Nicholas Morris Cleary v Domenico Rinaudo
[2012] ACTCA 61
•21 December 2012
HUMAN RIGHTS ACT
NICHOLAS MORRIS CLEARY v DOMENICO RINAUDO
[2012] ACTCA 61 (21 December 2012)
APPEAL – application for leave to appeal – appeal from interlocutory order – interpretation of Civil Law (Wrongs) Act 2002 (ACT) ch 5 – whether ch 5 continues to apply after originating process filed – extent of statutory abrogation of common law privilege – where only quantum at issue in Supreme Court proceedings – where clarity in the Court of Appeal resolving the issue would be of substantial benefit to litigants – where prejudice to the respondent able to be ameliorated by costs order – leave granted.
Civil Law (Wrongs) Act 2002 (ACT), s 68, ch 5, pt 5.3
Evidence Act 2011 (ACT)
Legislation Act 2001 (ACT), s 126(1)
Angus v Conelius [2007] QCA 190
Arrow International Australia Ltd v Group Konstrukt Pty Ltd (2012) 7 ACTLR 48
Capital Property Projects (ACT) Pty Ltd v Planning and Land Authority (ACT) (2008) 2 ACTLR 44
Carter v Northmore Hale Davy v Leake (1995) 183 CLR 121
Cleary v Rinaudo [2012] ACTSC 179
Commission (2002) 213 CLR 543Corporate Affairs Commission (NSW) v Yuill (1991) 172 CLR 319
CSR Ltd v Eddy (2005) 226 CLR 1
Daniels Corporation International Pty Ltd v Australian Competition and Consumer
Davies v Eli Lilly & Co [1987] 1 All ER 801
New South Wales v Corby (2010) 76 NSWLR 439
Potter v Minahan (1908) 7 CLR 277
Rinaudo v Cleary [2012] ACTSC 5
ON APPEAL FROM A SINGLE JUDGE OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
No. ACTCA 57 – 2012
No. SC 246 of 2010
Judge: Refshauge J
Court of Appeal of the Australian Capital Territory
Date: 21 December 2012
IN THE SUPREME COURT OF THE ) No. ACTCA 57 – 2012
) No. SC 246 of 2010
AUSTRALIAN CAPITAL TERRITORY )
)
COURT OF APPEAL )
ON APPEAL FROM A SINGLE JUDGE OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
BETWEEN:NICHOLAS MORRIS CLEARY
Applicant
AND:DOMENICO RINAUDO
Respondent
ORDER
Judge: Refshauge J
Date: 21 December 2012
Place: Canberra
THE COURT ORDERS THAT:
Leave is granted to appeal against the decision of the Chief Justice given on
4 December 2012.
As condition of that leave, the applicant is to bear the respondent’s costs of the appeal.
The parties may, notwithstanding the grant of leave, sign a Certificate of Readiness in the Supreme Court proceedings No SC 264 of 2010.
The Supreme Court proceedings No SC 264 of 2010 may be listed for hearing so long as the listing is at a time not earlier than three months after the date of the hearing of the appeal, subject to any other order.
The hearing of the appeal is to be expedited
The matter is to be listed in the callover of the Court of Appeal on 6 February 2013.
The costs of the application for leave to appeal are to be costs in the appeal, which the respondent will have to bear.
The decision of the Chief Justice on 4 December 2012 is stayed until the disposal of the appeal.
IN THE SUPREME COURT OF THE ) No. ACTCA 57 – 2012
) No. SC 264 of 2010
AUSTRALIAN CAPITAL TERRITORY )
)
COURT OF APPEAL )
ON APPEAL FROM A SINGLE JUDGE OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
BETWEEN:NICHOLAS MORRIS CLEARY
Applicant
AND:DOMENICO RINAUDO
Respondent
Judge: Refshauge J
Date: 21 December 2012
Place: Canberra
REASONS FOR JUDGMENT
REFSHAUGE J:
Domenico Rinaudo, the respondent to the present application, says that on 22 July 2007 he was injured in a motor vehicle accident that occurred on the Monaro Highway in the Australian Capital Territory. On 7 May 2010, he commenced proceedings in the Supreme Court as plaintiff for damages for the personal injuries he said he suffered in the accident.
Such claims are now largely regulated by the Civil Law (Wrongs) Act 2002 (ACT) (the Wrongs Act), both as to steps that are required to be taken before proceedings are commenced and after the proceedings are commenced and when they are heard. In many ways, the provisions of that Act change the common law. The extent to which they make such changes is not always apparent on the face of the legislation and needs to be teased out in court decisions as particular circumstances arise. This is one of those particular circumstances.
Mr Rinaudo was, at the request of the applicant, examined by Dr W J Coyle, Orthopaedic Surgeon. Dr Coyle provided to Mr Cleary’s insurer a report dated 25 February 2010. That report was disclosed to Mr Rinaudo under the statutory regime of the Wrongs Act referred to below.
Dr Coyle further examined Mr Rinaudo on 2 December 2010 — that is, after Mr Rinaudo had commenced proceedings in the Supreme Court — and provided a report dated 20 December 2010, probably to the solicitors for Mr Cleary’s insurer, but perhaps to the insurer.
What is at issue is that the respondent seeks from the applicant, Nicholas Morris Cleary, the driver of the vehicle which Mr Rinaudo says caused him the injuries and defendant in the proceedings in the Supreme Court, a copy of the second report of Dr Coyle, who examined him in December 2010, at the request of the applicant’s solicitors for the purpose of the proceedings Mr Rinaudo had commenced. The applicant resists making the report available.
The Master, who has been hearing the application, made an order that the report be provided to Mr Rinaudo: Rinaudo v Cleary [2012] ACTSC 5. The applicant appealed against that decision, and on 4 December 2012 the Chief Justice dismissed the appeal: Cleary v Rinaudo [2012] ACTSC 179. The applicant now seeks leave to appeal against the decision of the Chief Justice.
THE REQUIREMENT FOR LEAVE
Leave to appeal is required because the decision is an interlocutory decision. Whether a decision is interlocutory can sometimes be difficult to determine, but in this case there can be no doubt about that.
In Arrow International Australia Ltd v Group Konstrukt Pty Ltd (2012) 7 ACTLR 48 at 58–9; [58], I summarised the principles that the courts have applied in determining whether leave should be granted. I said:
(a) leave will be granted sparingly to avoid delaying and fragmenting the hearing of cases;
(b) a court will be particularly hesitant to grant leave where the decision is one in respect of practice and procedure or is made in the exercise of a discretion;
(c) decisions which, though interlocutory, determine substantive rights will more readily be the subject of the grant of leave;
(d) the party seeking leave bears the onus of satisfying the court of the necessary criteria to justify the grant of leave;
(e) the court will ordinarily grant leave where the decision is wrong and prejudice will be suffered by the appellant;
(f) leave may also be granted where the decision is attended with sufficient doubt to warrant its reconsideration or, to put it another way, where the decision is “attended with difficulty and [its] correctness is open to dispute” (Decor Corporation Pty Ltd v Dart Industries Inc (1991) 33 FCR 397 at 400) and, if it is wrong, significant consequences will be suffered by the applicants; and
(g) it may be a factor favouring the grant of leave that:
(i) the decision involves a matter of public importance; or
(ii) the decision may affect the fairness of the trial, a consideration under s 21 of the Human Rights Act 2004 (ACT), though this can also weigh against the decision if the appeal results in unfair delay or fragmentation of the trial.
In Capital Property Projects (ACT) Pty Ltd v Planning and Land Authority (ACT) (2008) 2 ACTLR 44 at 52; [29], I added:
It may be that these principles should be applied more liberally in the light of s 21 of the Human Rights Act 2004 (ACT) which expresses the right to a fair trial since an error in the interlocutory decision may have the effect of derogating from the fairness of the trial.
THE ISSUES ON THE APPLICATION
At issue is the application of ch 5 of the Wrongs Act. That chapter is headed “Personal injuries claims—pre-court procedures”. It requires disclosure of certain documents by a respondent to a claimant, in certain cases, despite any client legal privilege that would otherwise protect the document from disclosure. The applicant says that the provisions cease to require such disclosure after court proceedings have commenced. The respondent says that they are a continuing obligation.
In effect, the applicant relies on the heading of the chapter, which is made, under
s 126(1) of the Legislation Act 2001 (ACT), a part of the Act, and is therefore available to assist in the working out of the meaning of the Act.
The respondent relies on case law from Queensland (Angus v Conelius [2007] QCA 190) which has similar but not identical provisions, and, in particular, does not have the same reference to “pre-court procedures”, nor the same purposes of the part under which the statutory disclosure obligations are contained. In summary, that purpose is to put the parties in a position where they have enough information to assess liability and quantum with respect to a claim. The purpose, the respondent says, is relevant right up until the verdict is entered by the Court, and hence the disclosure obligations continue. Both the Master and the Chief Justice favoured the respondent’s approach.
There is, also, a further issue as to whether the first report was privileged and, if it was, whether the disclosure, though compulsory under s 68 of the Wrongs Act, waived privilege such that the second report thereby lost any privilege that it may otherwise have had.
The Master held that the first report was not privileged. His Honour held, however, that had it been privileged the compulsory provision of it would not have waived any such privilege. The Chief Justice did not really deal with this point.
The applicant says that the issues that he wishes to agitate have significant importance for the management of cases under the Wrongs Act. They are, he says:
(a) Whether disclosure of a report under compulsion of law by operation of s 68 of the [Wrongs Act] constitutes service of the report.
(b)Whether there is conflict between the provisions contained in Chapter 5 of the [Wrongs Act] and Rule 1241 of the [Court Procedures Rules 2006 (ACT)], and if so, the extent of the conflict.
(c) Whether Chapter 5 ‘Personal injuries claims—pre-court procedures’ of the [Wrongs Act] apply to claims for damages for personal injuries once a Statement of Claim is filed and served in a court of competent jurisdiction
(d) Whether section 68 of the [Wrongs Act] continues to operate after court proceedings have commenced.
(e) Whether s 68 operates to abrogate common law rights in respect of client legal privilege.
(f) Whether the operation of s 68 with respect to documents created after commencement of court proceedings conflicts with rule 601 [of the Court Procedures Rules].
(g) If the disclosure obligations of Chapter 5 of the [Wrongs Act] continue to operate after the commencement of the proceedings, whether these provisions are inconsistent with s 119 of the Evidence Act 1995 (Cth).
I presume the reference at (g) must mean the Evidence Act 2011 (ACT), since that is now the Act that applies in this jurisdiction.
THE SUBMISSIONS
The applicant relied on the fact that client professional privilege was a fundamental right, and therefore can only be abrogated by legislation in the clearest terms. While the disclosure of documents is a matter of practice and procedure, it is clear that client professional privilege has been held to be “a fundamental civil and legal right” (Carter v Northmore Hale Davy v Leake (1995) 183 CLR 121 at 145, Corporate Affairs Commission (NSW) v Yuill (1991) 172 CLR 319 at 348) and “not merely a rule of evidence” (Daniels Corporation International Pty Ltd v Australian Competition and Consumer Commission (2002) 213 CLR 543 at 552).
Thus, the statutory override of such privilege is a matter of concern, and it may be said that such abrogation should be in the clearest of terms, as stated by O’Connor J in Potter v Minahan (1908) 7 CLR 277 at 304. This principle is regularly followed and applied in the courts of this jurisdiction and elsewhere.
I raised the question of whether this was a matter that should be dealt with on an appeal from the ultimate decision of the Court after the hearing.
Mr J E Sexton SC, who appeared for the applicant, submitted that once the report was disclosed the prejudice was irremediable. On an appeal, any re-trial that was thereafter ordered would not render the disclosure of the report irrelevant, and the disclosure would not be able to be undone. As to the delay likely to be caused by these proceedings, Mr Sexton noted that no Certificate of Readiness had yet been filed, but submitted that, were one to be filed shortly, the matter would not be likely to be listed, in the ordinary course of the business of this Court, because of the pressure of business in this Court, until well after the appeal had been heard. He submitted that the issue was one of significant public importance and so was worthy of appeal.
Mr G Stretton SC, who appeared with Mr D Stretton for the respondent, submitted that the regime introduced by the Wrongs Act, initiated by the wide-ranging reforms to personal injuries litigation proposed by the Ipp Report, meant that the proceedings were to be conducted on the basis of “cards on the table, face up”. He submitted that the issue was one of practice and procedure, which is rarely an appropriate subject of an appeal. He submitted that, even was the term “pre-court procedures” key to the argument, it did not necessarily restrict the ambit of the chapter to the period prior to the filing of the originating process. It could, he submitted, just as well refer to “pre-trial procedures”.
So far as I can tell, the phrase “cards face up on the table” was first used in a decided case by Donaldson M R in Davies v Eli Lilly & Co [1987] 1 All ER 801 at 804. That case was about discovery, the regime in which a party is protected from both disclosure and production for inspection for documents the subject of legal (or client) professional privilege. In that sense, it is not a phrase that, from that use, can be said to presage a regime that overrides privilege.
Mr Stretton also submitted that the applicant’s arguments failed to address the purpose of pt 5.3, which had been heavily relied on by both the Master and the Chief Justice. That purpose — “to put the parties in a position where they have enough information to assess liability and quantum in relation to a claim” — applies equally, in his submission, to the time up to trial as it would prior to the issue of an originating process.
Indeed, Mr Stretton submitted that there was as much value in such opportunity to promote settlement of claims in that period as before proceedings had commenced. His submission was that there would be no substantial injustice were leave to be refused; the report may well have to be served in any event were the applicant to rely on Dr Coyle’s first report at trial. There would, however, he submitted, be substantial injustice to the respondent because of the delay it would occasion. The injury happened in July 2007 and the litigation was commenced in May 2010.
I note that, of course, it was a matter within the power of the respondent as to the date when the proceedings were commenced.
Liability has been admitted; the only issue is as to quantum. If the report were to be disclosed — leading to a higher award of damages — Mr Stretton submitted that such an outcome hardly represented substantial injustice. Courts, he submitted, should encourage informed settlement of disputes.
He further submitted that, were I minded to grant leave, I should make it a condition that the applicant pay the costs of the appeal in any event and that the costs orders of the Master and the Chief Justice not be disturbed. He referred to what Gleeson CJ, Gummow and Haydon JJ said in CSR Ltd v Eddy (2005) 226 CLR 1 at 35; [81] as follows:
It is common in this Court in cases where the resolution of a point is desirable from the point of view of a large and recurrent litigant, whether corporate (for example, an insurance company) or governmental (for example, the Commissioner of Taxation or the Australian Competition and Consumer Commission), but the other party to the litigation is not a recurrent litigant and is not well-positioned to meet adverse costs orders on the point being tested, for the grant of special leave to be made conditional on appellants paying the other side’s costs in any event and on appellants not seeking to disturb costs orders in the courts below which were favourable to the other side.
Mr Stretton referred also to what he submitted was a further relevant factor, identified by Basten JA, with whom Beazley and Tobias JJA agreed, in New South Wales v Corby (2010) 76 NSWLR 439 at 441; [9], being a factor in favour of imposing a condition as to costs, namely, that “the uncertainty as to the correct outcome depends entirely upon a lack of clarity in the drafting of the legislation”. In that case, of course, it was the state which was the other party and the applicant for appeal, and could so be said to be responsible for the drafting of the legislation which was at issue in the case. That is not the case with the insurer who stands behind the applicant here.
It is relevant, however, that despite efforts by legal practitioners to encourage the Territory to establish one, there is no suitors fund or similar scheme available in such circumstances.
Mr Sexton submitted that, while such conditional orders were made in the High Court not infrequently, it was rare for such orders to be made in intermediate courts of appeal.
Nevertheless, I do note that the legislation here at issue is one that is peculiar to the Territory and, therefore, the Court of Appeal is likely to be the final arbiter on the construction of the legislation.
CONCLUSION
This is not an easy matter to resolve. It does seem to me that there is a real question to be determined. There is a question of substantive rights and, in my view, the abrogation of client professional privilege is not merely a matter of procedure. At the moment I cannot see that either the Master or the Chief Justice have given any meaning to the words “pre-court procedures”, a part of the Act, and that this, at least, is an indicator that the fundamental right of client professional privilege is not to be abrogated after the commencement of the proceedings.
Nevertheless, I am cognizant of the prejudice that would be suffered by the respondent. I am of the view that this prejudice could be ameliorated, and that the issue of construction could be resolved, by the granting of leave on terms.
The insurer indemnifying the applicant is a regular litigant in this Court and will gain substantial benefit, along with all other litigants of course, from the resulting clarity in the resolution of this issue by the Court of Appeal.
Accordingly, I propose to grant leave to appeal, but on terms. I will make orders accordingly.
I certify that the preceding thirty-three (33) numbered paragraphs are a true copy of the Reasons for Judgment herein of his Honour, Justice Refshauge.
Associate:
Date: 8 February 2013
Counsel for the applicant: Mr J E Sexton SC
Solicitor for the applicant: Sparke Helmore Lawyers
Counsel for the respondent: Mr G Stretton SC, Mr D Stretton
Solicitor for the respondent: Stacks//Compensation
Date of hearing: 19 December 2012
Date of judgment: 21 December 2012
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