Nielsen v Schiavello Manufacturing of Australia Pty Ltd (Ruling)
[2016] VCC 1096
•9 August 2016
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
| SERIOUS INJURY LIST |
Case No. CI-15-03553
| REX LASH NIELSEN | Plaintiff |
| v | |
| SCHIAVELLO MANUFACTURING OF AUSTRALIA PTY LTD | Defendant |
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JUDGE: | HIS HONOUR JUDGE SMITH | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 19 and 20 July 2016 | |
DATE OF RULING: | 9 August 2016 | |
CASE MAY BE CITED AS: | Nielsen v Schiavello Manufacturing of Australia Pty Ltd (Ruling) | |
MEDIUM NEUTRAL CITATION: | [2016] VCC 1096 | |
RULING
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Subject: PRACTICE AND PROCEDURE
Catchwords: Legal professional privilege – solicitor’s letter of advice to plaintiff disclosed by plaintiff to treating doctor – supplementary medical report provided (unrequested) by doctor to plaintiff’s solicitors with letter of advice attached – where further report of doctor required to be served under r33.08.1 – whether legal professional privilege in letter of advice waived by plaintiff
Legislation Cited: County Court Civil Procedure Rules 2008, r33.08.1, r2.04; Evidence Act 2008, s117, s188, s122; Evidence (Miscellaneous Provisions) Act 1958, s28(2); Accident Compensation Act 1985
Cases Cited:Mann v Carnell (1999) 201 CLR 1; Sharjade v RAAF Landings [2008] NSWSC 151; Royal Women’s Hospital v Medical Practitioners Board [2005] VSC 225; Hunter v Mann [1974] QB 767 at 772; A v Hayden (1984) 156 CLR 532
Ruling: Privilege in letter of advice not waived.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr L B R Allan | Slater & Gordon Ltd |
| For the Defendant | Mr J Gorton QC with Mr T Storey | Russell Kennedy |
HIS HONOUR:
1 In this matter, the plaintiff seeks orders pursuant to a Summons dated 5 July 2016.
2 The Summons relates to an Originating Motion in which the plaintiff seeks leave pursuant to s134AB of the Accident Compensation Act 1985 (“the Act”) to commence proceedings to recover damages in respect of injuries arising out of, or in the course of, his employment – a Serious Injury Application.
3 The relevant facts of which I am satisfied are as follows:
·In support of his application pursuant to s134AB of the Act, the plaintiff had, prior to May 2016, served upon the defendant a number of reports from his treating general practitioner, Dr Baro.
·By reason of Rule 33.08.1 of the County Court Civil Procedure Rules 2008, the plaintiff was required to serve upon the defendant any further report received from Dr Baro, regardless of whether he intended to rely on such further report in support of his claim.
·By letter dated 17 May 2016, the plaintiff’s solicitors wrote to the plaintiff setting out certain advice relating to his application (“the Letter of Advice”).
·At the time it was written, the Letter of Advice was a legally privileged communication from solicitor to client. Such was conceded by senior counsel for the defendant.
·The plaintiff received the Letter of Advice and, shortly after, attended on Dr Baro. Either the plaintiff or his wife showed the Letter of Advice to Dr Baro in order to obtain Dr Baro’s view on medical issues referred to in the Letter of Advice.
·On or about 2 June 2016, the plaintiff’s solicitors received by facsimile a supplementary report from Dr Baro. No further or supplementary report had been requested by the plaintiff’s solicitors from him.
·Dr Baro’s supplementary report commenced with the following words:
“Further to the information provided in the recent report, and after reading your letter to Mr Nielson dated 17 May 2016, I would make the following comments.”
·The letter referred to by Dr Baro is the Letter of Advice.
·Dr Baro had attached the Letter of Advice to his supplementary report when he sent it to the plaintiff’s solicitors.
·Upon receipt of the supplementary report, the plaintiff’s solicitor formed the view that the plaintiff was compelled by Rule 33.08.1 to serve it on the defendant. However, before doing so, the solicitor removed the attached Letter of Advice from it.
·The defendant has requested production of the Letter of Advice. The defendant became aware of its existence because of the specific reference to it in Dr Baro’s supplementary report.
4 The plaintiff, in this Summons, seeks orders as follows:
(i)That the Letter of Advice be removed from the clinical records of Dr Baro;
(ii)That the plaintiff be permitted to serve the supplementary report on the defendant, without the Letter of Advice attached;
(iii)In the alternative to (ii), pursuant to Rule 2.04, the Court dispense with the requirement under Rule 33.08.1 to serve the supplementary report on the defendant;
(iv)Costs.
5 An Affidavit in Support of the plaintiff’s application, affirmed by the plaintiff’s solicitor, Mr Yi-Chuan Chen, was tendered. It provides some additional evidence, namely:
·At no time did the plaintiff’s solicitors intend, or apprehend the possibility, that the Letter of Advice would be disclosed to any person other than the plaintiff or his wife.
·The plaintiff, in bringing the Letter of Advice to the attention of Dr Baro, did not intend to waive privilege over the contents of the letter.
6 The parties agreed that I should read the Letter of Advice and I have done so.
7 The plaintiff maintains that the whole of the Letter of Advice is privileged and that privilege has not been waived.
8 The defendant submits that while the Letter of Advice was privileged at the time it was sent to, and received by, the plaintiff, that privilege was waived when he or his wife provided the Letter of Advice to Dr Baro.
9 The defendant does not contend that such privilege was waived by:
(a) the provision of the Letter of Advice by the plaintiff to his wife; or
(b) the provision of the supplementary report (without the attachment) to the defendant’s solicitors.
10 It being the defendant that alleges a waiver of privilege in respect of the Letter of Advice, it carries the burden of proving that the privilege has been lost.[1]
[1]Sharjade v RAAF Landings [2008] NSWSC 151
11 Section 118 of the Evidence Act 2008 provides as follows:
“Evidence is not to be adduced if, on objection by a client, the court finds that adducing the evidence would result in disclosure of—
(a)a confidential communication made between the client and a lawyer …
for the dominant purpose of the lawyer…providing legal advice to the client.”
12
The term “confidential communication” is defined in s117(1) of the Evidence Act as meaning:
“… a communication made in such circumstances that, when it was made—
(a) the person who made it; or
(b) the person to whom it was made—
was under an express or implied obligation not to disclose its contents, whether or not the obligation arises under law.”
13 Section 122 of the Evidence Act deals with loss of client legal privilege. Section 122(2) provides that the division does not prevent the adducing of evidence if the client has acted in a way which is inconsistent with the client objecting to the adducing of evidence because it would result in a disclosure of the kind referred to in s118, s119 or s120.
14 Section 122(3) provides that:
“… a client … is taken to have so acted if—
(a)the client or party knowingly and voluntarily disclosed the substance of the evidence to another person; or
(b)the substance of the evidence has been disclosed with the express or implied consent of the client or party.”
(My emphasis).
15 Section 122(5) provides that:
“A client … is not taken to have acted in a manner inconsistent with the client … objecting to the adducing of the evidence merely because—
(a)the substance of the evidence has been disclosed—
(i)in the course of making a confidential communication or preparing a confidential document; or
(ii)…
(iii)under compulsion of law … .”
(My emphasis.)
16 The defendant submits that:
(a) Section 122(2) is engaged because the plaintiff, in showing the Letter of Advice to Dr Baro, has acted in a way that is inconsistent with him objecting to the adducing of evidence of it because it would result in a disclosure of a kind referred to in s118;[2]
(b) Alternatively, it submits that s122(3) is engaged because the plaintiff knowingly and voluntarily disclosed the substance of the evidence (ie the Letter of Advice) to another person, namely Dr Baro.
[2]Neither party submitted that either s119 or s120 had application here
17 It is clear that the Letter of Advice was knowingly and voluntarily disclosed to Dr Baro. There is no suggestion that it was accidentally or involuntarily shown to him or that, if it was the plaintiff’s wife who showed it to him, that his wife did so without the plaintiff’s authority.
18 I note that Mr Chen deposes that he is instructed that the plaintiff, in bringing the Letter of Advice to the attention of Dr Baro, did not intend to waive privilege over the contents of the letter. It seems inherently unlikely to me that the plaintiff would have had any knowledge of the law relating to privilege and waiver. The Letter of Advice contains no mention of such matters. There is no suggestion in Mr Chen’s affidavit that he had advised the plaintiff at or before the date of the Letter of Advice of such issues or of any need to protect privilege.
19 Sub-sections 122(2) and (3) are expressed to be subject to s122(5) which provides that a client is not to be taken to have acted in a manner inconsistent with the client objecting to the adducing of the evidence merely because the substance of the evidence has been disclosed in the course of making a confidential communication or confidential document.
20 In my view, it follows that, if the Letter of Advice (or the substance of it) was knowingly and voluntarily provided by the plaintiff to Dr Baro then, unless s122(5) applies, the plaintiff would be deemed to have acted in a way that was inconsistent him objecting to the adducing of evidence of the Letter of Advice.
21 Upon consideration of ss(2), (3) and (5), I consider that the issue to be determined is whether the Letter of Advice (or the substance of it) was disclosed by the plaintiff to Dr Baro in the course of a “confidential communication” to him.
· If it was not, I consider that, by reason of s122(3)(a), the plaintiff is taken to have waived privilege in the Letter of Advice.
· If it was, then I consider that, by reason of s122(5), privilege would not have been waived by the plaintiff.
22 A communication between a patient and a treating doctor has often been regarded as confidential. In Royal Women’s Hospital v Medical Practitioners Board,[3] Gillard J said:
“There are a number of well established principles of law concerning the doctor-patient relationship. …
• …
• The relationship of doctor-patient is a confidential one and equity precludes a party to the relationship from disclosing any information without the consent of the other party. This is the general rule and courts may grant an injunction to restrain the disclosure of the information.
• The law has recognised a need to break a confidence in a doctor-patient relationship in the interests of the public and accordingly the general rule applies ‘save in very exceptional circumstances’.”[4]
[3][2005] VSC 225
[4]Hunter v Mann [1974] QB 767 at 772; A v Hayden (1984) 156 CLR 532
23 Section 28(2) of the Evidence (Miscellaneous Provisions) Act 1958 provides that no physician or surgeon shall, without the consent of his patient, divulge in any civil proceeding any information which he has acquired in attending the patient and which was necessary to enable him to prescribe or act for the patient. In the circumstances of this matter, I do not consider that the section has application. Having read the Letter of Advice, I do not consider that it could be described as containing information which was necessary to enable Dr Baro to prescribe or act for the plaintiff.
24 Neither did the Letter of Advice contain any information that would have assisted Dr Baro in reaching the opinions set out in his supplementary report.
25 The definition of the term “confidential communication” in s117 of the Act (which I have set out above) focusses on whether the plaintiff or Dr Baro was “under an express or implied obligation not to disclose its contents, whether or not the obligation arises under law”.
26 Plainly, the plaintiff was under no such obligation. He was at liberty to disclose the Letter of Advice to anyone. Further, as referred to above, there was nothing to indicate that the plaintiff understood the concepts of a privileged letter and waiver of such privilege. In the absence of any evidence to the contrary, I consider it unlikely that the possible waiver of privilege by handing it to Dr Baro had ever crossed the plaintiff’s mind.
27 The position regarding Dr Baro is different. It was not his privilege to waive. Absent authority from the plaintiff, Dr Baro was under a duty not to disclose information concerning the plaintiff to other persons. That, in my view, would include disclosing the contents of the Letter of Advice to anyone else. Dr Baro merely returned the Letter of Advice to its author, which I do not consider to be inconsistent with that duty. I do not consider the provision of the Letter to Dr Baro constituted very exceptional circumstances so as to break the doctor-patient relationship referred to by Gillard J.
28 I do not consider that the physical attachment of the Letter to the supplementary report has relevance here. He was merely forwarding the Letter back its author and no-one else.
29 It would be different if Dr Baro had used information provided in the Letter in the preparation of the opinions expressed in that report. Had he done so, then the material provided to him and on which he had wholly or partly based his opinions would be relevant to understanding his opinions and the basis for them. Having read the supplementary report and the Letter of Advice, I am satisfied that there is nothing in the Letter which could have formed a basis for any of Dr Baro’s opinions expressed, or have been of any assistance to him in reaching those opinions.
30 Accordingly, I am satisfied that the Letter of Advice was disclosed to Dr Baro in the course of the plaintiff making a “confidential communication” to him. It follows that s122(5)(a)(i) is engaged.
31 Whilst I am conscious of the inclusion of the words “merely because” as used in s122(5), I am satisfied that, in showing the Letter of Advice to Dr Baro, the plaintiff was not acting in a way that was inconsistent with him objecting to the adducing of the evidence of it or contained in it.
32 In the event that a subpoena was served upon Dr Baro, I consider that he would not be required to produce the Letter of Advice or any copy of it in answer to such subpoena.
33 I shall order that the plaintiff be permitted to serve the supplementary report of Dr Baro with any reference to the Letter of Advice or of it being attached to the report redacted from it.
34 I shall hear the parties with regard to costs of and incidental to the Summons.
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