ACT) (the Wrongs Act). The defendants say that this section does not apply to the witness statements that form part of the material called for.
As I understand it, Michael Maher Associates Pty Ltd (the investigators) is a firm of private investigators retained by the then lawyers for the defendants to investigate the plaintiff’s claim. The investigators were retained after the plaintiff gave formal notice of her claim in accordance with Ch 5 of the Wrongs Act to all defendants. On 12 July 2012 Craig Richard Wilson, a claims manager at Sportcover Australia, the insurer for the defendants, swore an affidavit deposing to the fact that the dominant purpose for obtaining the investigator’s reports was for the provision of legal advice to the insurer. Subject to the provisions of the Wrongs Act to which I now turn, the material sought by the plaintiff, including the witness statements, are the subject of client legal privilege: s 118 Evidence Act 2011 (ACT).
Section 68 of the Wrongs Act provides, relevantly for present purposes:
68 Respondent to give documents etc to claimant
(1) A respondent must give a claimant –
(a) copies of the following in the respondent’s possession that are directly relevant to a matter in issue in the claim:
(i) reports and other documents about the accident claimed to have given rise to the personal injury to which the claim relates;
(ii) reports about the claimant’s medical condition or prospects of rehabilitation;
(iii) reports about the claimant’s cognitive, functional or vocational capacity; and
(b) if asked by the claimant –
(i) information that is in the respondent’s possession about the circumstances of, or the reasons for, the accident.
Section 72 of the Wrongs Act is also relevant:
72 Nondisclosure of documents etc – client legal privilege
(1) A party is not obliged to disclose a document or information under this chapter 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 disclosed 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) is required to be disclosed, it may be disclosed with the omission of passages containing only statements of opinion.
(5) In this section:
“investigative reports” does not include a document prepared in relation to an application for, an opinion on or a decision about indemnity against the claim from the Territory.
The question which falls for resolution in this application is whether the witness statements are, or are part of, an investigative report or reports for the purposes of s 72 (2) of the Wrongs Act. I have not been provided with any letter or letters of instructions provided to the investigators by the defendants previous lawyers, and as such I have no direct evidence of whether the five reports produced to the Court are in reality part of the one report, or whether they are the result of multiple sets of instructions. In some cases this may well be important because, as we shall see, it may be relevant to a determination whether witness statements are part of, an investigative report for the purposes of the application of s 72 (2).
In support of their contention that the witness statements were not required to be produced, the defendants referred me to the decision of Boddice J of the Supreme Court of Queensland in Mahoney v Salt [2012] QSC 43 (Mahoney). In that case the plaintiff sought copies of witness statements and draft witness statements that were in the defendants’ possession. The plaintiff was relying on s 27 of the Personal Injuries Proceedings Act2002 (QLD) (the PIPA) which is in substantially the same form as s 68 of the Wrongs Act. Section 30 of the PIPA is of similar effect to s 72 of the Wrongs Act. The statements sought by the plaintiff in Mahoney were obtained by loss adjusters on the instructions of the defendants’ solicitors. In the letter of instructions to the loss adjusters, the solicitors requested that witness statements were to be forwarded to the solicitors separately from the investigation report, so as “to retain the benefit of legal professional privilege”. The loss adjusters were instructed not to attach the witness statements to a covering letter, and not to refer to them in the investigative report.
In rejecting the plaintiff’s application, Boddice J noted that while the witness statements were prepared during the loss adjustor’s investigation of the plaintiff’s claim, they were separate documents to the investigator’s report. The statements sought by the plaintiff were the subject of legal professional privilege, but the plaintiff submitted that they were properly to be characterised as “investigative reports”, and as such were liable to be produced despite their privileged nature. Boddice J rejected that proposition at [21]:
[21]Whilst the loss adjustors were undoubtedly undertaking an “investigation” of the incident, and a report from those loss adjustors would properly fall within the term “investigative report”, the particular statements do not have that quality. The statements are not in the nature of a systematic examination or enquiry. They contain the respondents’ account of events relevant to the occasion in (sic) which the applicant fell. The statements do not constitute “reports”, and certainly do not satisfy the ordinary meaning of “investigative reports”.
(footnotes omitted).
The factors that persuaded Boddice J that the witness statements were not investigative reports can be identified as:
a)they were physically separate documents, not attached to any other document;
b)the individual statements are not in the nature of a “systematic examination or enquiry”: see the definition of investigation in the Shorter Oxford English Dictionary (2002, 5th ed., Oxford);
c)the individual statements do not constitute reports; and
d)the individual statements do not satisfy the ordinary meaning of “investigative reports”.
I do not understand Boddice J to be doing otherwise than determining, as a question of fact, whether the witness statements before him were investigative reports. His Honour was not, in my view, purporting to lay down a principle of general application that witness statements could never be an investigative report, or a constituent part of such a report. In my opinion, any such general proposition is unsustainable. There is no reason in logic why a witness statement cannot, at the very least, constitute part of an investigative report. The purpose of commissioning an investigative report will usually be to determine what the facts are concerning a certain event, so as to allow the party commissioning the report to obtain legal advice. This fact finding exercise will frequently involve the taking of statements from witnesses to the event. The information obtained is obtained for the purpose of creating the report, and as such the statements come into existence for that purpose, whether the actual witness statement as a document is brought into existence before or after the report is prepared. In my opinion, this approach does not strain the ordinary meaning of the phrase “investigative report”.
Whether a witness statement is, or is part of, an investigative report is a question of fact to be determined on the evidence put before the court. In determining whether a witness statement is part of an investigative report, an approach which elevates substance over form is to be preferred. The circumstances referred to by Boddice J are relevant to this determination, but they are not the only relevant matters. The extent to which the statement, or the information found in the statement, has been used to formulate an investigative report will be an important, if not determinative, factor in determining whether the witness statement forms part of the report. To ignore the question of the use of the statement, or the information which is the basis of it, in the preparation of an investigative report is to encourage an artifice by giving undue weight to the form of the document or the way in which it is presented to the party retaining the investigator. Use of a witness statement in the preparation of an investigative report makes it part of the report just as surely as if it were stapled to the report.
There is support for this approach in a number of decisions of the Supreme Court and Court of Appeal of Queensland. In State of Queensland v Allen [2011] QCA 311 the Queensland Court of Appeal considered whether witness statements and solicitor’s file notes constituted investigative reports or medical reports for the purposes of s 30 of the PIPA. The primary judge rejected the appellant’s submission that the solicitor’s file notes and statements of evidence were not investigative reports. The documents sought related to injuries sustained by an infant plaintiff during the course of a medical procedure at the Prince Charles Hospital (PCH). The file notes recorded the hospital’s solicitor’s notes of a conference held with two doctors about the medical services provided to the plaintiff. The witness statements were statements provided by medical personnel about the services provided to the plaintiff. In holding that the documents were not investigative reports for the purposes of s 30 of the PIPA, Fraser JA said at [26]:
[26] “Investigation” is defined in the Shorter Oxford English Dictionary (5th edition, Oxford) to mean:
“1 The action or process of investigating; systematic examination; careful research. ...
2. An instance of this; a systematic inquiry; a careful study of a particular subject.”
I accept that the process in which PCH engaged upon the advice of its solicitor was a systematic enquiry of the doctors who might be able to provide information about the medical procedure and related matters. That overall process might be regarded as an “investigation” within the ordinary meaning of that word, but the question is whether a particular document is itself an “investigative report”. None of the documents in issue has that quality. None is a report of the result of the overall process recommended by the solicitor. Rather, each doctor separately prepared (or separately supplied information to a solicitor who prepared) a record of that doctor’s recollections of and, in some cases, opinions about, the procedure and related matters. No doctor was asked to conduct any investigation or research for the purpose of expressing an opinion or otherwise. The resulting record of information is no more “investigative” in character than any witness statement or solicitor’s file note of information within the witness’ own knowledge. In a particular case, such a record might be attached to a broader report of an investigation by, for example, a loss assessor, and thereby form part of that “investigative report”, but there was no such report here. Each document was simply retained by PCH in its files for subsequent use in the anticipated litigation.
(footnotes omitted)
(emphasis added)
Fryberg J came to the same conclusion as Fraser JA on this issue, emphasising the need to have regard to the content and form of documents in determining whether they are investigative reports, so that it will ordinarily be imperative for the Court to examine them before making a determination. With respect to the solicitor’s file notes, he said:
[90]I do not say that file notes could never be reports. It would however be unusual. Whether in a particular case a file note is a report depends on questions of fact including the history and circumstances in which the note was created, as well as its form.
In James v WorkCover Queensland [2001] 2 Qd R 626 (James), the Court of Appeal considered whether s 288 (2) of the WorkCover Queensland Act 1996 (QLD) (repealed), a provision of similar effect to s 72 of the Wrongs Act, required production of witness statements annexed to, and referred to in, a loss adjustors report. In holding that the witness statements were part of an investigative report prepared by the loss adjustors, Pincus JA, with whom Byrne J agreed on this issue, said at [11]:
In support of the applicant’s contention, one might say that it is odd if a distinction is to be drawn between a statement which is included in the body of the report and one which is attached to the body of the report and referred to in it.
A similar issue arose in Turpin v Allianz Australia Insurance Ltd [2002] 1 Qd R 692 concerning the application of s 48 (2) of the Motor Accident Insurance Act 1994 (QLD), a provision of similar effect to s 72 of the Wrongs Act. In that case the applicant sought provision of witness statements which had been attached to a loss assessor’s report. By reference to the decision in James Mullins J held that the statements formed part of the report, and had to be produced.
It is, of course, perfectly possible that a party may engage investigators to prepare an investigative report, and collaterally engage others to take witness statements. If those two functions are entirely separate the witness statements would not form part of the investigative report. Factors suggesting that witness statements are, in truth, part of a report will include:
·the statements being taken by the same person or persons who prepare the report;
·the statements being taken at the time of the investigation leading to the creation of a report;
·the statements being used in the preparation of a report; and
·the statements being attached to a report.
In the present case I am satisfied, having read the five separate documents produced by the defendants, that the five documents form part of the one report, the purpose of which was to determine the facts surrounding the incident in which the plaintiff was injured. As such I am satisfied they are an investigative report. The witness statements which the defendants object to disclosing to the plaintiff are physically attached by staples to the report. The statements were obtained at the same time as the report was prepared, and by the same person who prepared the report. The information in the statements is the basis of the investigator’s report and is referred to in the report.
I am satisfied that the witness statements are part of the investigator’s report, and as such liable to production to the plaintiff by virtue of s 72 (2) of the Wrongs Act despite them being the subject of client legal privilege.
I certify that the preceding seventeen (17) numbered paragraphs are a true copy of the Reasons for Judgment herein of his Honour, Justice Burns.
Associate:
Date: 27 July 2012
Counsel for the plaintiff: Mr R McIlwaine SC
Solicitor for the plaintiff: Cameron Legal
Counsel for the third, fourth and fifth defendants: Mr C J Callaway
Solicitor for the third, fourth and fifth defendants: Elringtons
Date of hearing: 13 July 2012
Date of judgment: 27 July 2012
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